M.M. v. K.M.

• Court: Superior Court of Pennsylvania
• Decided: September 16, 2014
• Docket: 442 WDA 2014
• Status: Unpublished

Opinion

J-S42044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.M., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

K.M.,

Appellant No. 442 WDA 2014

Appeal from the Order entered February 14, 2014, in the Court of Common Pleas of Armstrong County, Civil Division, at No(s): 2012-0483-Civil

BEFORE: PANELLA, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2014

K.M. (“Mother”) appeals from the Order entered on February 14, 2014,

awarding shared legal custody of L.M. (“Child”), a male born in May of 2005

to Mother and M.M. (“Father”), and awarding primary physical custody to

Father and partial physical custody to Mother, in accordance with a schedule.

We affirm.

The parties were formerly married, separated in 2009, and divorced in J-S42044-14

2011.1 Pursuant to a consent custody Order entered on October 25, 2012,

the parties shared legal custody of Child. Mother had primary physical

custody, and Father had partial physical custody, in accordance with a

schedule.

On May 29, 2013, Father filed a Petition to modify the custody Order.

On January 24, 2014, the trial court held a custody trial. At trial, Father

testified on his own behalf, and presented the testimony of his current wife,

B.M. (“Stepmother”), as well as that of his mother, M.J.M. (“Paternal

Grandmother”). Mother testified on her own behalf, and presented the

testimony of her mother, J.A.P. (“Maternal Grandmother”). Child was

interviewed in chambers. The trial court also admitted the expert report of

the court-appointed psychologist, Donna J. Zaffy, Ph.D. (“Dr. Zaffy”),

regarding her psychological evaluations of Child, Mother, Father, Stepmother

and Maternal Grandparents.

On February 14, 2014, the trial court entered its custody Order,

awarding shared legal custody of Child to Mother and Father, awarding

primary physical custody to Father, and awarding partial physical custody to

1 Following the dissolution of the parties’ marriage, Mother began dating B.S., and in 2011, B.S. moved in with Mother and Child. See Trial Court Opinion, 2/14/14, at 10. B.S.’s children also resided with them fifty percent of the time. Id. at 11. In 2012, Mother and B.S. had a son, B. (“Half- Brother”). Id. The trial court determined that this living arrangement was “toxic and unsafe,” as B.S. abuses alcohol and has violent anger outbursts. See Trial Court Opinion, 3/25/14, at 2. The trial court noted that B.S. tried to attack Child twice in Mother’s presence. See Trial Court Opinion, 2/14/14, at 7. In 2013, Mother, Child and Half-Brother moved into Maternal Grandparents’ home. See id. -2 - J-S42044-14

Mother, in accordance with a schedule. See Trial Court Order, 2/14/14, at

1-2. This Order changed primary physical custody of Child from Mother to

Father. On that same date, the trial court entered an Opinion setting forth

the factual and procedural history of the case, as well as the court’s bases

for its custody Order. See Trial Court Opinion, 2/14/14, at 1-25.

Mother timely filed a Notice of Appeal, along with a Concise Statement

of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and

(b).

On appeal, Mother raises the following issues for our review:

I. Whether the trial court abused its discretion and committed an error of law in giving controlling weight to [Child’s] stated preference to reside with Father[?]

II. Whether the trial court abused its discretion and committed an error of law in failing to give adequate consideration to [Dr. Zaffy’s] comprehensive, expert report and recommendations[?]

III. Whether the trial court abused its discretion and committed an error of law by failing to consider the full impack [sic] of awarding primary custody of [C]hild to Father[,] when[,] by so doing[, C]hild will be relocated away from [M]other [and Half- B]rother[,] with whom he has a strong bond, the history of Father’s anger [and] alcohol issues, and Father’s desire to retaliate against Mother for the years when she had primary custody of [C]hild[?]

Mother’s Brief at 8 (capitalization omitted).

In custody modification cases, our scope and standard of review are 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

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

Additionally, 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) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

In any custody case decided under the Child Custody Act (“Act”),2 the

paramount concern is the best interests of the child. See 23 Pa.C.S.A.

§§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial

court may modify a custody order if it serves the “best interests of the

child.” See 23 Pa.C.S.A. § 5338. Section 5328(a) sets forth the following

2 See 23 Pa.C.S.A. §§ 5321-5340. Because the trial in this matter was held in January of 2014, the Act applies to this case. See C.R.F., 45 A.3d at 445 (holding that, if the custody evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply). -4 - J-S42044-14

list of sixteen factors that the trial court must consider when making a “best

interests of the child” analysis:

§ 5328. Factors to consider when awarding custody

(a) Factors.—In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(3) The parental duties performed by each party on behalf of the child.

(4) The need for stability and continuity in the child’s education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.

(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.

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(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

(15) The mental and physical condition of a party or member of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328.3 Moreover, section 5323(d) mandates that, when the

trial court awards custody, it “shall delineate the reasons for its decision on

the record in open court or in a written opinion or order.” Id. at § 5323(d).

In her first issue, Mother argues that the trial court erred in giving

controlling weight to Child’s stated preference to reside with Father.

Mother’s Brief at 15. Mother contends that, although a child’s wishes are

important, they are not controlling in custody matters. Id. Mother asserts

that a child’s preference must be based upon reasons that comport with his

3 Effective January 1, 2014, the Act was amended to include an additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child abuse and involvement with child protective services). -6 - J-S42044-14

best interests, and that where the child is very young or can give no

adequate reason for his preference, the trial court is to accord little weight to

the child’s preference. Id. at 15. Mother contends that Child is young

(eight years of age), and that he did not articulate emphatic reasons for his

preference. Id. at 15, 17. Thus, Mother urges, the trial court abused its

discretion by relying on Child’s stated preference. Id. at 18.

