M.K. v. R.L.K., Jr. Appeal of: M.K.

• Court: Superior Court of Pennsylvania
• Decided: October 24, 2017
• Docket: 477 MDA 2017
• Status: Unpublished

Opinion

J-S48035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.K. IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

R.L.K., JR.

APPEAL OF: M.K.

No. 477 MDA 2017

Appeal from the Order Entered February 15, 2017 in the Court of Common Pleas of Dauphin County Civil Division at No.: 2016-CV-3466-CU

BEFORE: OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED OCTOBER 24, 2017

M.K. (Mother) appeals the order of the Court of Common Pleas of

Dauphin County (trial court) entered February 15, 2017, that granted primary

physical custody of the parties’ children, M.K. (born 12/09), E.K. (born 5/14),

and A.K. (born 6/16) (Children), to Mother and supervised visitation to R.L.K.

(Father). The order denies permission for Mother to relocate to Utah and

grants permission to Father to relocate to Franklin County, Pennsylvania. The

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S48035-17

order also provides that either party may apply to modify the order after the

resolution of certain criminal charges pending against Father.1 We affirm.

1In final paragraph in the order complained of, paragraph 12, the trial court states:

12. When Father’s criminal charges are resolved, either party may contact the [c]ourt to schedule a status conference.

(Trial Court Order, 2/15/17, at ¶ 12).

This sentence indicates that the trial court anticipates the possibility of further proceedings, raising the question of whether the order is final and appealable. We find that it is.

This Court addressed the question of the finality of an order where the trial court enters an order of custody and anticipates a review of its order only upon the application of one of the parties in Parker v. MacDonald, 496 A.2d 1244 (Pa. Super. 1985). In Parker, we explained:

We agree with appellee that the current posture of this case would prevent us from entertaining this appeal if it were an interlocutory order. However, we are unable to conclude that the Order of November 14, 1985, lacks finality. Concededly, the lower court by its own terms provided for review of its order in July, 1985, but only upon application for such review by either party. This case was not scheduled for subsequent review by the lower court. Rather, the court below encouraged the amicable resolution of the custody of their son by the parties themselves. If the parties reached an agreement, it is possible that further court intervention would not be required. Thus, the Order of November 14, 1984, effectively ended the litigation, and constituted a final order appropriate for review.

Moreover, the challenged Order disposed of the parties’ rights to custody during the period between November, 1984, and July, 1985, and thereafter unless and until a petition for re-examination of custody is filed by one of the parties. We conclude that the Order has sufficient aspects of finality to be appealable. The motion to quash is therefore denied.

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The trial court recites the factual details of this case in its Memorandum

Opinion filed February 15, 2017, and in its Opinion Pursuant to Pa.R.A.P.

1925(a) entered April 17, 2017. We relate the relevant procedural details of

this case in our discussion below.

After holding hearings on September 6, 2017, January 6, 2017, and

January 19, 2017, the trial court entered the order appealed from on February

15, 2017, accompanied by a memorandum in which it explained its reasoning

underlying the order. Mother filed her notice of appeal and concise statement

of errors complained of on appeal on March 17, 2017. See Pa.R.A.P.

1925(a)(2)(i). On April 17, 2017, in response to Mother’s notice of appeal,

the trial court entered an opinion pursuant to Pa.R.A.P. 1925(a). In that

opinion, the trial court addresses Mother’s issues raised on appeal and refers

the reader to its memorandum of February 15, 2017. ____________________________________________

496 A.2d, at 1247 (emphasis in original).

This Court affirmed Parker in G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1996), where, referring to Parker, we stated:

We concluded that the language of the trial court’s order merely made explicit what is always implicit in a custody order-the availability of modification upon a proper showing by the parties- and hence that the finality of the order, which otherwise constituted a complete resolution of the parties’ dispute, was not vitiated.

670 A.2d at 718 (citation omitted).

The facts in the case before us are similar to Parker and G.B. in that the order will stand as written unless one of the parties applies to the trial court for a modification; as such, it is final and appealable.

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Mother presents ten questions with eight sub-issues spanning two pages

for us to review. (See Mother’s Brief, at 5-6). This is not the form of the

statement of questions involved contemplated by Pa.R.A.P. 2116, but it is an

improvement over the twelve pages, eleven issues, and ten sub-issues, in

Mother’s Rule 1925(b) statement. We quote the trial court, with approval, on

the question of which issues are fairly incorporated in Mother’s concise

statement, and adopt the court’s analysis of which issues should be

addressed:

[Mother] filed a notice of appeal on March 17, 2017—the last possible day in which the notice could be filed and considered timely. Simultaneously, [Mother] filed a Statement of Errors Complained of on Appeal (hereinafter ‘Statement’) pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). However, this [c]ourt will not classify the Statement as being ‘concise’ as required by the rules as it consists of eleven (11) main issues, ten (10) sub-issues, and spans a total of twelve (12) pages. In addition to the overwhelming length, the Statement is riddled with opinions and characterizations by counsel that are inappropriate, irrelevant, and some completely inaccurate. As much as this [c]ourt would like to find that [Mother] has waived her issues for her failure to comply with the ‘concise’ requirement, it cannot in good conscience do so because once stripped of extraneous comments, opinions and extra verbiage, the issues are mostly discernable.

After removing counsel’s extraneous comments, opinions, and extra verbiage, this [c]ourt has discerned the following issues that we will address:

1. The [c]ourt erred by failing to address the custody factors enumerated at 23 Pa.C.S.A. § 5328(a).

2. The [c]ourt erred in disregarding the testimony of the agreed- upon expert, Dr. Laurie Pittman.

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3. The [c]ourt erred by granting Father’s request for relocation without considering any of the relocation factors enumerated at 23 Pa.C.S.A. § 5337.

4. The [c]ourt erred in awarding Paternal Grandparents visitation rights.

5. The [c]ourt erred by depriving Mother of her constitutional right to travel.

(Trial Court Opinion, 4/17/17, at 1-2) (footnote omitted).

Our scope and standard of review is as follows:

In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

We have stated,

[T]he discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).

The primary concern in any custody case is the best interests of the

child. “The best interests standard, decided on a case-by-case basis,

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considers all factors which legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well-being.” Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006) (citation omitted).

Additionally,

[t]he parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court’s consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (citation omitted).

We will affirm the trial court largely on the strength of its Memorandum

and Pa.R.A.P. 1925(a) Opinion entered on February 17, 2017, and April 18,

2017, respectively. We will, however rely on our own analysis of the question

of whether the trial court was required, in these particulars circumstances, to

address each of the sixteen custody factors delineated in 23 Pa.C.S. §

5328(a). We find that it was not.

Mother and Father were married in Utah. They were living in Halifax,

Dauphin County, Pennsylvania, when Mother initiated this case by filing a

complaint for custody on May 5, 2016. Mother also filed a notice of relocation

to Utah to which Father filed a counter-affidavit and his own notice of

relocation to Franklin County, Pennsylvania, to which Mother filed a counter-

affidavit. The trial court entered an agreed custody order in this matter on

June 13, 2016, following a pre-trial conference. That order awarded Mother

primary physical custody and awarded Father supervised visitation. The

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parties shared legal custody. No one made an objection to this order and no

one appealed from it. Mother filed a request for a full hearing on relocation

on July 12, 2016, that the trial court scheduled for September 6, 2016.

Mother filed an emergency petition for special relief on August 2, 2016,

in which she asked the trial court to, “enter an Order suspending Father’s

rights to supervised visitation until resolution of the pending criminal matter.”

(Mother’s Petition for Special Relief, at 4 (unpaginated)). Mother sought to

suspend Father’s supervised visitation while the police investigated Mother’s

allegations that Father had acted inappropriately around the Children,

allegations that had been investigated and deemed unfounded by Dauphin

County Children and Youth Services. Mother filed a petition for protection

from abuse (PFA) on August 4, 2016, that she based on the allegations in her

petition for special relief. The trial court denied Mother’s petition for special

relief on August 5, 2106. The trial court held hearings on Mother’s PFA petition

and the two relocation requests on September 6, 2016, January 6, 2017, and

January 19, 2017. On February 17, 2017, the trial court entered the order

complained of in which it denied Mother’s request for relocation, approved

Father’s request, and resolved Mother’s PFA by defining Father’s supervised

visitation.

The order of February 17, 2017 provides that the parties shall share

legal custody, Mother shall have primary physical custody and that Father

shall have supervised visitation two days per week at a specified location.

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According to the trial court, “The February 15, 2017 Order did not alter the

custody that had been previously entered aside from the location of the

supervised visitation - Mother was provided primary custody, and Father

supervised visitation at ABC House at least once per week – pending resolution

of the criminal charges.” (Trial Court Pa.R.A.P. 1925(a) Opinion, 4/18/17, at

4). Thus, in addressing the question of custody, the order denies Mother’s

PFA and preserves the status quo ante established when the trial court entered

the original custody order on June 13, 2016, with the exception of the

subsidiary issue of how Father is to exercise supervised visitation. The trial

court did not make any award of custody that did not already exist. In its

Memorandum in support of its order entered February 17, 2017, the trial court

addresses the relocation factors in section 23 Pa.C.S.A. §5337(h), but did not

discuss the sixteen custody factors listed in 23 Pa.C.S.A. §5328(a). Mother

claims that this was error. We disagree.

