R.S.K. v. D.L.K.
This text of R.S.K. v. D.L.K. (R.S.K. v. D.L.K.) 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.
Opinion
J-S77001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.S.K. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : D.L.K. : : Appellant : No. 2007 EDA 2018
Appeal from the Order Entered June 11, 2018 In the Court of Common Pleas of Bucks County Family Division at No(s): A06-12-61169-C
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 16, 2019
Appellant, D.L.K. (“Mother”), appeals from the June 11, 2018 order in
the Court of Common Pleas of Bucks County (“trial court”) that granted her
partial physical custody and R.S.K. (“Father”) primary physical custody of the
parties’ four children.1 The order granted Father sole legal custody regarding
the selection and treatment of the children by a psychologist or psychiatrist,
and the order granted the parties shared legal custody in all other
circumstances. Upon careful review, we affirm.
____________________________________________
Retired Senior Judge assigned to the Superior Court.
1The children are P.K., a female, born in April of 2002; S.K., a male, born in December of 2003; F.K., a male, born in October of 2005; and N.K., a female, born in July of 2009. J-S77001-18
In its opinion accompanying the subject order, the trial court set forth
the extensive factual and procedural history of this case, which the record
evidence supports. In its opinion, the court attached and incorporated Exhibit
A, “Time table of significant events,” which specifically sets forth the
procedural history of this case. See Trial Court Opinion, 6/11/18, at Exhibit
A. We adopt the trial court’s opinion in its entirety herein. See Trial Court
Opinion, 6/11/18.
By way of background, the underlying matter commenced in June of
2011, upon Father filing a complaint in divorce, and, as best we can discern,
a simultaneous child custody action in the First Circuit Court of Hawaii, where
the parties had resided since 2007. In November of 2011, Father relocated
to Doylestown, Bucks County, where he continued to reside at the time of the
subject proceedings. Mother temporarily relocated to the home of her father
in Staten Island, New York. In December of 2012, Mother returned to Hawaii,
where she has remained. Protracted custody proceedings have ensued in both
Hawaii and the trial court. In December of 2014, the trial court and the
Hawaiian court determined that subject matter jurisdiction resided in the trial
court.2
2 The Honorable Alan M. Rubenstein of the Court of Common Pleas of Bucks County presided over the underlying custody matter until he recused himself by order dated April 6, 2017. The Honorable Susan Devlin Scott presided over the subject proceedings.
-2- J-S77001-18
This appeal arises from Mother filing a petition on October 5, 2016, to
relocate the children to Hawaii and to modify the existing temporary custody
order. The existing temporary custody order, dated March 31, 2016, granted
Father sole legal and physical custody and suspended Mother’s custodial rights
pending further order. The existing order resulted from Mother’s failure to
return the children to Father from Hawaii at the end of their 2016 spring break
pursuant to the October 19, 2015 agreed-upon custody order.3 The trial court
found as follows, which the testimonial evidence supports.
When Mother illegally withheld the children in March, 2016, [the existing custody order] was issued. . . . Father then went to Hawaii to gain custody of the children with the assistance of the police. Mother attempted to flee with the children in a pick-up truck, and [P.K.] fell out of the back of the truck.
Trial Court Opinion, 6/11/18, at 3.
The trial court held an evidentiary hearing on Mother’s petition that
lasted for eleven days.4 The court issued temporary orders at the conclusion
3The October 19, 2015 custody order granted Father primary physical custody during the school year and Mother partial physical custody during the children’s spring break, inter alia; Mother primary physical custody during the summer; and the parties shared legal custody.
4 The hearing occurred on February 3, 2017, June 8, 2017, September 21, 2017, September 25-26, 2017, January 29-31, 2018, and May 23-25, 2018. Father was represented by counsel during the entire proceeding. Mother was represented by counsel during the first three hearing dates, and she represented herself pro se thereafter.
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of each of the hearing dates granting Mother partial physical custody when
she was present on the East Coast.
Mother and Father testified on their own behalf. Father presented the
testimony of his paramour, K.M.; D.M., a Doylestown resident whose daughter
has been a friend of P.K. since they were in fourth grade; and M.W.S., Father’s
aunt, who also lives in Doylestown. The children testified in the courtroom in
the presence of Mother, Father, and Father’s counsel on February 3, 2017,
and May 25, 2018.5
On February 3, 2017, P.K., then age fourteen and in ninth grade,
testified that she wants to live with Mother, “wherever she pleases, whether
that be New York or Hawaii.” N.T., 2/3/17, at 19. She stated, “I want the
option of seeing my dad if I want to, but I need time to heal from all of this,
very badly.” Id. P.K. testified that she has been traumatized by “the entire
past five years of dealing with police officers and being in court.” Id. at 16-
20, 34. P.K. blames Father for the protracted custody litigation and the need
for police officers to retrieve the children from Mother’s custody. Id. at 22-
23. P.K. maintained her preference to live with Mother during her testimony
on May 25, 2018. See N.T., 5/25/18, at 14-15, 30-31.