The preference of a child, although not controlling, is a factor to be carefully considered, as long as it is based on good reasons. The child’s maturity and intelligence must be considered, and the weight to be given the child’s preference can best be determined by the judge before whom the child appears.

Swope v. Swope, 689 A.2d 264, 266 (Pa. Super. 1997) (citations omitted).

Here, the trial court identified and discussed each of the sixteen

section 5328(a) factors in its Opinion. See Trial Court Opinion, 2/14/14, at

19-23. Additionally, the trial court carefully considered Child’s preference to

live with Father, and found it to be based on good reasons. See id. at 23-

25. Specifically, the trial court determined that, based on Child’s prior “toxic

and unsafe” living situation with Mother and B.S., Child feared that Mother

could place him in a bad situation if she moved him from Maternal

Grandparents’ home. See id. at 24. Further, the trial court found that Child

preferred to live with Father so that he could spend more time with Father,

and so that Stepmother could help him with his homework. See id. at 20-

21. The trial court specifically found that Mother’s testimony that she did

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not know that Child was afraid of B.S. until after they moved from the home

they shared with him, lacked credibility. See id. at 24 n.1.

We defer to the determinations of the trial court as to the credibility

and weight it gave to the testimony of Child and Mother. See C.R.F., 45

A.3d at 443. The trial court’s determinations regarding the weight to accord

Child’s preference do not involve an error of law, and are not unreasonable

in light of the sustainable findings of the trial court as to the credibility of

Child and Mother. Id. Thus, we find no abuse of the trial court’s discretion

in its affording Child’s stated preference weighted consideration as a section

5328(a) factor, as Child’s preference was based on good reasons. See

Swope, 689 A.2d at 266.

In her second issue, Mother argues that the trial court “chose to

disregard the comprehensive, well-reasoned and uncontroverted opinion and

recommendation of the [trial c]ourt’s own expert[, Dr. Zaffy,] and awarded

primary custody of [Child] to Father.” Mother’s Brief at 20. Mother points

out Dr. Zaffy’s recommendation that Mother retain primary physical custody

of Child during the school year, but that Father be awarded an additional

custodial weekend per month during the school year. Id. Mother claims

that the trial court failed to give adequate consideration to Dr. Zaffy’s report,

and discounted her uncontradicted evaluation. Id.

[W]hen expert evaluation is uncontradicted or unqualified, a child custody court abuses its fact[-]finding discretion if it totally discounts expert evaluation. To say that a court cannot discount uncontradicted evidence, however, is merely to

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rephrase the requirement that a child custody court’s conclusion have competent evidence to support it. So long as the trial court’s conclusions are founded in the record, the lower court [is] not obligated to accept the conclusions of the experts. It is not this Court’s function to determine whether the trial court reached the “right” decision; rather, we must consider whether, “based on the evidence presented, given due deference to the trial court’s weight and credibility determinations,” the trial court erred or abused its discretion in awarding custody to the prevailing party.

King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (citations omitted).

The trial court explained its reasons for not following Dr. Zaffy’s

recommendation that Mother should have primary physical custody as

In recommending that the status quo be maintained, Dr. Zaffy placed great emphasis on Child’s close bond with Maternal Grandparents and their availability to care for Child. Dr. Zaffy ignored Mother’s stated intention to move from Maternal Grandparents’ home in the foreseeable future. She also did not factor in the substantial anxiety that Child feels about moving elsewhere with Mother.

Trial Court Opinion, 2/14/14, at 25 n.2.

Here, the trial court adequately explained its reasoning, and its

conclusions are supported by the record. See id. Thus, the trial court’s

decision to rely on the evidence presented at the custody trial, instead of on

the recommendation of the court-appointed custody evaluator, was not an

abuse of discretion. See King, 889 A.2d at 632.

In her third issue, Mother argues that the trial court erred by failing to

fully consider the potential impact of awarding primary custody to Father,

given that Mother has been Child’s primary custodian since the parties’

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separation. Mother’s Brief at 24. Mother relies on the primary caretaker

doctrine in support of her argument that the trial court should have

maintained primary physical custody with her. Id. at 25. Mother asserts

that she has provided Child with a stable and consistent environment, and

notes the positive role that Maternal Grandparents have played in Child’s life

as his caretakers. Id. at 26. Mother contends that awarding primary

physical custody to Father will result in a change in Child’s school, and

subject Child to haphazard childcare arrangements. Id.

The considerations embraced by the primary caretaker doctrine have

been woven into the section 5328(a) factors, such that they have become

part of the trial court’s mandatory inquiry. See M.J.M. v. M.L.G., 63 A.3d

331, 339 (Pa. Super. 2013). Furthermore, the considerations that the

primary caretaker doctrine sought to address are included implicitly in the

section 5328(a) factors. See id. (citing 23 Pa.C.S.A. §§ 5328(a)(3)

(requiring consideration of “[t]he parental duties performed by each party on

behalf of the child.”); (a)(4) (requiring consideration of “[t]he need for

stability and continuity in the child’s education, family life and community

life.”)). Thus, to the extent that the primary caretaker doctrine required

positive emphasis on the primary caretaker’s status, it is no longer viable.

See M.J.M., 63 A.3d at 339 (stating that “[w]e simply cannot graft the

judicially-created primary caretaker doctrine on to the inquiry that the

Legislature has established ….”).

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Here, the trial court addressed the section 5328(a) factors in its

Opinion, including factors (a)(3) and (a)(4), before finding that it was in

Child’s best interests to award primary physical custody to Father. See Trial

Court Opinion, 1/14/14, at 19-20. We discern no abuse of discretion by the

trial court, and affirm on this basis as to this issue. See id.