This Court has said “[A] trial court must apply the § 5328(a) factors and

issue a written explanation of its decision when it orders any of the seven

forms of custody provided for by the [Child Custody] Act.” S.W.D. v. S.A.R.,

96 A.3d 396, 402 (Pa. Super. 2014). The seven forms of custody provided

for by the Act are:

(a) Types of award.--After considering the factors set forth in section 5328 (relating to factors to consider when awarding custody), the court may award any of the following types of custody if it is in the best interest of the child:

(b)

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(1) Shared physical custody. (2) Primary physical custody. (3) Partial physical custody. (4) Sole physical custody. (5) Supervised physical custody. (6) Shared legal custody. (7) Sole legal custody. 23 Pa.C.S.A. § 5328(b).

In her brief, Mother claims, “The law clearly requires the [trial]

court to consider all Custody Factors when ordering any form of custody;

no change is required to trigger the court’s obligation to place it’s

reasoning on the record.” (Mother’s Brief, at 12-13). Mother clearly

misreads our law, which requires a trial court to consider the custody

factors only when awarding any of the seven forms of custody listed

above. In this case, the trial court addressed only the subsidiary issue

of Father’s supervised visitation.

This Court addressed a similar set of facts in M.O. v. J.T.R., 85

A.3d 1058 (Pa. Super. 2014). In M.O., the father filed a petition for

modification. At a pre-trial conference, the parties resolved all the

issues except a question relating to the father’s summer visitation. The

trial court held a hearing in which the parties addressed that one

subsidiary issue, after which the trial court issued an order of custody

without discussing the sixteen custody factors. Mother appealed,

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claiming that it was error not to address those issues. This Court

disagreed, stating:

Following the hearing in this case, the trial court made no award of custody. The court was not deciding physical or legal custody, nor even changing the amount of custodial time that either party had with the Children. Rather, the trial court addressed a subsidiary issue: whether Father was required to be off from work while the Children stayed with him for a portion of the summer. After hearing the evidence that the parties presented limited to that sole issue, the trial court decided that Father could work during the three weeks in question. While the court’s ruling modified its prior order, it did not change the underlying award of custody. Therefore, under the facts of this case, Section 5328(a) was not implicated directly.

Id. at 1062-63.

The case before us is similar to M.O. Here, the parties agreed to an

order of custody at a pre-trial conference and the trial court entered an order

based on that agreement. By filing her PFA, Mother sought to modify the

order by restricting Father’s visitation. When it entered the order complained

of, the trial court did not change the underlying award of custody, and did not

award any form of custody that either party did not enjoy prior to the

relocation/PFA hearing; it simply resolved the subsidiary issue of Father’s

supervised visitation and thus section 5328(a) was not implicated directly.

M.O., supra. 2

2 We are aware of this Court’s opinion in A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014). However, A.V. involved a direct modification of the “type” of custody (from shared physical to partial physical custody) and substantially reduced Father’s time with the children, and thus we find it distinguishable.

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As to the remaining issues, we have carefully reviewed the trial court’s

Memorandum Opinion filed February 15, 2017, and in its Opinion Pursuant to

Pa.R.A.P. 1925(a) entered April 17, 2017, and we find them, taken together,

to be a correct and complete analysis of the remaining issues Mother raises

on appeal. Accordingly, we affirm the order of the trial court entered February

15, 2017, on the basis of those opinions.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/24/2017

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IN THE COURT OF COMMON PLEAS OF Plaintiff DAUPHIN COUNTY, PENNSYLVANIA

v. NO. 2016 CV 3466 CU . . ---- ---- - ~ CIVIL ACTION - LAW Defendant IN CUSTODY

MEMORANDUM OPINIOfrJ - · ,:(i ~ The instant matter was initiated on May 5, 2016, uponjthe filing of a Complaint~. j Custody by Plaintiff (hereinafter "Mother") naming Defendant-

- (hereinafter "Father"), and seeking primary physical custody of their minor

children, M.K. (12/2009), E.K. (5/2014), and AK. (6/2016)1.

On May 20, 2016, Father filed a Counter-Affidavit Regarding Relocation objecting

to Mother's proposed relocation, and requested a hearing prior to allowing the children to

relocate. Father then filed a Notice of Proposed Relocation on May 26, 2016, requesting

permission for the children to relocate to Waynesboro, Franklin County, Pennsylvania

where he and paternal grandparents currently reside. Thereafter, Mother filed a Motion

for Full Expedited Hearing on Relocation, as well as a Counter-Affidavit Regarding I

Relocating objecting to Father's proposed relocation. This Court schedulJd a pretrial ) I conference for June 13, 2016.

Prior to the filing of the Complaint, a referral for possible sexual abuse of the

children was made to Dauphin County Children and Youth Services (hereinafter

"DCCYS"). On April 14, 2016, DCCYS Caseworker Autumn Ricker (hereinafter

"Caseworker. Ricker") and Trooper Raschard Buie (hereinafter "Trooper Buie")

1 AK. was born during the pendency of this action. He was not originally named in the Complaint as it was filed prior to his birth.

Page 1 of 23 interviewed Mother at her residence, who stated that she knew Father had been

diagnosed with Obsessive Compulsive Disorder (hereinafter "OCD"), but after the birth of

M.K. in 2009, Father began to act "very weird". In addition, she stated the following:

[T]hat as a result she became very concerned with [Father's] behavior and asked him what was going on. [Father] explained to her that his "OCD" was related to a sexual orientation that he has towards children. She stated that [Father] will often blurt aloud such phrases as, "No! No!" and "Stop It" to get "thoughts" out of his head. She stated that she was overly concerned but [Father] assured her that he had it "under control".

****

[Mother] stated that [Father] likes to "repeatedly" kiss their daughters on the lips. She stated that her father was visiting and observed [Father] give MCK a prolonged kiss which "freaked" her father out. She confronted [Father] after this incident and related to him that she was not comfortable with him kissing MCK & EK in this manner and [Father] stated, "it makes me feel good and I'm not stopping".

[Mother] stated that as recent as March 17th, 2016 [Father] was snuggling on the couch with EK in the living room and she heard "kissing noises" and came into the room to see what was going on. She began to feel awkward and uncomfortable and asked [Father] to stop. He refused and again .stated, "it makes me feel good". He continued to do the lip kisses and she again asked him to stop and he again refused. She stayed in the living room to closely observe the situation. As [Father] continued to snuggle with their daughter on the couch he made the statement, "I'm becoming aroused sitting here with our daughter". [Father] asked her if he was "being bad". After this incident she feared for the safety and protection of her children as [Father] has never been "so blunt and bold in his description".

[Mother] stated that [Father] seeks validation for his feelings and behaviors' and often asks her if he is doing something wrong or "am I ok?" She stated that she was not going to validate his feelings after this incident and stated, '1lllllt only you know what you are feeling and thinking, so only you know if your behavior is inappropriate." [Father] became frustrated

Page 2 of 23 and stated, "What", "I'm just asking for your support; I just need your support". She then picked up EK and put EK and MCK to bed for the night.

See Police Criminal Complaint, August 2, 2016, Incident Number PA 16-104545.

That same day, Caseworker Ricker and Trooper Buie conducted a preliminary

interview of Father wherein he stated the following:

He conducted a religious "mission" trip years ago and was. informed that he could not "touch, put kids on laps, or show affection to children" as a rule while on the mission. He has had problems getting close to MCK and EK ever since the conclusion of his mission trip and only recently has he been able to establish a relationship with MCK and EK. [Father] stated that he may "bump" into MCK and because "it's his OCD" he then asks MCK if he "bumped" into her and apologizes .

. . . (Father] asked if he could "give the kids some candy" prior to him leaving the residence. (Trooper Buie and Caseworker Ricker] advised (Father] that he could give MCK and EK candy before' leaving the residence. Upon, leaving the residence, [Father] stated to MCK, "give daddy a hug". As MCK approached [Father], [Trooper Buie] observed her to attempt to kiss (Father] on the lips and [Father] turned his head to the side and stated, "no honey ..... on the cheek". MCK kissed (Father] on the cheek and [Father] subsequently left the residence.

See Police Criminal Complaint, August 2, 2016, Incident Number PA 16-104545. Father

agreed to leave the marital residence and have no contact with the children for thirty (30)

days pursuant to a safety plan which prevented the children from being placed in foster

care. On April 18, 2016, the Honorable John F. Cherry confirmed the safety plan. On

May 14, 2016, the safety plan expired without incident. After an investigation by DCCYS,

which included an interview of M.K. at the Children's Resource Center that yielded no

disclosures, the allegations were determined to be unfounded as of June 13, 2016.

Page 3 of 23 Following the pretrial conference on June 13, 2016, the parties agreed that Father

would undergo a § 5329 assessment, and Mother would complete the Minnesota

Multiphasic Personality Inventory II ("MMPl-11"), both to be conducted by Laurie Pittman

at Beacon Psychological. In addition, this Court ordered primary physical custody of the

children remain with Mother, and permitted Father to have supervised visitation with the

children at the YWCA, as well as visit with his newborn son in the hospital.2 On July 12,

2016, Mother filed a Renewed Motion for Full Expedited Hearing on Relocation, and this

Court subsequently scheduled a hearing for September 6, 2016.