S.K., age thirteen and in seventh grade on February 3, 2017, testified
that he would like to go to Hawaii and live with Mother. He explained, “I
5 In July of 2015, in prior custody proceedings not related to the subject order, the children likewise testified. Trial Court Opinion, 8/10/18, at 4-5.
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haven’t seen her in a very long time.” N.T., 2/3/17, at 64. “[Hawaii is] where
I was born. . . . I kind of just prefer her over my dad.” Id. at 65. S.K.
continued on direct examination by Mother’s counsel:
Q. And why [do you prefer Mother over Father]?
A. He’s done a lot of stuff that he’s blamed on her, and I just don’t think it’s very fair. And, you know, I just don’t trust him as much anymore.
Q. And would you care to explain?
A. Oh, he said that my mom hit him with her truck and that’s not true, because I was actually there. He jumped on to the side of it and tried to hold on and like brake it or hit the brakes or something. So that was completely his fault.
Id. at 65.
With respect to the pick-up truck incident, S.K. testified that the two
younger children were inside the truck with Mother, who was the driver, and
he and P.K. “decided we should jump in the back.” Id. at 71-72. He
explained, “we hopped in through that thing that folds down and then we
closed it back up.” Id. at 71. S.K. continued on cross-examination by Father’s
counsel, “We started to pull away and [Father] jumped on, and I guess he like
fell on to the road while [the truck] was driving, and then he like, I don’t know,
just fell off.” Id. at 72.
Q. What happened to [P.K.] . . ?
A.
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J-S77001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.S.K. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : D.L.K. : : Appellant : No. 2007 EDA 2018
Appeal from the Order Entered June 11, 2018 In the Court of Common Pleas of Bucks County Family Division at No(s): A06-12-61169-C
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 16, 2019
Appellant, D.L.K. (“Mother”), appeals from the June 11, 2018 order in
the Court of Common Pleas of Bucks County (“trial court”) that granted her
partial physical custody and R.S.K. (“Father”) primary physical custody of the
parties’ four children.1 The order granted Father sole legal custody regarding
the selection and treatment of the children by a psychologist or psychiatrist,
and the order granted the parties shared legal custody in all other
circumstances. Upon careful review, we affirm.
____________________________________________
Retired Senior Judge assigned to the Superior Court.
1The children are P.K., a female, born in April of 2002; S.K., a male, born in December of 2003; F.K., a male, born in October of 2005; and N.K., a female, born in July of 2009. J-S77001-18
In its opinion accompanying the subject order, the trial court set forth
the extensive factual and procedural history of this case, which the record
evidence supports. In its opinion, the court attached and incorporated Exhibit
A, “Time table of significant events,” which specifically sets forth the
procedural history of this case. See Trial Court Opinion, 6/11/18, at Exhibit
A. We adopt the trial court’s opinion in its entirety herein. See Trial Court
Opinion, 6/11/18.
By way of background, the underlying matter commenced in June of
2011, upon Father filing a complaint in divorce, and, as best we can discern,
a simultaneous child custody action in the First Circuit Court of Hawaii, where
the parties had resided since 2007. In November of 2011, Father relocated
to Doylestown, Bucks County, where he continued to reside at the time of the
subject proceedings. Mother temporarily relocated to the home of her father
in Staten Island, New York. In December of 2012, Mother returned to Hawaii,
where she has remained. Protracted custody proceedings have ensued in both
Hawaii and the trial court. In December of 2014, the trial court and the
Hawaiian court determined that subject matter jurisdiction resided in the trial
court.2
2 The Honorable Alan M. Rubenstein of the Court of Common Pleas of Bucks County presided over the underlying custody matter until he recused himself by order dated April 6, 2017. The Honorable Susan Devlin Scott presided over the subject proceedings.
-2- J-S77001-18
This appeal arises from Mother filing a petition on October 5, 2016, to
relocate the children to Hawaii and to modify the existing temporary custody
order. The existing temporary custody order, dated March 31, 2016, granted
Father sole legal and physical custody and suspended Mother’s custodial rights
pending further order. The existing order resulted from Mother’s failure to
return the children to Father from Hawaii at the end of their 2016 spring break
pursuant to the October 19, 2015 agreed-upon custody order.3 The trial court
found as follows, which the testimonial evidence supports.