Mother also contends that, absent compelling reasons to the contrary,

siblings should be raised together in one household. Mother’s Brief at 27.

Mother asserts that Child and Half-Brother are very closely bonded, and that

Child misses Half-Brother when they are with their respective fathers. Id. at

28. Mother argues that there are no compelling reasons to separate Child

and Half-Brother, and that the trial court erred by failing to keep Child and

Half-Brother together. Id.

When considering sibling relationships in making a custody

determination,

the policy in Pennsylvania is to permit siblings to be raised together, whenever possible (the doctrine of “family unity” or “whole family doctrine”). Absent compelling reasons to separate siblings, they should be reared in the same household to permit the continuity and stability necessary for a young child’s development. This policy does not distinguish between half- siblings and siblings who share both biological parents. However, this Court has made clear that the policy against separation of siblings is only one factor—and not a controlling factor—in the ultimate custody decision. In the majority of cases in which this doctrine has been invoked, the children have been reared together prior to separation or divorce of the parents. In cases where the siblings have not been reared in the same household, the force of the doctrine is less compelling.

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Johns v. Cioci, 865 A.2d 931, 942-43 (Pa. Super. 2004) (some internal

citations and quotation marks omitted); see also Nomland v. Nomland,

813 A.2d 850, 855-56 (Pa. Super. 2002) (explaining that the general

preference to have siblings raised together must yield to the paramount

principle that the best interests of the child is the determining factor in a

custody case).

Here, the trial court determined that Child’s concerns about his

stability if he were to remain in Mother’s primary physical custody

outweighed the concern of separating him from Half-Brother. See Trial

Court Opinion, 2/14/14, at 23-25. The trial court found Child’s stability

concerns if he remains in Mother’s primary physical custody were compelling

reasons for him to live primarily with Father.4 See Trial Court Opinion,

3/25/14, at 7. We discern no abuse of the trial court’s discretion in

separating the half-siblings.

Lastly, we address Mother’s contention that the trial court failed to

consider Father’s character, conduct, and motivation in seeking modification

of custody. Mother’s Brief at 30. In particular, Mother cites to 23 Pa.C.S.A.

§ 5329(a),5 arguing that the trial court failed to consider Father’s three

4 The trial court noted that Child and Half-Brother would be together every other week in the summer. See Trial Court Opinion, 3/25/14, at 7. 5 Section 5329(a) applies to custody actions and requires the trial court to consider whether any party has been convicted of certain alcohol and drug- related offenses. Section 5329(c) requires the judge to perform an initial evaluation to determine whether the party who committed an offense under -12 - J-S42044-14

convictions for driving under the influence of alcohol, his conviction for

possession of marijuana, his continued consumption of alcohol, and his

anger management issues. Mother’s Brief at 30. Mother contends that the

trial court erred by dismissing Father’s prior issues with drugs and alcohol

without conducting a thorough and in-depth investigation to ensure that

awarding primary custody to Father is in Child’s best interest. Id. at 31.

Mother also claims that the trial court failed to fully consider Father’s

motivation in bringing the present action in view of his testimony that he

wished to retaliate against Mother for not being lenient with him when she

had custody of Child. Id.

Here, the trial court considered Father’s prior alcohol and drug issues,

and noted that Father’s most recent substance abuse conviction was

approximately fifteen years prior to the trial. See Trial Court Opinion,

3/25/14, at 7. The trial court also observed that Mother similarly used

alcohol and drugs with Father in the past. See id. Further, the trial court

considered Dr. Zaffy’s statement in her report that Father’s history of drug

and alcohol abuse did not pose a threat of harm to Child. See id. at 8.

The record reflects that the trial court also took into account Father’s

history of anger management issues with Mother and Maternal

Grandmother, and the fact that Father took an anger management course at

the time of the parties’ separation, pursuant to a PFA order that Mother

subsection (a) poses a threat to the child, and whether counseling is necessary. -13 - J-S42044-14

obtained against him. See id. at 7-8. The trial court found that there was

no evidence that Father cannot control his temper with Child, and noted that

Dr. Zaffy expressed no concern about Father’s ability to care for Child. See

id. at 8.

Finally, the trial court considered Father’s trial testimony that Mother

should experience what it is like to suffer some loss of time with Child. See

id. The trial court found that Father did not exhibit a retaliatory motive in

seeking primary physical custody. See id. The trial court was not

concerned about Father retaliating against Mother by withholding custody

from her, as the trial court had faith in the influence of Stepmother on the

situation, and the trial court advised that it would not accept any retaliation

by Father. See id. at 8-9.

The trial court’s conclusions are supported by competent evidence in

the record, and are not unfounded. Therefore, the trial court properly

considered the section 5328(a) factors, and determined that it was in Child’s

best interests to award Father primary physical custody of Child.

Accordingly, we affirm the Order of the trial court.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/16/2014

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IN THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA

M.M. Plaintiff

.~ VB. No. 2012 - 0483 - CIVIL K.I" . Defendant

MEMORANDUM and ORDER

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IN THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA

• No. 2012 - 0483 - CIVIL

Defendant

MEMORANDUM

• VALASEK, P.J .

Before the Court for disposition is a complaint to

X.kii'.·\.d....., modi f y custo d y of • • • • born May 3, 2005 ("Child") M. trI. The petition to modify was filed by . . . . . . . . . .. ("Father") k.M. on May 29, 2013. ("Mother") currently has

primary physical custody of Child pursuant to a consent custody

order entered by the Court on October 25, 2012. Father now seeks

primary physical custody of Child.

The Court conducted a custody trial on January 24, l 2014, at which time the parties appeared, represented by counsel.