On August 2, 2016, prior to the scheduled hearing, Mother filed a Petition to Modify

Custody, as well as an Emergency Petition for Special Relief. The Emergency Petition

stated that criminal charges were formally brought against Father on August 2, 2016, and

requested Father's periods of supervised visitation be suspended pending resolution of

the criminal charges.3 Despite the request, Father's periods of supervised visitation had

yet to begin. Two days later, on August 4, 2016, Mother filed a Petition for Protection

from Abuse ("PFA") raising the same allegations that were investigated and deemed

unfounded by DCCYS, are currently being investigated by the Pennsylvania State Police,

and that were raised as the basis for the Emergency Petition. A temporary protection

order was granted protecting Mother and the three (3) minor children. Mother's

Emergency Petition was subsequently denied by this Court on August 5, 2016. Since this

2 See Order of June 13, 2016, 3Father was originally charged with two (2) counts of Indecent Assault (M1 ), two (2) counts of Corruption of Minors (M1 ), and two (2) counts of Unlawful Contact With Minor- Sexual Offenses (F3). The two (2) counts of Unlawful Contact with Minor were subsequently withdrawn, and the remaining charges have been bound over for court. The case is currently scheduled for miscellaneous court on April 5, 2017 before the Honorable Scott A. Evans. CP-22-CR-6909-2016.

Page 4 of 23 Court is assigned the custody action, V'./8 were also assigned the PFA action as the two

are interrelated.

On August 16, 2016, Father filed a Petition for Special Relief stating that the parties

attempted to begin supervised visitations at the YWCA, but were told that the YWCA

could not facilitate visits for the family and were referred to two (2) other entities - Catholic

Charities and Alternative Behavior Consultants ("ABC") House. It further stated that

Mother refused to agree on Catholic Charities, and requested an Order requiring Mother

to make the children available for a minimum of two (2) supervised visits per week.

Thereafter, this Court conducted a status conference on Septernbert. 2016 with counsel

for the parties and subsequently ordered supervised visitation between Father and the

children to occur at ABC House by agreement of the parties.4

On September 6, 2016, this Court conducted a PFA and relocation hearing in

which both parties testified. In addition, we heard testimony from Christina Masser

(M.K.'s kindergarten teacher), Trooper Buie, Caseworker Ricker, Dr. Laurie Pittman

(forensic psychologist), Carla Sauer (principal at Halifax Elementary School), Dr. Dwayne

Narayan (Father's psychiatrist), (Maternal Grandfather), -

(Maternal Aunt), and (Paternal Aunt). At the

conclusion of the testimony pertinent to the allegations of abuse, this Court dismissed

Mother's PFA since adequate safety protocols were already in place and the PFA would

serve no further purpose.

Dr. Laurie Pittman (hereinafter "Dr. Pittman") is a forensic psychologist who

conducted a risk assessment of Father, and a MMPl-11 evaluation of Mother. While Or.

4 See Order of September 1, 2016.

Page 5 of 23 · Pittman is a highly qualified and well-regarded professional in the area, her testimony in

this particular case appears to this Court to be possibly biased. Mother and her family

raised a concern about Father's potential hoarding and provided Dr. Pittman with several

pictures from a trailer that the parties lived in between 2011 and 2013. (Notes of

Testimony, Custody Hearing 9/6/16 (hereinafter "N.T. 9/6/16") at 89). Throughout her

report of Father, Dr. Pittman repeatedly mentions the issue of hoarding when there does

not appear to be a relevant context in which to mention it. For example, in reporting on

her interview with (Paternal Aunt), she writes:

1j malso recalls on another occasion they went to the mall to purchase a pair of jeans for11111 but I S reported, "No, I don't think we can do that today."

This evaluator realizes that what is not indicated here is compulsive spending on "toys" and other collections and that .. SL resents nott prioritizing the physical safety of the children given his. hoarding. ·

See Plaintiff's Exhibit 4, Psychological Report of ••••••••••t authored

by Dr. Laurie Pittman, 6/30/2016 at p. 35. Later in the report, Dr. Pittman writes of

••••-- • recollection of meeting Maternal Grandfather on four (4) occasions.

Immediately following the paragraph _regarding ....... impression of Maternal

Grandfather, Dr. Pittman writes: "In the phone interviews with

-sister .. they report of extreme discomfort for - as well as his

father's hoarding." See Psychological Report of authored

by Dr. Laurie Pittman, 6/30/2016 at p. 36. Despite Dr. Pittman's apparent belief that the

alleged hoarding creates a significant concern with Father's ability to have unsupervised

contact with the children, as well as the safety of the children, Dr. Pittman admitted that

Page 6 of 23 she did not question Father or his family about the alleged hoarding. (N.T. 9/6/16 at 103-

104).

During our proceedings, Father and his family testified extensively about the

hoarding allegations. Their testimony revealed that both Father and Mother had hoarding

tendencies, and the pictures provided to Dr. Pittman conveniently did not depict Mother's

portion of the clutter. The testimony also revealed that neither Father nor Mother were

exceptional housekeepers, and the combination of the two is what led to the "deplorable"

living conditions as described by Maternal Grandfather. (Notes of Testimony, Custody

Hearing 1/6/17 (hereinafter "N.T. 1/6/17") at 115-16). In addition, the pictures provided

to Dr. Pittman were taken after the parties moved from Virginia to Pennsylvania, and the

parties were initially residing in Paternal Grandparents' home while the trailer was being

finished for the parties. (N.T. 1/6/17 at 114). However, when Paternal Grandparents'

asked the parties to contribute by taking on some of the household tasks, Mother

adamantly refused and demanded that they leave Paternal Grandparent's home

immediately and caused the parties to move into the trailer prematurely. (N.T. 1/6/17 at

114-15).

In addition, Dr. Pittman testified that she believes that Father's family were not

truth-telling. (N.T. 9/6/16 at 89, 95). Her opinion is based on the fact that "they were not

giving me the full picture of what was going on via the interactions that P .. • ;; ] Father

was trying to have with •••• , with rwrm••FtJThey had a tendency to provide a lot of

5 Dr. Pittman is referring to Father's statement that Maternal Grandfather is controlling and he had several conversations with Maternal Grandfather regarding money, and Maternal Grandfather's disappointment with Father for not earning enough money. In contrast, Maternal Grandfather stated to Dr. Pittman that he was merely concerned about the safety of the children due to the alleged hoarding, and attempts to discuss it with Father were unsuccessful. Notably, Maternal Grandfather testified that he never brought up the hoarding issue directly to Father because he wanted to respect their privacy. (N.T. 9/6/16 at 217).

Page 7 of 23 indications of where I should be looking at , not at '(N.T. 9/6/16

at 89). She further testified, "[n]obody talked about the hoarding. They talked about the

father-in-law coming across as cold and as snobbish. They were not talking about the

at 96). As stated earlier, despite Dr. Pittman's apparent fixation on the hoarding issue,

and Father and his family's failure to talk about it, Dr. Pittman failed to ask Father or any

of his family members about the alleged allegations.

In contrast, Dr. Pittman believed Mother's family was very truthful and forthcoming.

This is troubling to the Court as the testimony in our proceedings revealed that Father's

family has always been extremely involved in caring for the minor children, and would

frequently visit the parties wherever they were living. As Mother's family primarily resides

in Utah, Maternal Grandfather admitted that they would only visit the parties once or twice

a year for approximately one (1) week at a time. (N.T. 9/6/16 at 199). ,-1 ' .,·· .\_,· ', .... '. ,' ..;;;

(Maternal Aunt) also lives in Utah and stated that she visits approximately five (5) times

a year, for a total of one hundred (100) days in the past ten (10) years. (N.T. 9/6/16 at

227, 233-34).

Despite Father's family having more personal contact and observation of the

parties and the minor children, Dr. Pittman dismissed their concerns of Mother because

she felt they were not providing "the full picture". Yet, she found that Mother's family, who

infrequently visited with the family and had minimal involvement with the minor children

on those visits, was providing "the full picture". Further, Dr. Pittman admitted that she

asked Mother to respond to certain allegations that Father or his family reported.

Maternal Grandfather also admitted that he "suggested" to Father that Father needed to earn more money to "improve his lifestyle and also enhance his family's." (N.T. 9/6/16 at 216).

Page 8 of 23 I However, she did ask Father to respond to any of the allegations that Mother or her family

reported, especially the allegations of hoarding and a show-and-tell incident at M.K.'s

school - both of which Dr. Pittman found to be significant in her evaluation of Father.

Accordingly, this Court finds Dr. Pittman's report to be disturbingly subjective. This

Court's observation was ratified by Dr. Narayan's testimony where he challenged the

methodology and conclusions of Dr. Pittman's report.

We also heard testimony from Father's psychiatrist, Dr. Dwayne Narayan. Dr.

Narayan is a general adult psychiatrist who specializes in the treatment of Obsessive-

Compulsive Disorder ("OCD"), anxiety disorders, body image and eating disorders,

depression, and bipolar disorder. He shared the same concerns as this Court with Dr.

Pittman's methodology:

I find Dr. Pittman's report very difficult to follow .... [S]he does do a number of interviews or evaluations of people, and· they are written as if it's just a running commentary . . - she calls someone, they say all this stuff over the phone, she writes it down almost as if they're saying it, doesn't seem to be a question-and-answer like I would hope. And I'm not a forensic psychologist, but I would hope that anyone doing an evaluation would ask a question. Say, I wanted to get this information; what was their response to it? Really outlined in an organized way. Her presentation does not read like that. And then you get these bold-faced additions or comments refuting or adding some comment to a particular person's interview that had nothing to do with that interview. And, again, strictly speaking, you want to put the information that you're getting from the outside - you want to get your data in one section and then do a formulation, do an assessment of that data in another section so it's clear .... Get my data, synthesize it, present a conclusion. I'm not sure what she was doing with these interviews.