When Mother illegally withheld the children in March, 2016, [the existing custody order] was issued. . . . Father then went to Hawaii to gain custody of the children with the assistance of the police. Mother attempted to flee with the children in a pick-up truck, and [P.K.] fell out of the back of the truck.
Trial Court Opinion, 6/11/18, at 3.
The trial court held an evidentiary hearing on Mother’s petition that
lasted for eleven days.4 The court issued temporary orders at the conclusion
3The October 19, 2015 custody order granted Father primary physical custody during the school year and Mother partial physical custody during the children’s spring break, inter alia; Mother primary physical custody during the summer; and the parties shared legal custody.
4 The hearing occurred on February 3, 2017, June 8, 2017, September 21, 2017, September 25-26, 2017, January 29-31, 2018, and May 23-25, 2018. Father was represented by counsel during the entire proceeding. Mother was represented by counsel during the first three hearing dates, and she represented herself pro se thereafter.
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of each of the hearing dates granting Mother partial physical custody when
she was present on the East Coast.
Mother and Father testified on their own behalf. Father presented the
testimony of his paramour, K.M.; D.M., a Doylestown resident whose daughter
has been a friend of P.K. since they were in fourth grade; and M.W.S., Father’s
aunt, who also lives in Doylestown. The children testified in the courtroom in
the presence of Mother, Father, and Father’s counsel on February 3, 2017,
and May 25, 2018.5
On February 3, 2017, P.K., then age fourteen and in ninth grade,
testified that she wants to live with Mother, “wherever she pleases, whether
that be New York or Hawaii.” N.T., 2/3/17, at 19. She stated, “I want the
option of seeing my dad if I want to, but I need time to heal from all of this,
very badly.” Id. P.K. testified that she has been traumatized by “the entire
past five years of dealing with police officers and being in court.” Id. at 16-
20, 34. P.K. blames Father for the protracted custody litigation and the need
for police officers to retrieve the children from Mother’s custody. Id. at 22-
23. P.K. maintained her preference to live with Mother during her testimony
on May 25, 2018. See N.T., 5/25/18, at 14-15, 30-31.
S.K., age thirteen and in seventh grade on February 3, 2017, testified
that he would like to go to Hawaii and live with Mother. He explained, “I
5 In July of 2015, in prior custody proceedings not related to the subject order, the children likewise testified. Trial Court Opinion, 8/10/18, at 4-5.
-4- J-S77001-18
haven’t seen her in a very long time.” N.T., 2/3/17, at 64. “[Hawaii is] where
I was born. . . . I kind of just prefer her over my dad.” Id. at 65. S.K.
continued on direct examination by Mother’s counsel:
Q. And why [do you prefer Mother over Father]?
A. He’s done a lot of stuff that he’s blamed on her, and I just don’t think it’s very fair. And, you know, I just don’t trust him as much anymore.
Q. And would you care to explain?
A. Oh, he said that my mom hit him with her truck and that’s not true, because I was actually there. He jumped on to the side of it and tried to hold on and like brake it or hit the brakes or something. So that was completely his fault.
Id. at 65.
With respect to the pick-up truck incident, S.K. testified that the two
younger children were inside the truck with Mother, who was the driver, and
he and P.K. “decided we should jump in the back.” Id. at 71-72. He
explained, “we hopped in through that thing that folds down and then we
closed it back up.” Id. at 71. S.K. continued on cross-examination by Father’s
counsel, “We started to pull away and [Father] jumped on, and I guess he like
fell on to the road while [the truck] was driving, and then he like, I don’t know,
just fell off.” Id. at 72.
Q. What happened to [P.K.] . . ?
A. She was trying to climb in, and it started to roll away and she fell off of the back of the truck.
Q. When you say started to roll away, you mean your mom probably like hit the gas, right?
-5- J-S77001-18
A. Yes.
Q. So your mom hits the gas and your sister, [P.K.], fell off the back of the truck?
A. Mm-hmm.
Q. Because she wasn’t really even in the bed yet?
A. She was about to get in and then it pulled away.
Q. And so what happened to [P.K.]?
A. She was just kind of on the street. I don’t know if she – she started to walk towards the truck, but she was fine overall.
Id. at 72-73. Upon inquiry by the trial court regarding whether S.K. thought
that it was dangerous for Mother to pull away in the pick-up truck with P.K.
and him in the truck bed, he testified “Yeah. I can’t really remember, but I’m
pretty sure by the time that happened -- because my mom told me that
[Father] was . . . on her, that could have been the reason she probably got
her leg pushed down and probably hit the gas and then immediately stopped.”