The Court heard extended testimony from Mother, Father and Child,

and brief testimony from other witnesses. The trial record also

includes psychologist Donna J. Zaffy's written report ("Zaffy's

ReportH) of psychological evaluations she performed of Mother, S-tepM~ Father, 7 Child, and ("Maternal

Grandparents H) Circulated 08/27/2014 10:26 AM ,, 1 v, ...._IIII!I' No. 2Q12-0483-Civil

FACTS

After reviewing the entire record, the Court makes the

following findings of fact.

Father, age 41, lives in a house in Clarion, Clarion

County on a one-acre lot in town. Mother's residence is located

in South Buffalo Township, Armstrong County, approximately 50

miles away from Father's residence. The drive from one house to

the other takes approximately an hour and fifteen minutes.

Father is a high school graduate.

Father has worked at Clarion Boards Industry since

August 12, 2013. Before working at Clarion Boards, Father

worked at B & W Smith Excavating as a foreman setting up gas

fields. For the excavating company, he was on the road a lot,

worked 19 to 20-hour days, and never knew when he would be

working.

Father quit the gas field job to improve his chances ( of gaining primary custody of Child and to make himself more

available to Child. For years, Child has been asking Father if

he could live primarily with Father. Father told Child he would

do what he could do to satisfy child's request.

Father now works Monday through Friday from 7:00 a.m.

until 5:00 p.m. Father's mandatory hours are from 7:00 a.m.

until 3:00 p.m., but Father works extra to receive overtime pay.

However, Father is able to leave work if he needs to, so he is

2 Circulated 08/27/2014 10:26 AM n' ! v . ••-IIIP No. 2012-0483-Civil

available if Child needs him for some reason. Father works only

2% miles from his home. 8.M. (l'Sfefm.+h«') Father married his high school sweetheart, . . . . . . .

, on October I, 2011. They started seeing each other

shortly after Mother and Father divorced. SWMO~ . . . . . . . . works for Krause USA, where she has worked for

15 years. She is the manager of customer service and works from • 8:00 a.m. until 5:00 p.m. ·;tett"S~r has some flexibility in her

( hours.

The summer of 2013 was the first summer that Mother

and Father exercised physical custody of Child on a week on/week

off basis. Prior to 2013, Mother had primary custody of Child

in the summer.

when Father had custody of Child in the summer of

2013, Child was mostly taken care of by Father's mother. Father

prefers to have family members take care of Child rather putting ,f him in day care.

Child did attend a neighborhood day care facility

approximately two days a week in the summer of 2013. Child

loved attending the day care, where about six of his friends

also go. The day care facility is very close to Father's house.

Father's mother ("Paternal Grandmother") is Father's

first choice for child care because, among other things,

Paternal Grandmother has a mentally retarded son, D. 77 with

3 .7"•. 6_.1v ... No. 2012-0483-Civil Circulated 08/27/2014 10:26 AM

whom Child loves to play cards. Child and Paternal Grandmother

have a very close relationship.

Paternal Grandmother works at WalMart approximately 20

hours a week.

Father's sister house, Paternal Grandmother's

house, and Father's house are places where Father's family gets

together for family gatherings. All of Father's family lives

within three miles of his home, except for one sister, who lives

30 minutes away in Oil City.

met Child approximately one year after Father s.~.fu,r l:tgMOtiov and 2 began dating. Child opened up to fairly

quickly and they get along very well. Sk,fM.ft>w ~1."51T. and Child are inseparable when Child is at

Father's house. S\GvIl'1'#1w I 7 cooks, cleans, feeds, buys clothes for Child,

and helps him with his schoolwork. Father tries to help Child

with his schoolwork "a little," but Child prefers to do it with

~ $ktrW1~ Child has difficulties reading. Father and (

try to make Child read a minimum of 15 minutes a day.

In previous years, Father was not very involved with

Child's schooling. In the school year beginning in August of S\QJm,\+IW' 2013, however, Father and FAtS attended the parent S\.tf~ orientation and parent-teacher conferences. 2 $ has also

4 ""'v._ ~483-Civil Circulated 08/27/2014 10:26 AM

been communicating with Child's school via e-mail. Father looks

over Child's schoolwork and papers when Child brings his school

backpack to Father's house.

Father has not participated in Child's health

appointments in the past. However, he plans to do so in the

future. ~~11w IIIIIIII places a great deal of importance on Mother

seeing Child. Should Father receive primary physical custody of S\efvrto+llw { Child, tIIIIIt is amenable to Child seeing Mother whenever Child

wants.

Father's house is located in the Clarion-Limestone

School District. The elementary school that Child would have to

attend in that district is an hour's bus ride away from Father's

house. Father does not want Child to ride the school bus two

hours a day. Instead, if Father receives primary physical S\ep!vi

Clarion Elementary School, which is just a mile away. Clarion

Elementary is operated by the Clarion Area School District.

There are three third grade classrooms at Clarion

Elementary School and approximately about 24 or 25 children ln

each class.

Currently, Child attends school at south Buffalo

School in the Freeport Area School District. There are fifteen

children in his third grade class.

5 Circulated 08/27/2014 10:26 AM 7 j v, J

No, 2012-0483-civil

Father wants Child to transfer to Clarion'Elementary

immediately if Father is granted primary custody of Child.

However, he is willing to wait until the next school year to

change Child's school if that is what a professional recommends. S.(e.p...,.!hw If Father gains primary custody of Child, ~ will

take Child to Clarion Elementary School in the morning and pick <5!e?rI'1o+l-!e-,- him up in the afternoon. . . . . . . . . will drop Child off at

Paternal Grandmother's house after school. If Paternal

Grandmother is not available, Child will stay with,SR ...••. Father's sister, or with • • • e 2 his ..... 22-year-old niece. Child

can also walk to the nearby day care center to be with his

friends if he wants to.

