Mo v. Fw

42 A.3d 1068, 2012 Pa. Super. 49, 2012 WL 621985, 2012 Pa. Super. LEXIS 54
CourtSuperior Court of Pennsylvania
DecidedFebruary 28, 2012
Docket2360 EDA 2011
StatusPublished

This text of 42 A.3d 1068 (Mo v. Fw) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mo v. Fw, 42 A.3d 1068, 2012 Pa. Super. 49, 2012 WL 621985, 2012 Pa. Super. LEXIS 54 (Pa. Ct. App. 2012).

Opinion

42 A.3d 1068 (2012)
2012 PA Super 45

M.O., Appellant
v.
F.W., Appellee.

No. 2360 EDA 2011.

Superior Court of Pennsylvania.

Argued January 10, 2012.
Filed February 28, 2012.

*1069 Dean W. Ibrahim, Doylestown, for appellant.

Judith A. Algeo, Doylestown, for appellee.

BEFORE: PANELLA, LAZARUS, and STRASSBURGER,[*] JJ.

OPINION PER CURIAM:

M.O. (Father) appeals from the trial court's order granting Appellee, F.W. (Mother), sole legal custody and primary physical custody[1] of the parties' four-year-old *1070 daughter, O.O. (Child). Father was granted two-hours (5:00 p.m.-7:00 p.m.) of supervised visitation with Child twice a week. After careful review, we affirm.

Child was born on June 13, 2007; Mother and Father never married. Custody litigation between the parties started even before Child was born. In September 2008, the parties entered into a private custody evaluation with Dr. Steven Cohen; the evaluation was completed in December 2008 and distributed to the parties. On November 2, 2009, by agreement of the parties, a custody order was entered that granted shared legal custody to the parties and primary physical custody of Child to Mother. Father was granted partial physical custody for a period of six days and six overnights on a rotating two-week basis.

On January 7, 2011, Father filed a Protection from Abuse (PFA) Act petition alleging that Mother and her boyfriend, K.M., were physically, emotionally, psychologically and sexually abusing Child. Based upon these same abuse allegations, Father filed an emergency petition to modify custody on January 20, 2011.[2] The trial court held a hearing and continued the PFA matter for 30 days, directing that the matter be heard with the custody petition. After Father filed the petition to modify custody[3] requesting that the court issue an order granting him full physical and legal custody of child "until such time as the Child is capable of evading physically and emotionally abus[ive] situations with Mother and her Paramour," Mother filed a contempt petition alleging that Father's allegations of abuse were false and that he had subjected Child to evaluations by experts without her knowledge and consent. Mother requested that the court grant her sole legal custody and require that Father's visits with Child be supervised.

The trial court held a consolidated hearing on the custody, contempt and PFA matters over the course of seven days in April and May of 2011. On June 9, 2011, the trial court entered a temporary custody order giving Mother sole legal and physical custody of Child and requiring Father's visits with Child be supervised to prevent him from having Child subjected to additional doctor visits or physical examinations. Mother's supervised custody periods were lifted at this time. Father filed motion to recuse and a mistrial on June 16, 2011; the court held all custody proceedings in abeyance until it ultimately denied the motions.

After hearing extensive testimony and reviewing numerous exhibits, the court found that all evidence of abuse when Child was in Mother's custody was completely unfounded, that there was no evidence to substantiate Father's beliefs and "that Father, in fact, manufactured the evidence in order to gain custody and control over his daughter without interference from or consultation with Mother [and] that this heinous attempt to wrest *1071 custody from Mother and, in effect, terminate her relationship with her daughter, is so detrimental to the child's welfare that the court was left no option but to limit his contact with his daughter so as to prevent any further attempt to poison her mind." Trial Court Opinion, 10/6/2011, at 4. Subsequently, on August 22, 2011, the court entered a final custody order directing that Father have two two-hour supervised visits with Child each week, the visits to be arranged at Mother's convenience.[4]

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

(1) Whether the trial court abused its discretion, and/or erred as a matter of law, by awarding Mother sole legal and primary physical custody of the Child, with supervised partial physical custody to Father, where such award is against the weight of the evidence in the record, including, but not limited to, credible expert testimony, photographs, and documented long-term observation.
(2) Whether the trial court abused its discretion, and/or erred as a matter of law, by denying Father's Motion to Remove Counsel.
(3) Whether the trial court abused its discretion, and/or erred as a matter of law, by denying Father's Amended Motion for Recusal and Amended Motion for Mistrial, which were based upon the trial court's alleged bias and prejudice against Father.
(4) Whether the trial court abused its discretion, and/or erred as a matter of law, by admitting into evidence a prior custody evaluation report prepared by Dr. Cohen.
(5) Whether the trial court abused its discretion, and/or erred as a matter of law, by entering a Temporary Custody Order on June 9, 2011, which awarded Mother sole legal and physical custody of the Child, with Father to have supervised partial physical custody of the Child at times that could be arranged with Mother.

We rely upon the Pa.R.A.P. 1925(a) opinion authored by the Honorable Diane E. Gibbons in affirming the custody order with regard to Father's first three issues on appeal. Judge Gibbons has thoroughly and cogently addressed the issues regarding why the custody order is in the best interest of Child (numerous Children and Youth and police investigations regarding Mother's alleged abuse of Child, initiated at Father's hands, were reported as unfounded; Father's witnesses at hearings provided testimony that was not only inconclusive, but speculative at best); why the court properly denied Father's petition to remove Mother's counsel (court found counsel credible when she testified she never spoke to Father or Dr. Weinstein about instant custody case); and why the court correctly denied Father's motions to recuse and for a mistrial (court acted in an unbiased manner, interjecting its comments to keep custody hearings on track and testimony relevant and responsive to questioning). In fact, we commend Judge Gibbons for her refusal to allow such a blatant attempt of forum shopping to occur during a hotly contested custody battle. The record supports the conclusion that Father attempted to have the trial judge recuse herself after several days of testimony and his belief that the trial was not *1072 going his way. This manipulation of the court system cannot be allowed or encouraged. Judge Gibbons followed the appropriate procedure and ruled on the recusal motion timely. It is now a matter of appellate review and we can discern no abuse of discretion in the denial.

In addition, Father claims that the trial court erred in admitting[5] a 2009 custody evaluation report prepared by Steven R. Cohen, Ph.D., a licensed psychologist. We find no merit to this claim.

In September 2008, the parties hired Dr. Cohen to prepare a custody evaluation (report) for anticipated custody proceedings. Although the report was completed in 2009, it was never utilized because the parties entered into a private custody agreement without resorting to court proceedings.

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Cite This Page — Counsel Stack

Bluebook (online)
42 A.3d 1068, 2012 Pa. Super. 49, 2012 WL 621985, 2012 Pa. Super. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mo-v-fw-pasuperct-2012.