Id. at 73-74. In his testimony on May 25, 2018, S.K. did not provide his
custody preference. See N.T., 5/25/18, at 104-105.
F.K., age eight and in fifth grade on February 3, 2017, testified that he
would like “to live with my mom and my dad, like maybe they both would
have . . . shared time.” On May 25, 2018, he testified, “I want to live with my
mom and have like my dad come in the summer.” N.T., 5/25/18, at 113.
N.K., age seven and in second grade on February 3, 2017, testified on
direct examination by Mother’s counsel:
-6- J-S77001-18
Q. You’ve lived with your mother. And how did you like that, when you lived with your mother?
A. I mean, I didn’t really like it too much, but I kind of liked it. I mean, I’d rather -- I like living [in Doylestown rather] than Hawaii, because like if I was going to travel there, it would take ten hours. So I kind of like staying here.
Id. at 116. On May 25, 2018, N.K. testified that she likes living with Father,
and she remembers liking it when she lived with Mother. N.T., 5/25/18, at
141-142. N.K. did not express a custody preference.
By order dated June 11, 2018, and entered on June 22, 2018, the trial
court issued a final order granting Father primary physical custody and Mother
partial physical custody from June 18, 2018, until July 30, 2018, to be
exercised in Pennsylvania, New Jersey, and/or New York. Beginning in 2019,
the order granted Mother partial physical custody for six weeks each summer,
during every Easter Break, and at specific times during odd and even years
for Christmas Break in Hawaii if Mother participates in eight counseling
sessions, at minimum, for the following purpose:
[to help Mother] understand why she withholds the children from Father, her interference with Father’s relationship with the children and her inability to acknowledge that Father has a role in the children’s lives. These sessions must be completed by November 1, 2018, and shall be with a licensed psychologist or therapist with a Ph.D.
Order, 6/11/18, at ¶ 6; see also id. at ¶ 3(b) – (d). The order directed that,
if Mother fails to complete the therapy sessions, then she shall exercise her
partial custody in Pennsylvania, New Jersey, and/or New York and not in
Hawaii. Id. at ¶ 6(d). In addition, the order granted Mother physical custody
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for the Thanksgiving holiday during even years in Pennsylvania, New Jersey,
and/or New York. Further, the order provided that, if Mother is in the
continental United States, she may have an additional four weekends of
physical custody during the school year in Pennsylvania, New Jersey, and/or
New York. Finally, the order granted the parties shared legal custody except
for decisions regarding the selection and treatment of the children by a
psychologist or psychiatrist, for which the order granted Father sole legal
custody.
Mother, through counsel, timely filed a notice of appeal and a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). The trial court filed its Rule 1925(a) opinion on August
10, 2018.
On appeal, Mother presents the following issues for our review:
1. Did the court err[] by not ordering that primary physical and shared legal custody be awarded to Mother. . .?
2. Did the court abuse its discretion in ordering that Father shall have sole legal custody of the children with respect to the selection and treatment of the children by a psychologist or psychiatrist?
3. Did the court abuse its discretion in [¶] 3(a) of the [subject] custody order that Mother . . . “shall have partial physical custody of the children from 9:00 a.m. on June 18, 2018 until 8:30 p.m. on July 30, 2018. This custody shall occur in the Pennsylvania, New Jersey, and/or New York area”?
4. Did the court err by issuing an order on March 31, 2016 granting temporary sole custody to [Father]?
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5. Did the court abuse[] its discretion in finding “. . . Mother has some paranoid tendencies in that she believes the court systems in Hawaii and Pennsylvania are biased against her and this is the reason she doesn’t have custody”?
6. Did the court abuse its discretion in its assessment of the relocation factors?
Mother’s brief at 4-5.
Our 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).
Further, we have stated the following.
[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).
-9- J-S77001-18
Pursuant to the Child Custody Act (“Act”), 23 Pa.C.S. §§ 5321-5340, in
considering modification of an existing custody order, “a court may modify a
custody order to serve the best interest of the child.” 23 Pa.C.S. § 5328(a).
“The best-interests standard, decided on a case-by-case basis, considers all
factors that 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), quoting Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super.
2004). Section 5328(a) provides the following enumerated list of factors a
trial court must consider.
§ 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.
(2.1) The information set forth in section 5329.1(a)(1) and (2) (relating to consideration of child abuse and involvement with protective services).
(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.
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(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.
(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. § 5328(a).