According to Father, he raised Child until about the

age of three, when Mother and Father separated for good.

When Mother and Father separated in 2009, Mother filed

a protection from abuse petition against Father. Under the PFA

order subsequently entered, Father was required to attend six

weeks of anger management counseling. Father completed the

class as required.

The PFA order also contained custody provisions

whereby Child lived primarily with Mother and Father saw Child

every other weekend.

According to Father, Mother never allowed Father to

spend any additional time with Child, even when Father requested

6 --.qv.. s..._ No. 2012-0483-Civil Circulated 08/27/2014 10:26 AM

it, unless Father first agreed to relinquish other time with

Child. Mother denied this.

On May 17, 2013, Mother called Father and 8.S. tell them that her live-in paramour, had tried 8·S • to attack Child twice the previous evening at Mother and • 's

home. B.S. Mother told them she had protected Child from . . . . . and

would never let 7 M. hurt Child. Mother stated that Child M. would never be around 2 again.

At the time of the phone call to Father, Mother had

just removed herself and Child from the house they had been J.l.alf·8m~1' sharing with,&.$'. Mother moved herself, Child and'S""_. 8,<'. . (Mother's baby by . . . . . . ) lnto Maternal Grandparents' house

nearby. Mother and Child had lived with Maternal Grandparents B.s. before moving in with .tlli.t On May 17, 2013, Father informed Mother that he B.s. intended to file a protection from abuse petition against .......

on Child's behalf. Mother did not object.

However, that weekend, Mother and her father called 8.S Father to urge him not to file a PFA petition against 1IIIIiiiIt. Father filed a petition anyway. A full PFA hearing was

conducted in June of 2013. The Honorable Joseph A. Nickleach

denied the PFA petition, telling the parties that he believed

the matter was a custody issue.

7 Circulated 08/27/2014 10:26 AM . . . . .,. v. E 3E No. 2012 0483-Civil

When Mother was living with e.>'%, Child never wanted

to return to Mother's house after Child's visits with Father. 8.S. Child told Father he was afraid of 7 S.

Father was glad when Mother and Child moved back in

with Maternal Grandparents because Father knew that Child would

be safe and well-taken care of there.

Father has a criminal record consisting of three

driving under the influence convictions: one in 1991, ODe in

1992 and the last one in 1996. Father was also convicted of

possession of marijuana in 1999.

Father acknowledged to Dr. Zaffy that he had "a past

history of alcohol and drug use including prescription pills

(Vicodin) " Zaffy Report, at 13.

Father went to a 2S-day drug and alcohol

rehabilitation program at ARC Manor after his second DUI arrest.

Father also participated in Alcoholics Anonymous "for awhile,"

but has not done so for the past fifteen years. Father said he

now feels comfortable drinking alcohol because through

counseling, he has dealt with the problems that caused him to

drink excessively. Father testified that he drinks about four

beers per week and no longer smokes marijuana. The threat of

Father relapsing back to where alcohol is a problem is

negligible.

8 Circulated 08/27/2014 10:26 AM

_1 . . . . . .v· . . . . No. 2012-0483-civil

Based upon his past experience, Father is highly

concerned about what kind of man Mother will date when she moves

out of Maternal Grandparents' house. Father is also concerned

that Mother will move back into the house she lived in with

~. Such a move would greatly upset Child, who has bad

memories of living there.

Father is also concerned about Maternal Grandfather's

behavior. Father said Maternal Grandfather sometimes made Child

cry when he ("Maternal Grandfather") yelled while watching

football. Father also said that Paternal Grandfather said mean

things about Father to Child, including that Father brainwashed

Child. Father admittedly does not get along with Maternal

Grandfather.

Father said it is in Child's best interest to live

primarily with him and sttrvloth~cause they can provide Child

with a stable, active, and stimulating life, and can surround

Child with people who will give Child all of their attention.

Father also said it would be better for Child to live in town

among his friends rather than to be isolated out in the country-

side with Maternal Grandparents. In addition, Child has his own

bedroom at Father's house.

Father is bitter about the limited amount of time he

has spent with Child since the parties separated in 2009.

Father told the Court that if he receives primary custody,

9 Circulated 08/27/2014 10:26 AM v. NO. 2012-0483-civil

Mother should be granted custody of Child every other weekend,

including in the summer, so that Mother could feel what it has

been like for Father to not see Child for two weeks at a time.

Father said Mother should just have two weeks extra with Child

during the summer, not week on/week off custody. Father later • told the Court that he did not mean what he said.

Mother, age 37, lives in a four-bedroom house in South ""I.f·~ Buffalo Township with her parents, Child and • Mother

has an undergraduate degree in business management and a

master's degree in education.

Mother works as a customer service associate with PNC

Bank at Pittsburgh Mills. She has worked there since 2012.

Mother works forty hours a week. She works from 8:45 a.m. until

6:15 p.m. two or three days a week. Otherwise, she works from

8:45 a.m. until 3:45 p.m.

Mother is required to work two Saturdays per month.

Mother works on the Saturdays that her boys are with their

fathers for the weekend.

Mother gets Child ready for school before she leaves

for work. After she leaves, Maternal Grandfather makes Child

breakfast. When Mother comes home from work, she takes over

eare of Child and . . IIvJf. \'b rotl1 W- . ~.s. Mother and her former paramour, .S ~, .... began living

together in November of 2011. Child lived with them in a home

10 Circulated 08/27/2014 10:26 AM 2 I V· _ _ III No. 2012-0483-Civil

&.5. owned by I.SIl" s ex-wife located approximately half a mile from B.S" Maternal Grandparents' home. . . . . . '8 two children also lived at

the house fifty percent of the

On August 22, 2012, Child's half-brother, was

born. B.S, The incident that spurred Mother to l e a v e ' " began

with a fight between Child and • e,.,lilt ...;;B.. j I ,S a __ f solder child, on B.S.