(N.T. 9/6/16 at 142-43).

Page 9 of 23 As for his treatment of Father, Dr. Narayan first met him in 2002 and treated him for OCD

and depression until 2003 when Dr. Narayan left that practice. Father began seeing Dr.

Narayan again in 2016 after the allegations were made to DCCYS. Dr. Narayn provided I the following explanation of OCD: .I OCD is a psychiatric illness where one gets repetitive, intrusive thoughts that cause distress, that are not logical thoughts in the strict sense of the word, but they are thoughts that are extremely unlikely to happen. . . . The reaction to those thoughts is one of very, very high levels of anxiety or one trying to convince themselves that they're in their right mind, which is not particularly easy to do when you're in a heightened anxiety state. In order to soothe the anxiety, people go through what we call compulsive behaviors. Compulsive thinking, compulsive checking, compulsive cleaning. Some compulsions designed to reduce the anxiety brought on by these intrusive thoughts. And then what you see after that is a cycle of having more and more obsessive thoughts, thoughts they don't want to have, thoughts that-we call them ego-dystonicity. They're against their character, their beliefs. They do not make sense. They are thoughts that they don't want to have. They're fearful of even having the thoughts. And, again, that generates more of the compulsive behaviors trying to deal with that anxiety. -,

The only benefit of a compulsion is to lower the anxiety so that one can go on with a normal life. Unfortunately for · people that suffer from the illness, they end up experiencing more and more obsessional thoughts each time they do a compulsion. So each time you have a compulsion, it drives the underlying obsession and keeping [sic] going and going.

(N.T. 9/6/16 at 126-27). With respect to Father's specific diagnosis of OCD, Dr. Narayan

testified:

With his children, he would describe ... that they would latch onto him, as all kids do .... [Y]ou're trying to put a kid to bed, and you give them a kiss good time, it's extremely common for kids just to say, well, I'm going to hold on. I don't want to go to sleep. I want to give you a longer kiss. Well, what that does for is that it would trigger the worry of, well, first of all, it doesn't feel right. Every parent wants to put

1. Page 10 of 23 their kid to bed and move on. And that is the reaction we would hope that he would have, the reaction that the rest of us would have. His brain then says, oh, - rather than having that feeling - oh, did I do something inappropriate? Did I feel something inappropriate? What - was I aroused? ... And he will go right to the worst case scenario. Gosh, I had the sensation. I think I was aroused, but I'm not sure. Again, logically he knows he wasn't. He knows he's disgusted by any idea of having any sort of sexually inappropriate contact with a kid. He's very clear about that. But his worry side, it's very consistent with OCD. It's textbook. ·

(N.T. 9/6/16 at 132-33). This explanation tends to confirm Father's testimony regarding

the March 17, 2016 incident:

First of all, there was never more than one kiss. -and I were in the same room from the very beginning .... [E.K.] climbed up on the couch while Q t and I were talking, hopped on my lap, wrapped her arms around my neck, and planted a big kiss on my lips . .. You know, because we all kissed on the lips. We all did. [E.K.] didn't let go, and I started to become a little nervous .... So when [E.K.] climbed on my lap, I had a panic attack that maybe something was happening because maybe it was bad because we weren't allowed to have kids on our laps there. I froze. I looked at my wife, and I said -when [E.K.] wouldn't let go - I said, can you take her? And she glared at me and didn't take her. And I said, honey, can you take her? And she wouldn't take her .... I eventually pulled her arms off from around my neck and I sat her beside me. And I told that I had a fear that maybe I was become aroused. I never said I was, and, quite frankly, I wasn't. I never have ever been aroused by a child ever. But it's the fear of the possibility with OCD.

(N.T. 1/6/17 at 144-45). Dr. Narayan went on to explain that there is a zero likelihood that

an individual diagnosed with OCD would ever act on their fear. (N.T. 9/6/16 at 129).

Specifically, Dr. Narayan testified that he can say with reasonable medical certainty that

Father would not harm his children in any way. (N.T. 9/6/16 at 138).

Page 11 of 23 The primary form of treatment of OCD is cognitive behavioral psychotherapy which

teaches you strategies to eliminate the compulsions, such as desensitization. (&) Dr.

Narayan provided the following example of this type of treatment:

[S]omeone who has a fear of, say, stabbing me. A patient comes to my office. They said, "I just got this thought. It's not that I want to have it, but I worry that I might stab you." What we try to do is desensitize the thought, get them comfortable with the idea that the thought is error .... But what someone with OCD might do is try any way possible to not touch a knife. So we would bring the knives into the therapy, and it is commonplace for us to have people imagine the knives on the table, and ... get used to that. That will cause anxiety for them. If they tolerate that, we'll put knives on the table in real life and get them to sit there and say, well, now, where are your thoughts? You've having to learn to sit with those thoughts now. They will go away over time. They will desensitize. And once that happens, that fear is no longer there.

(N.T. 9/6/16 at 129-30). Although Dr. Narayan testified that Father was taught some of

the techniques for treating OCD, he admitted that Father was not handling his OCD

properly by asking Mother for reassurance for his behaviors. (N.T. 9/6/16 at 134). Each

time that Father asked Mother for reassurance, it made him· 1ess secure the next time a

thought would come up. (N.T. 9/6/16 at 135). Dr. Narayan testified that a spouse can

only put up with so much of that type of coping mechanism before they say it is craziness.

(N.T. 9/6/16 at 134). He stated that Father cannot continue to use reassurance as a way

of dealing with his OCD, and that will be addressed in therapy. (N.T. 9/6/16 at 153). For

Father, Dr. Narayan's treatment goal is for him to be comfortable appropriately kissing his

children as a parent. (N.T. 9/6/16 at 135).

With respect to hoarding, Dr. Narayan testified that hoarding is a medical problem.

(N.T. 9/6/16 at 139). However, it cannot be diagnosed without talking to the patient. (N.T.

Page 12 of 23 9/6/16 at 141 ). He said it would be "difficult to diagnosis just based on a set of pictures

without additional information." (.19..:) Aside from talking to the patient, Dr. Narayan would

also go and view the entire home and see where things are before making a diagnosis of

hoarding. (.19..:)

Since we were unable to complete the testimony on September 6, 2016, a second

(2nd) day of the relocation hearing was scheduled for October 20, 2016. On October 11,

2016, Father filed a Motion for Continuance due to the preliminary hearing on his criminal

being was continued until November. In addition, Father had only had one (1) supervised

visit at that time and had hoped to have a few more visits prior to the next session ofthe

relocation hearing. This Court granted Father's request, and the relocation hearing was

continued until January 6, 2017.6

On November 30, 2016, Father filed a Petition for Special Relief and Request for

Expedited Hearing alleging that Mother had unilaterally cancelled a number of supervised

visits, and requesting an order requiring Mother to cooperate in ensuring the visits occur.

Due to the contentious nature of this action, this Court scheduled an emergency hearing

for December 9, 2016. At that hearing, we learned that Father had a total of three (3)

supervised visits at ABC House - October 1, 14, and 29, 2016 - and all other visits were

cancelled with no make-up days scheduled.7 At the conclusion of the hearing, the Court

ordered supervised visitation to restart and to occur at least once every other week. It

6 Mother filed a Motion for Reconsideration of our order continuing the hearing due to the fact that she

objected to the continuance and did not have an opportunity to respond pursuant to Pennsylvania Rule of Civil Procedure 208.3 and Dauphin County Local Rule 208.3(b). This Court denied Mother's request stating that Pennsylvania Rule of Civil Procedure 208.1 (2)(iii) specifically states that the procedure for motions, contested or uncontested, does not apply to family law actions. 7 See discussions under factor 5 below.

Page 13 of 23 was also ordered that a visit was to occur around the Christmas holiday, and that the

Paternal Grandparents could attend.8

Our next hearing in this saga occurred on January 6, 2017, at which time we heard

testimony from Robin Snyder (supervisor at ABC House), Mother (completion of her

original testimony),••••tr (Father's co-worker and friend), •••• (Father's

co-worker and friend), •••••• (Paternal Aunt), ii1111••••t(Paternal Grandfather), and Father. The final hearing occurred on January 19, 2017 at which time

Father concluded his testimony and Mother was called for rebuttal.

DISCUSSION

Before this Court is Mother's Complaint for Custody and request to relocate the

minor children to Utah, as well as Father's request to relocate the minor children to

Franklin County, Pennsylvania. In addition to reviewing the record, we have heard

· testimony from both parties, and their respective witnesses. We have weighed the

evidence in light of the presumptions concerning primary physical custody and burdens

that apply to each of the parties under the Child Custody Act. 23 Pa.C.S.A. § 5327(a)-

(b).

Pursuant to the current Child Custody Act, before making any custodial award, the

Court must determine "the best interests of the child by considering all relevant factors,

giving weighted consideration to those factors which affect the safety of the child,"

including the sixteen (16) statutorily defined factors, and ten (10) relocation factors. 23

Pa.C.S.A. §§ 5328(a), 5337(g); see J.R.M. v. J.E.A., 33 A.2d 647, 652 (Pa. Super. 2011).