( . May 16,

called L e 2 13. • Fa ?

liar. 7 and Mother started to argue and Mother

The fight turned into a family argument. S.~ . 1b.1?. Mother asked. ; to leave. When 7 refused, Mother called j1, .S. the police, who then came to the house . . . . . . 's ex-wife also

came and removed her children.

Later that night, Mother made the decision to move

back in with Maternal Grandparents the next day. Child was

overjoyed to hear that he was moving back in with Maternal

Grandparents. Child excitedly ran up to Maternal Grandparents'

van when they arrived the next day to take him, Mother and \tth1.f.Pi..+t!V • back to their house.

According to Mother, is an alcoholic. Mother fJ.s . stated that her relationship with . . . . was "bad" and "got worse

over time."

Mother testified that Child did not tell her he did

not like living with .~·~i until after Mother and Child had

already moved back in with Maternal Grandparents.

11 Circulated 08/27/2014 10:26 AM • _l1li. 2 v . •2. . No. 2012-0483-Civil

Child has told Mother that he did not like living with ~.s. and does not want to live in that house again. Child has

also told Mother that he wishes to live primarily with Father.

Maternal Grandparents, Mother, and the children live

together in the home in which Mother grew up. The house has

three bedrooms. Child either sleeps with Mother or in the same 1-lA1-f. room as

Mother is the primary caregiver to Child and

when she is home. Mother takes the children for their medical

care.

Maternal Grandparents have always provided babysitting

for Child, even when Mother and Child did not live with them.

Maternal Grandfather is a retired teacher and

elementary school principal. Maternal Grandmother is a retired

German teacher.

Child is close to Maternal Grandparents and enjoys , i their company.

Child is close to his half-brother~ and

enjoys playing with him.

Child has attended school in the Freeport Area School

District since kindergarten and has many friends there. Child

cannot walk to see his friends because they hang out in the

Borough of Freeport, which is five miles away from Maternal

Grandparents' house.

12 Circulated 08/27/2014 10:26 AM

No. 2012-0483-civil

Child plays on a basketball team through the family's

church. Mother is Child's basketball coach.

Father brings Child to Child's basketball games when

Child is staying with Father.

Child is in third grade. He has been struggling with

reading and receives special help during the school day pursuant

to Title I. There is also after-school tutoring available at

school. However, Mother has been told by the school that the

after-school tutoring would not be helpful to Child.

Mother works with Child after school to improve his

reading, spelling and vocabulary skills. Maternal Grandparents

also help Child with his reading and his homework.

There is a Custody Order consented to by Mother and

December of 2013 which gives Mother primary physical

custody of , b,~. 'I has partial custody of fIp If· flOt\1W' every

other weekend from 9:00 a.m. until 7:00 p.m. on Saturday and on ( e, ,S. !lA1f..&~ Sunday, 0 , also has custody of 1 two days during the

week.

Mother said she has no plans to leave her parents' I-W.I+.~~ home "right now." She testified that she, Child and 7 7 are stable and happy and there is no reason to leave.

Mother said she will not remain at Maternal

Grandparents' house indefinitely, however. Eventually, when she

has enough money, she plans to move to an apartment.

13 Circulated 08/27/2014 10:26 AM

• No. 2012-0483-Civil

Mother and the children are welcome to stay with

Maternal Grandparents as long as they want. Maternal

Grandmother said Mother had not talked to her about any

"immediate" plans to leave. ~.s. Mother owns the four-bedroom house that she a n d . - . .

previously lived in. Mother currently has a tenant occupying

the house. The rent she receives from the tenant pays for her

$1,179 monthly mortgage payment. Mother said that before moving

back into that house, she would first ask Child if it would

bother him to live there again.

Because of Mother's "bad" relationships with Father ~.£. and~, Mother is seeing a therapist. She is learning how to

set boundaries in her relationships with significant others and

how to be more assertive.

Mother and Father have worked out a system of

communication consisting of text messages and telephone calls. {

Mother frequently calls SWTDrw I since the two of along

and communicate calmly. Mother finds talking to 1;~~I~e:as i e r than talking to Father.

Mother calls Father them of what

she has learned at Child's medical appointments. ~Of\1'" Mother and4llillt coordinate their vacations with one

another. Mother and her family spend a week at the beach in Circulated 08/27/2014 10:26 AM

North Carolina every yeari Father and his family spend a week at

Myrtle Beach.

Because of the traumas that Child has suffered, Mother

supports Child having a full mental health assessment and

possible mental health counseling as Dr. Zaffy has suggested.

Both Father and Mother admittedly partied with drugs

and alcohol prior to the time Child was born. Father and Mother

continued to use drugs and alcohol at times until Child was

approximately three years old.

and

Father She is

concerned that if Child lives primarily with Father, his reading

issues will be totally ignored, he will not be disciplined, and

he will lose his strong bond with his little half-brother.

The Court interviewed Child in chambers. The Court

agrees with Dr. Zaffy that Child "did not appear to be coached ( but, rather, to be sharing his own thoughts and feelings."

Zaffy Report, at 10.

Child wishes to live mostly with Father because "I

like him and I like to see him a lot." Child told the Court,

"It would make me feel happy to live with my Dad."

Child said he gets along better than with

Mother. He also said that he gives Mother, but not5~ a

15 , Circulated 08/27/2014 10:26 AM

hard time about having to do his homework. Child likes doing

homework with ~ Father and Child read together every night for fifteen

minutes before bed. Father told Child he will do homework with

Child if Child comes to live with him.

Child said he would have no problem going to a new

school and not being around his old friends. Child said he

liked making new friends.

Child said he would miss Mother if he lived primarily

with Father, so he would like to live with Mother ODe week OD,

one week off during the summer. Child said he did worry about

Mother missing him when he was with Father in the past.

Child told the Court that he was scared living with &.$. "because he was always mean to me. 1/ In addition, 's

two children would do "stuff" and put the blame on Child.

Child said Mother knew that Child was scared [when ~S. they were living with ], but that she still wanted to live ~.S. with

Child worries that he might have to live in the same

house again that he had lived in with B.s. Child said he did

not want to remember what had happened there. He mentioned bad

memories of .....~iiilS ~& •. getting drunk, yelling at him and throwing him

on the couch. Circulated 08/27/2014 10:26 AM

Father has told Child that he missed Child a lot when

Child was not with him. Father told Child that he sometimes

slept on Child's bed when he missed Child. Child misses Father,

too, when Child is not with Father.

Asked what disparaging things Mother and Father have

said about each other to him, Child replied that Mother just

says Father is a lunatic, "that's all." Father says "bad stuff" • about Mother sometimes, Child said. Father told Child that he

did not like Mother and that Mother was being mean to him.

Dr. Zaffy conducted psychological evaluations of

Mother, Father, Child, srr~nd Maternal Grandparents for the

Court. Childs Dr. Zaffy said, ' _ ' s descriptions of his two

families indicate that he has formed positive attachments to

both of his parents and his well as

to his stepmother and maternal grandparents." Zaffy Report, at \. 10. (.kilt.! . . . . . . "enjoys interacting with members of the extended

families, especially mother's family." Id. at 10.

Dr. Zaffy stated, "In summary, ... , neither the

parents, stepmother, nor the grandparents are exhibiting any

mental health concerns that compromise their ability to care

appropriately for~. (klild All love IIIIIPand are able to meet

his emotional needs." Zaffy Report, at 22. "The primary

17 Circulated 08/27/2014 10:26 AM

concerns center on co-parenting and the difficulty the parents

have in communicating about their son." Id.

Dr. Zaffy ultimately recommended that Mother retain

primary custody of Child and that Father have additional

weekends with Child during the school year because she saw no • good reason to disturb the status quo. Dr. Zaffy was

particularly impressed with Maternal Grandparents, stating, "The

Ma~ ~~~~e to provide a stable, safe, and secure home

environment for both of their grandsons. Since both are

retired, they are available to provide child care if ,§~i1i is off ~~~~o~rs ill when his mother is at work. In addition, the

both of whom are teachers, are well-equipped to help

& W i t h his academic challenges." Id.

DISCUSSION

The primary concern in any custody case is the best

C interests of Child. This best interests standard considers all

factors that legitimately have an effect upon Child's physical,

intellectual, moral, and spiritual well-being. Saintz v.

Rinker, 902 A.2d 509, 512 (Pa.Super. 2006).

Section 5328 of the Pennsylvania Child Custody Law, 23

Pa.C.S.A. § 5328(a), provides a list of factors that the Court

must consider in making any custody determination. We address

each factor separately below.

18 Circulated 08/27/2014 10:26 AM

1. Which party is more likely to encourage and

permit frequent and continuing contact between Child and the

other party. In the past, Mother has been the party less likely

to encourage and permit frequent and continuing contact between

Child and Father. At present, the Court believes that neither

party is more likely to do so than the other. Father has

expressed some desire to give Mother a taste of her own

medicine. However,Sf€t~~ a positive influence on Father in

( this regard and is likely to encourage Child to have extra time

with Mother, not less.

2. Abuse committed by a party or a member of a

party's household. Mother obtained a PFA order against Father

in 2009 when Mother and Father separated. Mother told Dr. Zaffy

that the PFA was based upon a push that Father gave her. The

PFA required Father to take anger management classes. Father

complied. In her evaluation of Father, Dr. Zaffy expressed no \. concerns regarding Child's safety around Father. The Court

finds that Father poses absolutely no danger to Child.

3. The parental duties performed by each party on

behalf of Child. It is not clear who the primary caregiver for

Child was prior to separation. Mother has had primary physical

custody of Child since the parties separated in 2009. Mother

takes Child to see the doctor and helps Child with his homework.

Mother has been the parent interacting with Child's school until

19 Circulated 08/27/2014 10:26 AM

SIt(mIGthU' the 2013-2014 school year, when Father and ~have become

more involved.

4. The need for stability and continuity III Child's

education, family life and community life. Child is

affirmatively asking to change his school, community, and family • life. Child seems quite happy at the prospect of doing so.

Child remains quite shaken from his experience of having lived ~.s. ~$. with 7 . , an angry alcoholic, and . . . . . '8 bullying children

for a year and a half. Child evidently feels more secure with

Father and SW lYl oli1u'than with Mother, whom he foresees will move

out of Maternal Grandparents' house, thus subjecting Child to

more uncertainty.

5. The availability of extended family. Both Mother

and Father have extended family to help out with child care.

6. Child's sibling relationships. Child has

developed a solid bond with half-brother-• • • • • • • C

7. The preference of Child. Child has been asking

to live with Father andS~or years. There is no evidence

that Child has been coached or subverted into making this

request. Child simply wishes to spend significantly more time

with Father. He also likes being around~with whom

Child has developed a very strong bond. The strength of Child's

relationship with~s illustrated by the fact that Child,

by his own admission, makes a big fuss when it is time to do his

20 Circulated 08/27/2014 10:26 AM

No. 2012 0483-Civil

homework, but not when he is With~ Sl-epMJi:!!er _ is Child's

favorite person to do homework with, which is extremely

important, since Child has been struggling with reading and does

not like to do homework at all.