8 Testimony at the hearing revealed that Mother denied Paternal Grandparents supervised visitation at ABC House. (N.T 12/9/16 at 54-55).

Page 14 of 23 Due to Father's pending criminal charges and Mother's expressed intent to relocate to

Utah, this Court has only considered the relocation factors.

RELOCATION FACTORS

(1) The nature, quality, extent of involvement and duration of the children's relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the children's lives.

There is conflicting testimony regarding Father's involvement with the children

during the parties' marriage. Mother testified that she primarily cared for the children, and

Father only cared for the children while she was working. (N.T. 9/6/16 at 247). She further

stated that Father had little interaction with the children as he did not help with meals,

clean, change diapers, etc. because he would be tinkering with stuff in the garage,

sleeping, or on his cell phone. (N.T. 9/6/16 at 249). However, Mother also testified that

she and the children would visit Father at his second (2nd) job every night for dinner so

that Father could tell the children good night. (N.T. 9/6/16 at 248). She testified that

Father was never able to have a "normal" relationship with the children and she always

acted as a go-between. (N.T. 1/6/17 at 74).

According to Father, when M.K. was first born the parties worked opposite shifts,

therefore, both parties cared for M.K. (N.T. 1/6/17 at 138). He further testified that Mother

always asked him to care for the children, and never voiced a concern with his ability to

do so. (N.T. 1/6/17 at 139-41 ). He has attended school events and parent-teacher

meetings for M.K., and he has taken both of the girls to the doctors on several occasions.

(N.T. 1/6/17 at 151, 156-57).

Both parties admit that Paternal Grandparents, as well as Paternal Aunt (Mrs.

u have been a significant factor in the children's lives.

Page 15 of 23 when they lived in Virginia. (N.T. 1/6/17 at 95-96, 112). When they moved to

Pennsylvania, the parties resided on Paternal Grandparents' property. (N .T. 1 /6/17 at

114). During that time, Paternal Grandparents babysat M.K. approximately six (6) times

(6) times a week and helped with babysitting. (N.T. 1/6/17 at 94). When the parties moved

to Halifax, Paternal Grandparents and Ms ..... visited approximately two (2) to three (3)

times a month. (N.T. 1/6/17 at 93, 118) . Ms. llillr testified that11F•it misses M.K. very

much as Mother did not allow them to contact the children.9 (N.T. 1/6/17 at 107).

(2) The age, developmental stage, needs of the children and the likely impact the relocation will have on the children's physical, educational and emotional development, taking into consideration any special needs of the children.

The children are M.K. (age 7), E.K. (age 2 Yz), and AK. (age 7 months). The

parties moved to Pennsylvania when M.K. was approximately two (2) years old, and have

resided in Halifax since 2013. According to Maternal Grandfather's testimony, a

relocation would be positive for the children because they would be removed from what

he deems an unsafe environment (OCD and hoarding) and would live a "normal" life.

(N.T. 9/6/16 at 212). Mother testified that she and the children would have a support

network in Utah as she currently does not have one in Pennsylvania. (N.T. 1/6/17 at 75).

The Court notes that the combined testimony of all the proceedings in this case indicate

that Father's family did provide a support network for Mother in Pennsylvania, however,

she elected to sever that relationship.

9At our last hearing on January 19, 2017, Mother testified that she made efforts to contact Paternal Grandparents and Paternal Aunt after this Court admonished her for cutting off all contact.

Page 16 of 23 There was no testimony provided as to what school district and school M.K.

would be attend if permitted to relocate, and how that school compares to her current

school. Mother did testify that her family would provide free daycare for E.K. and A.K. in

Utah: (N.T. 9/6/16 at 250). .

(3) The feasibility of preserving the relationship between the nonrelocating party and the children through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

Mother testified that she does not believe Father's relationship with the children

would be significantly impaired if she relocated to Utah. Specifically, she stated "[w]hether

the supervision happens here or in Utah, it doesn't really matter. It's just a matter of

location. I mean, he's got supervised visitation." (N.T. 1/6/17 at 72). However, she also

admitted that neither she nor Father have the funds to fly to Utah regularly for the

visitations to occur. (kl) She stated that the Renaissance Child Visitation Center in Salt

Lake City, Utah would provide supervised visits between Father and the children. (N.T.

1/6/17 at 49). The center is located about halfway between Ms. (Paternal

Aunt) home and Maternal Grandparents home - approximately an hour and a half (1 Yz)

drive. (N.T. 1/6/17 at 49-50). She testified that Father visits at least one (1) time a year,

has work connections in Utah, and the Church headquarters is located in Utah. (kl) She

further testified that Father could visit any time in Utah so long as it does not interfere with

M.K.'s school or extra-curricular activities. (N.T. 1/6/17 at 50).

Father is fearful that if Mother is permitted to relocate to Utah, the children will

lose their father. He already has difficulty maintaining consistent supervised visitations in

Pennsylvania, and is concerned about the logistics and feasibility of maintaining contact

with the children if they are in Utah. Further, Mother has contacted the children's medical

Page 17 of 23 providers in Pennsylvania and M.K.'s school to inform them not to release any information

to Father without her consent.

(4) The children's preference, taking into consideration the age and maturity of the children.

By agreement this Court did not interview the children because of their young age.

(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the children and the other party.

There was significant testimony indicating that Mother is attempting to thwart

Father's relationship with the children. Mother first asked Father to relocate as a family

to Utah beginning on or about May 2015. (N.T. 1/6/17 at 51, 142). Father testified that

Mother expressed a strong desire to return to Utah because she wanted Father to make

more money and live in a bigger home. (N.T. 1/6/17 at 142). Father did not want to move

because they had just purchased a home, he was happy with his job, and they had

already moved four (4) times during their marriage. (N.T. 1/6/17 at 142-43). Mother

became upset, and according to Father, the request to move to Utah became a constant

issue between the parties. (N.T. 1/6/17 at 143). Despite Mother's testimony that she had

been afraid of Father for a number of years during their marriage, she admitted that she

never told anyone about her alleged fear until after Father said "no" to moving to Utah

during an argument on or about March 13, 2016. (N.T. 9/6/16 at 54-55). The DCCYS

investigation, which was subsequently unfounded, and the criminal charges were brought

solely based upon Mother's perception of the March 17, 2016 incident (i.e., there were no

disclosures made by a child, there was no physical evidence, and no actual observed

criminal acts).

Further, Mother sent Father the following text message on May 10, 2016:

Page 18 of 23 I know that spending time with our son in the hospital is important to you and having your family there as well. I also know that being apart [sic] of naming him is important to you too. If you want to have these opportunities then I need you to sign the relocation paperwork because that is what is important to me. If you sign it then I won't have a need for either vehicle and you will get to keep them, otherwise I will try and get the truck because it's more reliable. The choice is yours. This is [sic] relocation is the most important thing to me and my ability to move forward. Please make this easy for both of us.

See N.T. 1/6/17 at 65-66; see also Defendant's Exhibit 21. Father did not comply with

Mother's demands and as a result, neither Father nor his family were permitted in the

hospital when A.K. was born, and Father did not have a say in naming their son. (N.T.

1/6/17 at 66-67).

In addition, Father was court-ordered to have supervised visitation with the minor

children on June 13, 2016 at the YWCA.10 Unfortunately, we learned at the pretrial

conference on September 1, 2016, that the YWCA initially agreed to offer supervised

visitations to the family. However, when they learned of the nature of Father's criminal

charges, they declined to offer their services. The parties then tried Catholic Charities,

who again initially agreed to offer their services, but once they learned of the nature of

Father's charges they declined. Therefore, on September 1, 2016, we issued another

Order providing Father with supervised visitations at ABC House in Carlisle." Despite

being permitted to have supervised visitation as early as June 13, 2016, Father did not

have his first supervised visitation until October 1, 2016.

10See Order of June 13, 2016. 11The Court notes that there is no fee for supervised visitation at either the YWCA or Catholic Charities, but there is a fee for ABC House.

Page 19 of 23 Prior to the first visit, Mother emailed ABC House to inform them of certain

behaviors to look for in Father during the supervised visitation sessions. (Notes of

Testimony, Special Relief Hearing, 12/9/16 (hereinafter "N.T. 12/9/16") at 32). According

to Mother, ABC House agreed to intervene and document if and when the enumerated

behaviors occurred. (N.T. 12/9/16 at 33). Following the first visit, Mother exchanged

letters with Kim Sweger, Executive Director of ABC House, regarding her complaints

about ABC House staff and their failure to comply with the rules.12 According to Mother,

ABC House staff repeatedly pressured the girls into visiting with Father after expressing

discomfort in seeing him. (N.T. 12/9/16 at 35). Further, Mother felt that she had observed

some of the enumerated behaviors in Father and was upset that ABC House did riot

document them. (N.T. 12/9/16 at 37-38).

According to Robin Snyder, the supervisor at ABC House, the first three (3) visits

- October 1, 15, and 29 - went well and there was no violations of the visitation center

rules or Mother's list of enumerated behaviors. (N.T. 1/6/17 at 12-13). The next visit was

not until December 16, 2016, after our special relief hearing. Mother cancelled the

November 12, 2016 visit with no reason given. (N.T. 1/6/17 at 16). Father subsequently

learned that Mother cancelled because she did not have gas money. (N .T. 12/9/16 at 21 ).

That visit was rescheduled to November 19, 2016, but was also cancelled by Mother

because A.K. and E.K. were allegedly sick. (N.T. 12/9/16 at 20, N.T. 1/6/17 at 16). Father

subsequently learned that despite the November 19th visit being cancelled, the children

attended church the following day. (N.T. 12/9/16 at 20).

12 See Father's Petition for Special Relief and Expedited Hearing, 11/30/16, Exhibits B, C, and D.

Page 20 of 23 The next visit was scheduled for November 26, 2016. That visit was also cancelled

by Mother because she had a prior commitment with her sister in Virginia.13 (N.T. 12/9/16

at 55; N.T. 1/6/17 at 17). Robin asked Mother if she would make the visit up, and Mother

responded that she was unavailable. (N.T. 1/6/17 at 17). The December 3, 2016 visit

was cancelled because the children were allegedly sick again. (kL} The next visit was

December 16, 2016, but it was cut short due to an accident which caused Mother to arrive

late. (.!Q,,) On December 24, 2016, Paternal Grandparents accompanied Father for a

Christmas visit with the children.14 (N.T. 1/6/17 at 18). At the January 6, 2017 hearing, it

was learned that no further visits were scheduled because Mother wanted to await the

outcome of that hearing. (N.T. 1/6/17 at 20). At the final hearing on January 19, 2017,

we learned that Father had two (2) more visits - January 7 and 17 - which also went well.

Mother also ceased all communication between the children and Father's family

from April 2016 until January 2017 when this Court admonished Mother on the record for

cutting off the children's access to extended family, specifically Father's family.

(6) Whether the relocation will enhance the general quality of life for the partv seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.

Mother testified that the quality of her life would be enhanced if permitted to

relocate to Mendon, Utah. (N.T. 9/6/16 at 249-50). Mother is currently unemployed and

receiving child and spousal support from Father. She stated that it would be financially

burdensome for her to remain in Pennsylvania because if she were to find employment,

13 The November 26 visit was scheduled in October, but Mother did not inform Robin at that time that she had a prior commitment. (N.T. 1/6/17 at 17). 14 Paternal Grandparents were required to apply for supervised visitation and to pay the $65 fee. (N.T.

1/6/17 at 18). They had previously applied for visitation at the end of October, but Mother refused. (N.T. 1/6/17 at 18-19).

Page 21 of 23 at most she would be paid is $14 an hour. (N.T. 9/6/16 at 250-52). When factoring in

childcare costs, her income, and support payments, she would not have enough total

income to cover all of the necessary expenses, such as the mortgage, utilities and

groceries. (N.T. 9/6/16 at 252-53). In addition, she testified that she would not be able

to afford to return to school if she remains in Pennsylvania15, nor would she be able to

afford the childcare costs. (N.T. 9/6/16 at 254).

If permitted to relocate to Utah, Mother would live rent free with Maternal

Grandparents while she finished her nursing degree. (N.T. 9/6/16 at 253). Once she

obtained a nursing degree, then she would be able to work part-time for $33 an hour in

Cash County Utah. (N.T. 9/6/16 at 253). In addition, Mother would have the benefit of

emotional support in Utah as she needs to undergo extensive trauma therapy due to the

nature of the marriage and how things have evolved. (N.T. 9/6/16 at 254). She testified

that she would not be able to find childcare in order to attend the trauma sessions in

Pennsylvania, and even if she did, once the therapy was completed she would return to

her life and not have the benefit of Maternal Grandmother to give her a hug or watch the

children while she meditates. (N.T. 9/6/16 at 254-55).

(7) Whether the relocation will enhance the general quality of life for the children, including, but not limited to, financial or emotional benefit or educational opportunity.

There was little significant testimony on this factor. Mother did not provide any

information on which school district and the specific school M.K. would attend if permitted

to relocate. E.K. and A.K. are not school aged yet. Mother did testify that she would be

15 This Court is at somewhat of a loss as to how Mother would be able to afford school in Utah, but not in Pennsylvania. However, we can surmise that Maternal Grandparents would only pay for Mother to return to school in Utah, but not Pennsylvania.

Page 22 of 23 able to provide for the children better emotionally, physically and spiritually in Utah. (N.T.

1/6/17 at 75-76). Aside from a few vague statements, there was no testimony" or evidence

that would show that a relocation would enhance the general quality of life for the children.

However, relocation would further isolate the children from Father and Father's family.

- (8) The reasons and motivation of each party for seeking or opposing the relocation.

Mother testified that her reasons for moving are to be closer to her family,

financial stability, and an opportunity to gain an education. (N.T. 9/6/16 at 249-51).

However, the testimony revealed that despite the financial ability to do so, Maternal

Grandparents only visited once or twice a year and had minimal involvement with the

children during those visits. (N.T. 1/6/17 at 150). Father's family appears to have

extensive involvement in the upbringing of the children. While it is true that a relocation

to Utah would be closer to Mother's family, it would be a significant distance away from

Father's family in Pennsylvania.

Additionally, Father testified that Mother had always told him she had a better

relationship with her parents when she lived far away from them. (N.T. 1/6/17 at 149-50).

He also disputes the fact that Mother would not be able to obtain a nursing degree if she

remained in Pennsylvania. There are several colleges in the Harrisburg area, as well as

in Franklin County, that offer programs for nursing degrees, such as Penn State University

(Middletown), Messiah College, Harrisburg Area Community College, Drexel University

(Chambersburg), and Wilson College. (N.T. 1/6/17 at 159-60). Father adamantly

opposes Mother's relocation to Utah because he is fearful that she will succeed in

completely cutting him out of the children's lives.

Page 23 of 23 (9) The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the children or an abused party.

Mother alleges that Father was emotional and sexually abusive towards her

throughout the marriage. Father adamantly disputes the allegation and testified that both

he and Mother initiated any intimate contact between them. Mother further alleges that

Father is a risk of harm to the children due to his OCD and her belief that it is related to

Father's sexual attraction to minors. This Court previously addressed this factor.

(10) Any other factor affecting the best interest of the children.

No other significant factors were considered.

CONCLUSION

After consideration of the matter and based upon our review of the statutory

factors, this Court issues the following ORDER:

(This space intentionally left blank.)

Page 24 of 23 Circulated 08/14/2017 05:11 PM

'·~~:epxe.~, iDisttib1UJted 1

. ,. •• ~--.-=.---- - '. ---- . .. - ' IN THE COURT cif:c'JJ!/t4'T'~lf/1.~~ .~ .... Plaintiff/Appellant DAUPHIN COUNTY, PENNSYLVANIA

v. NO. 477 MDA 2017 ,.;._·

~9, .,, \

TRIAL COURT NO. 2016 CV 346§-,CU',;~j Defendant/Appellee )-/

l;::·, .-;;) / , . \;J.-P· \ ..

OPINION [Pursuant to Pa.R.A.P. 1925(a)] ';t\ r l-'" %; •• ;~~'_, / _r.5'· Presently before this Court is the appeal of

or "Mother") from this Court's Memorandum Opinion and Order of February 15, 2017, ·r ••- (hereinafter "Appellant" -

denying Mother's relocation and entering an interim order for custody pending the

resolution of , . . ~: ' .:: ' ~ ' .. hereinafter "Father" or "Appellee") criminal charges.

This Court believes that our Memorandum Opinion of February 15, 2017, as well

as the transcripts and evidence of record, thoroughly explain the reasons for our decision.

However, this Court will address some of the issues raised byj Appellant in her Statement

of Errors Complained of on Appeal.

Appellant filed a notice of appeal on March 17, 2017 - the last possible day in

· which the notice could be filed and considered timely. Simultaneously, Appellant filed a

Statement of Errors Complained of on Appeal (hereinafter "Statement") pursuant to

Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). However, this Court will not

classify the Statement as being "concise" as required by the rules as it consists of eleven

(11) main issues, ten (10) sub-issues, and spans a total of twelve (12) pages. In addition

to the overwhelming length, the Statement is riddled with opinions and characterizations

by counsel that are inappropriate, irrelevant, and some completely inaccurate. As much

as this Court would like to find that Appellant has waived her issues for her failure to

comply with the "concise" requirement, it cannot in good conscious do so because once

Page 1 of 14 stripped of extraneous comments, opinions and extra verbiage, the issues are mostly

djscernable.1

After removing counsel's extraneous comments, opinions, and extra verbiage, this

Court has discerned the following issues that we will address:

1. The Court erred by failing to address the custody factors enumerated at 23 Pa.C.S.A. § 5328(a).

2. The Court erred in disregarding the testimony of the agreed-upon expert, Dr. Laurie Pittman.

3. The Court erred by granting Father's request for relocation without considering any of the relocation factors enumerated at 23 Pa.C.S.A. § 5337.

4. The Court erred in awarding Paternal Grandparents visitation rights.

5. The Court erred by depriving Mother of her constitutional right to travel.

See Appellant's Statement of Errors Complained of on Appeal, March 17, 2016, para. 1, 3, 4, 10, and 11.