8. The attempts of a parent to turn Child against

the other parent. There is evidence that Mother and Father have

occasionally tried to turn Child against the other parent by

making disparaging remarks in front of Child.

9. Which party is more likely to maintain a loving,

stable, consistent and nurturing relationship with Child

adequate for Child's emotional needs. Father is more likely to

do so. Father demonstrated a great deal of commitment to

Child's welfare when he quit his previous job, which required

long hours and frequent absences from home, to make himself

available to Child on a daily and consistent basis. By

contrast, Mother showed extremely bad judgment and a lack of { ~.'S. concern for Child when Mother chose to remain with in the

face of Child's expressed fear of e..s. 7 and the situation.

10. Which party is more likely to attend to the daily

physical, emotional, developmental, educational and special

needs of Child. Father is more likely to do so with the help of

his wife,

11. The proximity of the residences of the parties.

The parties live approximately fifty miles apart.

21 Circulated 08/27/2014 10:26 AM

No. 2012-0483 Civil

12. Each party's availability to care for Child or

ability to make appropriate child-care arrangements. Each party

is available to care for Child when not working. Each party

also has the ability to make appropriate child-care

arrangements.

13. The level of conflict between the parties and the

willingness and ability of the parties to cooperate with one

another. The parties have a significant level of conflict. It

is not clear that either party is more willing and able to Sffiltl1 0fhw cooperate than the other. The Court sees . . . . . . . . as a very

helpful go-between for the parties at this point. However, it

is in Child's best interests that Mother and Father learn to

deal with each other directly.

14. The history of drug or alcohol abuse of a party

or member of a party's household. Father has a history of drug

and alcohol abuse. He does not currently appear to be abusing

substances, however. Mother also has some history of alcohol

and drug abuse, although not to the extent that Father does.

Chances of a relapse by either are negligible.

15. The mental and physical condition of a party or

member of a party's household. The parties and the members of

their households do not suffer from any mental or physical

conditions that significantly affect their abilities to care for

Child.

22 Circulated 08/27/2014 10:26 AM

• NO. 2012-0483-civil I]

16. Any other relevant factor. In recommending that

Child remain primarily with Mother, Dr. Zaffy placed a great

deal of weight on Child's bond with his half-brother

It is true that the "general rule is that siblings

should not be separated without compelling reasons .... If Swope v.

Swope, 689 A.2d 264, 265 (Pa.Super. 1997) (citation omitted) .

However, this policy is "only one factor to be considered in

determining the best interests of the child." Id. " [A]ny

l benefit derived from forcing a child to reside with one of its

parents solely for the purpose of keeping the siblings together

can be outweighed by the detrimental effects on the child who

prefers not to live with that particular parent." Sykora v.

Sykora, 393 A.2d 888, 889 (Pa.Super. 1978). We note, too, . that \ttI.\f·~\tIw Child and I are only half-siblings, not full-siblings.

In the instant case, Child has been thinking about

where he wants to live for years. Although Child is close to

~:'~:~and Maternal Grandparents, Child has repeatedly stated

that he is "OK" with being separated from tln'f.f~ and Maternal

Grandparents and that he places a higher importance on being ~l\1oH7ey with Father and-~.

Mother testified that she intended to move out of her

parents' house and strike out on her own when she has enough

money to rent an apartment. Mother emphasized that she did not

intend to move out "right now." Maternal Grandmother emphasized

23 Circulated 08/27/2014 10:26 AM

that Mother had not discussed any "immediate" plans to move out.

However, to the Court, these carefully chosen words suggest that

Mother will be moving out sooner rather than later.

That prospect is what causes Child to be worried about

the future. Understandably, given his previous bad experience,

Child does not want to move somewhere else with Mother. Child

has stated that if and when Mother does move out, he would much

rather go live with Father, or failing that, remain with

Maternal Grandparents in their home.

The record is clear: Mother chose to reside with an

angry, alcoholic boyfriend for a year and a half, despite the

fact that, as Mother herself put it, the relationship was a bad

one and got worse over time. Mother decided to keep Child in a

toxic and unsafe situation, even after Child told Mother that he (l)S. e, .S. was afraid of & i and that _ had pushed him. 1

Mother's poor judgment and apparent lack of concern (

for Child's well-being was not lost on Child. He seems

determined not to be put in that situation again. Child wants

certainty and security, not uncertainty and insecurity. He s.h>J1lV1o+\1t.r prefers to live with Father and-. . . . . . . , who have a loving

t es. Mother testified that she did not know Child was afraiGlgf ...... until after they had moved out of the house they were sharing with~.~ Court does not find Mother's testimony to be credible. Child made it clear that he had told Mother that he was afraid, and that she decided to stay with . . . . . anyway. &.!i-

24 Circulated 08/27/2014 10:26 AM

marriage and who show every intention of staying put in Clarion.

Child's desire is wholly rational.

As shown above, there are compelling reasons for Child

to live primarily with Father, despite the fact that he will be H1Ilf.(3~ separated from & 1.2 Therefore, the Court finds that it is

in Child's best interests to live primarily with Father and will

award Father primary physical custody of Child . • An appropriate Order will be entered.

2 In recommending that the status quo be maintained, Dr. Zaffy placed great emphasis on Child's close bond with Maternal Grandparents and their availability to care for Child. Dr. Zaffy ignored Mother's stated intention to move from Maternal Grandparents' home in the foreseeable future. She also did not factor in the substantial anxiety that child feels about moving elsewhere with Mother.