Appellant's remaining issues are mere dissatisfaction with this Court's decision,

and the Court's use of discretion in determining the credibility of witnesses and weight to

be afforded to each piece of evidence. Specifically, in Paragraph 8 of her Statement,

Appellant complains about ten (10) sentences from the discussion section of our

Memorandum Opinion. Appellant fails to set forth how the statements in Paragraph 2, as

well as Paragraphs 5-9 constitute an abuse of discretion. It is obvious Appellant is

dissatisfied with this Court's conclusions, however, that is not a proper basis for appeal.

I

I 1 See Donaugh v. Lincole Elec. Co , 936 A.2d 52 (Pa. Super. 2007).

Page 2 of 14 DISCUSSION

In reviewing a custody order, the Superior Court's scope is of the broadest type

and the standard of review is abuse of discretion.

We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court's deductions or inferences from its factual findings. Ultimately, the test is whether the trial court's conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

J.R.M. v. J.E.A., 33 A.3d 647, 660 (Pa. Super. 2011).

The Court notes that Appellant is correct in that we did not include a discussion of

the custody factors at 23 Pa.C.S.A. § 5328(a) in our Memorandum Opinion. However,

the reason behind the decision is one of common sense - the Court did not change

custody, and the order is intended to be an interim order until Father's criminal charges

are resolved.

The circumstances of this case are peculiar, and leave a number of unanswered

questions pertinent to a final custody decision. Father currently has criminal charges

pending from an incident that occurred on or about March 17, 2016. However, Dauphin

County Children and Youth Services ("DCCYS") did not get involved regarding the

incident until on or about April 14, 2016. As explained in greater detail in our

Memorandum Opinion, the charges are based solely upon Mother's statements to

Pennsylvania State Police Trooper Raschard Buie as to her perception and belief as what

did or did not occur. The DCCYS investigation was determined unfounded on June 13,

Page 3 of 14 2016. The criminal charges were not brought until about August 4, 2016 based upon the

same allegations that were investigated and deemed unfounded by DCCYS.

Due to the DCCYS investigation, a sixty (60) day safety plan was entered providing

Father no contact with the minor children. Upon expiration of the safety plan, this Court

entered an Order, following a pretrial cOnference wlth counsel, which provided Mother

with primary custody, and Father with supervised visitation at the YWCA.2 This Order

was entered to protect the children from any possible abuse, ensure the safety of the

children, and protect Father from any further allegations pending resolution of the criminal

charges. The February 15, 2017 Order did not alter the cus ody that had been previously

entered aside from the location of the supervised visitation - Mother was provided primary

custody, and Father supervised visitation at ABC House at least once per week- pending

resolution of the criminal charges. Therefore, as there was no change of custody, and it

is an interim order, it is not necessary for this Court to address the custody factors at 23

Pa.C.S.A. § 5328(a)(1 ), and there is no error.3

Appellant also alleges that this Court erred in failing to accept as true the opinion

of an expert merely because the parties agreed to utilize her services. Apparently

Appellant forgets that as the trier of fact, this Court is tasked with determining the

credibility of witnesses, even expert witnesses. Just because two parties agree to utilize

an expert, does not mean that the court must accept that opinion as true - it is within the

2 See Order of June 13, 2016. The Court notes, however, that supervised visitation did not begin until October 1, 2016. This is more fully discussed in our Memorandum Opinion beginning on page 19 of 23. 3 This Court notes that Mother was only provided sole legal custody on a temporary basis through the safety plan. Mother's sole legal custody ended upon expiration of the safety plan. At the conclusion of the September 6, 2016 hearing, Mother was granted sole legal and primary physical custody. However, that was not memorialized into a written order.

Page 4 of 14 court's discretion to determine the credibility of that witness. Appellant fails to cite any

case law to the contrary.

Although this issue was addressed in our Memorandum Opinion on pages six (6)

to nine (9), we will provide additional explanation for our decision. After listening to the

testimony and reviewing the evidence presented, this Court found the testimony of Dr.

Pittman to be subjectively biased toward Mother. As previously explained, this Court

found Dr. Pittman's testimony to be subjective for a number of reasons, such as the fact

that she asked Mother to respond to certain allegations that Father or his family reported,.

and failed to ask Father to respond to any of the allegations Mother or her family reported.

Particularly disturbing to this Court is the significance that Dr. Pittman placed on the

allegations of hoarding and a show-and-tell incident at M.K.'s school - both of which were

reported by Mother- without even bothering to ask Father to respond to those allegations.

Further, this Court's observations of Dr. Pittman's testimony were ratified by Dr.

Narayan's testimony. In addition to the portion of Dr. Narayan's testimony cited wherein

he challenged the methodology and conclusions of Dr. Pittman's report, he further

testified as follows:

Q: Now, did you agree with her other diagnoses of Richard that she outlined in her report?

A: I did not. She is done [sic] testing and came up with - on the last page of her report, page 48, obsessive compulsive disorder, yes, I agree with that. Hoarding disorder, not yet coded .... I don't agree that he has a hoarding disorder based on all the information I have seen. That doesn't mean it's not possible. It just means ... it hasn't been something that been put on the table for me to identify at this point. However, social phobia I disagree with. I have seen zero evidence of social phobia. Yes, he was bullied as a kid. Yes, he was anxious as a kid, perhaps based on what people called him. I have not seen any evidence of social phobia.

Page 5 of 14 I I I He has friends that he has good connections with that are in the report. So even if I knew no knowledge of that, he described that. But when he comes to see me, he is very personable with my office staff. When I'm in the background or not there, he doesn't need me to be there. He approaches them very well .... The diagnosis of fetishism, exhibitionism, frotteurism seemed to come directly out of the possibility in one of the reports that he has an interest in those things. You can't use that to make a diagnosis. I don't see where that's coming from. And the other thing I would say is that he does have a diagnosis of major depression. He was suicidal when I saw him - admitted him to the hospital in 2002, and that diagnosis is omitted from her description.

(Notes of Testimony, Custody Hearing 9/6/16 (hereinafter "N.T. 9/6/16") at 144-45).

Additionally, Dr. Narayan testified at length regarding his concern that Dr. Pittman

did not have a full understanding of OCD, its symptoms and treatment. As a psychiatrist

who specializes in OCD, this Court found his testimony to be compelling:

Q: On page 46, where she talks about her opinions on OCD-

A: Yes. My concern is that ... Dr. Pittman really . doesn't understand all of the symptoms of OCD or understand them significantly as they relate to? \. The particular sentence she writes is the disconnect between•••• report of dreaded fear as well a,• I L continuation of the practice - kissing is what the reference is here - makes no sense as--reports he would never do anything that would harm any kids. That's a cornerstone of OCD treatment. You are going to have that "what if?" What if I_ could do something to hurt my kids? That's part of the diagnosis. And so, again, he's going to probably imagine me telling him, no, you need to go ahead and do this. His wife insisting that he doesn't do it is only going to serve to - like, the person with the knives and the table. Put your hands up and not touch the knives. It's going to cause him to stay [a]way from the kids longer, and he'll be separated in terms of interacting with his kids .... Of course, he's not going to do anything. to hurt his kids, but he has that worry, that illogical worry that comes up.

Page 6 of 14 I i I' I I

The review goes on to state that insists his estranged wife affirm and validate he did nothing wrong when he continued repeated kissing of his children also poses a problem for this evaluator. Not quite sure what is being referenced there in terms of OCD thinking, but my sense is that_.was probably getting blamed for going through with the kissing even though he was having this worry, which is precisely what the treatment is designed to do: You must continue to go about normal parenting behavior which includes kissing despite the anxiety being there.

Furthermore ... the evaluator says, quote, "she has yet to learn of all the ways OCD could manifest and why, in particular, b I OCD centered on possible sexual impropriety." Well, that's basic. That's Psych 101. It's sexual. It's violence. It's religious. It's scrupulosity. Those are some of the basic ways the disorder presents.

Dr. Pittman makes reference to hoarding as an issue that often results from early childhood trauma. I'm not aware of any childhood trauma. It's never been described by I'm not sure where that's coming from, but it suggests, again, she's searching for an underlying cause for the OCD.

OCD is one of the most genetic psychiatric illnesses there is. There's very good data showing that parts of the brain that control OCD or repetitive thinking change in response to psychotherapy and in response to medication. It actually doesn't matter which one you choose. You can do just therapy; you can do just medication. Either one is fine. That changes the brain. That part of the brain becomes smaller, less overactive, more normal, if you will. And a lot of times there isn't an underlying problem in terms of events that happened. There can be, but it doesn't necessarily mean that's the case. So those are my concerns ... about her ability to, kind of, know this illness.

There's another piece on page 47. I'm guessing it's the second paragraph based on the lack of indentation. "Yet ._. had never had to reconcile why he fears contamination, whether of lead or semen, with the disconnect of, at times, unsanitary result of hoarding." Mouse droppings, black mold is what is goes on to say. This is not a logical process. You can be deathly fearful of one thing and not

Page 7 of 14 be fearful of another. The person who's afraid of knives in my office may have no problem, you know, with some other type of obsessional though that the next person might worry about. So the fact that one has a worry in one area and a complete lack of worry in another area wouldn't surprise me at all.

(N.T. 9/6/16 at 145-48) (emphasis added).

It was obvious on cross-examination of Dr. Narayan that counsel for Appellant did

not comprehend Dr. Narayan's testimony and explanation of OCD. When asked specific

questions regarding Father's illness and the allegations made by Mother, Dr. Narayan

was adamant that Mother's fear of Father harming the children is misplaced:

Q: And you have testified, you said, of course, he's not going to do something to hurt his kids; correct?

A: That's correct.

Q: But you're not 100 percent certain of that, are you?

A: Again, if I can clarify. No one can be 100 percent certain of anything, but with reasonable medical certainty, like I said earlier, I don't think he's going to do it.

Q: But earlier in your testimony regarding OCD, you testified that there was a zero percent chance of •••• turning that thought into an action; correct?

A: Correct.

Q: Okay. But now you're saying there's not a zero percent chance, that there is a possibility that W could turn that thought into action; correct? I A: Not an OCD thought, no.

Q: So your testimony is still there's a zero percent chance of-acting out these thoughts; correct?

(N.T. 9/6/16 at 164-65)

Page 8 of 14 Q: Okay. And is it fair to say that you had testified that you would agree that after repeated times of• I L coming to f .. I I : and asking her if it was okay, that he fears or gets aroused when he lip kisses his daughter, that you would agree tha~ would bellill&to have concerns about leaving her daughters with~unsupervised?

**** A: Yes, she should get concerned, but concerned about where their relationship is going. Am I just rescuing you from your own thoughts? That's where my concern would be. It would not be regarding any danqer.for the child.

Q: So when you testified that you agreed that••• would have this thought and the thought was - you described it as this craziness when her husband is engaging in these lingering lip kisses with the daughter and then asking her it was okay, you now think that she's concerned for the safety of her marriage as opposed to the safety of her daughters?

A: I think what you're describing is lingering kissing as if that's something he's doing. It takes two people to kiss. My impression of the lingering kissing,· based on his description to me, is that the child is hanging on and kissing longer-way longer than he feels comfortable. So I'm not sure your question is something that I can answer directly.

(N.T. 9/6/16 at 168-69) (emphasis added). Much to Mother's chagrin, this Court made a

credibility determination that Dr. Pittman was subjectively biased towards Mother, and

therefore, little weight was afforded to her testimony. On the contrary, Dr. Narayan

presented objectively, and he succinctly provided a detailed explanation of the OCD

illness and how it relates to Father and the allegations made against him. Since credibility

determinations are within the discretion of the fact-finder, i.e. this Court, there is no error.

Next, Appellant alleges that this Court erred by granting Father's relocation request

without addressing the enumerated factors. This Court did not address the relocation

factors as it relates to Father because the order entered is intended to be an interim order.

On or about April 14, 2016, Father was given the choice of moving out of the marital home

Page 9 of 14 or having the children placed into foster care due to Mother's allegations. Father chose

to voluntarily move out of the marital residence to avoid putting the children through any

more trauma. Further, due to the allegations by Mother and the resulting criminal

charges, Father has been suspended from his position with the Pennsylvania Department

of Environmental Protection ("DEP"). On top of losing his full-time position, Mother has

also filed for child and spousal support, which Father has been paying. Due to Mother's

actions, Father had no choice but to move in with paternal grandparents in Franklin

County, Pennsylvania.

At this point, this Court does not know what the outcome of Father's criminal

charges will be. Without the answer to that question, this Court is left with numerous

variables on what could happen in the future - will Father remain in Chambersburg? Will

he return to Halifax? Will he move somewhere in-between? Will he keep his position

with the DEP? Will Mother find a job in Pennsylvania? Will Mother return to schoof in

Pennsylvania? These are all questions that are left up in the air until the criminal charges

against Father are resolved.4 Accordingly, this Court granted Father's relocation out of

necessity - he is suspended from his job, therefore is not getting paid, and had no other

practical option other than to move in with his parents. Therefore, this Court did not err

in granting Father's de facto relocation as he had nowhere else to go as a result of the

allegations.

Appellant next alleges that this Court erred in granting Paternal Grandparents

visitation rights. That is just incorrect. Our Order states "Paternal Grandparents are

permitted to have reasonable unsupervised visitation with the minor children provided that

4The April 5, 2017 plea court was continued and reschedule until May 17, 2017. There is no indication on the docket at whose request the continuation was granted, or if there was even a request.

Page10of14 it occur in a public location."5 Despite Appellant's characterization to the contrary, that

provision does not afford Paternal Grandparents visitations rights. Rather, during the

course of the proceedings, the Court made the observation that Mother isolated herself

and the children from Father's family on or about April 14, 2016, and at the conclusion of

the January 7, 2016 hearing, admonished Mother for cutting off communication with

Father's family:

The concern the Court has is the fact that although I can understand Mom's concern for what her husband with his psychological issues are and what she believes has occurred in the past, I don't understand how that translates into why grandparents, aunts, uncles, cousins, long-term friends have all been cut off. These are children that are in a terribly stressed situation .... I thought it was articulated by this Court that we would try to maintain as much normality for the benefit of these children as possible so they're not permanently scarred. Children can be resilient, even if something happened in the past, if you proceed with caution going forward. But isolation is where this Court has a concern. But for that emergency action and that emergency hearing and this order-an order from this Court directing that the grandparents see the children for Christmas, I am confident that would not have happened, and that would have been grossly unfair not only for the grandparents; it would have been unforgivabl e for the children. That's where the concern is.

(Notes of Testimony, Custody Hearing 1/6/17 (hereinafter "N.T. 1/6/17") at 176)

(emphasis added).

Paternal Grandparents were intimately involved in raising M.K., as well as E.K.,

seeing the family at least twice a month until April 2016. After that date, Mothercut off all

contact with Father's family, including Paternal Grandparents. When the supervised

visitation began at ABC House, Paternal Grandparents expressed an interest in seeing

5 See Order of February 15, 2017 at para. 8.

Page 11 of 14 the children, and were willing to pay the fee to do so because it had been so long.

Unfortunately, Mother did not agree, and admitted that she refused to allow Paternal

Grandparents to have visitation. (Notes of Testimony, Emergency Hearing 12/9/16

(hereinafter "N.T. 12/9/16") at 54-55, N.T. 1/6/17 at 47). Mother states that she refused

because there was no court order in place allowing them to have visitation. (N.T. 12/9/16

at 54). Further, since Father resides with Paternal Grandparents, her concern is that

there is no guarantee Father will not be involved with the visit. (N.T. 1/6/17 at 47-48).

Mother testified that she does not want Paternal Grandparents to have unsupervised

visitation in order to ensure Father complies with his supervised visitation. (lg_,_)

After hearing the testimony and reviewing the evidence, this Court found no

rational explanation for why Paternal Grandparents should not have unsupervised

contact, and should be required to pay a fee in order to see the children at ABC House.

Recognizing Mother's concern that Father could potentially have unsupervised contact

with the children during Paternal Grandparent's visitation, this Court entered the provision

above, permitting Paternal Grandparents to have visitation in a publicplace. We did not

order Paternal Grandparents to have visitation on any particular day, or for any particular

period of time. We merely made it known that Mother should afford Paternal

Grandparents unsupervised contact of the children in a public place in lieu of supervised

visitation at ABC House. After Father's criminal charges are resolved, this Court

anticipates that there will be another hearing in this matter wherein we will have to

determine a final custody order.

Lastly, Appellant alleges that this Court erred in requiring Mother to obtain the

explicit consent of both parties before removing the children from Pennsylvania. She

Page12of14 alleges that this provision is an unconstitutional restriction on her right to travel. We

disagree.

Throughout the course of the proceedings, it became obvious that Mother is

anxious to move with the children to Utah. This Court believes Father's fear of being cut

off from his children if Mother is permitted to relocate is a very real fear. As such, we

included the provision in our Order so that Mother does not abscond with the children

while Father's criminal charges, as well as this appeal, are pending. The provision does

not restrict Mother's right to travel. It merely makes Mother go through the proper

channels in order to do so with the children. If Mother wants to travel with the children,

she must seek Father's express permission to do so. If Father refuses and Mother feels

he did so in bad faith, she can petition the Court and request permission to travel and the

Court would be favorably inclined to do so. Further, Mother is free to travel anywhere in

the world without Father's permission as long as the children remain in Pennsylvania.

Therefore, this Court did not err or abuse its discretion when requiring Mother to obtain

the explicit consent of Father before removing the children from Pennsylvania.

As previously stated, Appellant's remaining allegations in her twelve (12) page

Statement are merely complaints of dissatisfaction with this Court's ruling. In addition to

counsel's characterization and opinion of the evidence, Appellant fails to cite to the

specific testimony and/or evidence that would support her allegations. In fact, after

. reading the Statement, this Court is unsure whether Appellant was in the same courtroom

that we were as the Statement includes a number of completely inaccurate statements of

fact. It appears Appellant is using the "throw everything at the wall and see what sticks"

method with this appeal. In custody proceedings, the trier of fact has the absolute

Page 13 of 14 discretion to determine witness credibility and the weight to be afforded to the evidence.

This Court did so, explained the reasons for doing so, and cited in the transcript where

those reasons can be found - yet Appellant is still unhappy. However, Appellant's

unhappiness does not mean this Court abused its discretion.

Accordingly, we ask the Superior Court to affirm our Memorandum Opinion and

Order of February 15, 2017, and dismiss the appeal in this matter.

Respectfully submitted:

William T. Tully, J. .'>4

DISTRIBUTION: Robert M. Sakovich, Esquire, 2000 Linglestown Road, Suite 106, Harrisburg, PA 17110 Margaret M. Simok, Esquire, 3304 Market Street, Camp Hill, PA 17011 Court Administration FILE

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