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Instantly, because neither Mother nor Father was seeking to relocate,
but only the children would be moving a significant distance if Mother’s petition
for modification was granted, Mother’s petition “does not per se trigger
[S]ection 5337 of the . . . Act.” D.K. v. S.P.K., 102 A.3d 467, 477 (Pa. Super.
2014). Nevertheless, we have held, “[t]rial courts should still consider the
relevant factors of [S]ection 5337(h) in their [S]ection 5328(a) best interest
analysis.” Id. at 477-478. We have explained, “several of the relevant
factors of [S]ection 5337(h) are encompassed, directly or implicitly, by the
custody factors listed in [S]ection 5328(a). Any relevant [S]ection 5337(h)
factor that is not expressly encompassed in [S]ection 5328(a) should be
considered by the trial court under the catchall provision of [S]ection
5328(a)(16).” Id. at 478. The Section 5337(h) relocation factors are as
follows.
§ 5337. Relocation.
(h) Relocation factors.--In determining whether to grant a proposed relocation, the court shall consider the following factors, giving weighted consideration to those factors which affect the safety of the child:
(1) The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.
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(3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking or opposing the relocation.
(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 child or an abused party.
(10) Any other factor affecting the best interest of the child.
23 Pa.C.S. § 5337(h).
Here, the trial court recited and reviewed all of the Section 5328(a) best
interest factors and the Section 5337(h) relocation factors in its memorandum
opinion accompanying the subject order. See Trial Court Opinion, 6/11/18,
at 2-18. In its Rule 1925(a) opinion, the trial court addressed Mother’s
asserted errors.
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The trial court explained that it fashioned the subject order, in part, due
to finding,
Father is more likely to permit contact [between the children and Mother] based on the history of this case. . . . Mother has withheld the children a total of four times in violation of court orders: She withheld the children twice for short periods of time when she was in the New York area in 2011; she withheld [N.K.] from approximately November, 2012 until July, 2013; and then she withheld them a fourth time in March and April, 2016, when she did not return the children to Father after Spring Break. Mother had in fact enrolled the children in school in Hawaii in April 2016 and planned to keep them there without agreement.
Trial Court Opinion, 6/11/18, at 2 (footnote omitted).
In her first and second issues on appeal, Mother asserts that the trial
court erred in denying her petition for primary physical and shared legal
custody. Specifically, she asserts that the court abused its discretion by failing
to consider the impact of Father’s 1997 court-martial. We disagree.
Contrary to Mother’s assertion, the court did consider the history of
Father’s court-martial. The court explained as follows in its opinion
accompanying the subject order.
Mother asserts that Father is a rapist and a Federal convicted sex offender. She is incorrect. She bases her assertion on the records of Father’s court-martial in 1997, when he was 27 years old and a Captain in the United States Army.
Father’s testimony regarding the incident that led to his court- martial is that when he was 27, he was drunk and undressed and climbed through the window of the apartment of a female U.S. Army JAG Officer under the mistaken belief that when they had been together earlier in the evening, she indicated that he should come to her apartment. When he climbed into her bed, she woke up, screamed, and he was subsequently arrested and dishonorably discharged from the service.
- 14 - J-S77001-18
Father pled guilty to two charges under the Uniform Code of Military Justice, including unlawful entry into the apartment of another with intent to commit a criminal offense, and wrongfully committing indecent acts with another. He was not convicted of Rape or Sexual Assault. Father’s testimony is consistent with the court-martial record. While we certainly do not condone Father’s behavior, we do not find it significant for this custody dispute. There is no evidence of any other such incident, and Mother knew of this incident prior to her marriage to Father. . . . Mother, who cannot say anything positive about Father, did not indicate any improper behavior on Father’s part with respect to the children. Her mantra is “I am the Mother, he is a rapist, give me the children.”
Trial Court Opinion, 6/11/18, at 14-15 (citations to record omitted) (emphasis
added).
The court found that Mother had improperly characterized Father’s
court-martial record throughout the underlying matter. The court explained:
Mother sent a copy of the court-martial to the children’s school saying that Father was a rapist. She also sent a copy to the children’s therapist stating that the therapist did not protect the children from a rapist. Mother did not consider the impact upon the children of sending these records to the school. Father is not a rapist and he is not a convicted sex offender. He was convicted of wrongfully committing indecent acts with another[,] which falls short of the type of offense Mother claims.
Id. at 15 (citations to record omitted).
Moreover, the court found that Mother has improperly used this
information to alienate P.K. from Father. The court explained:
More troubling is an entry in [P.K.]’s diary from July 27, 2017, when [P.K.] was 15, in which she wrote “[Father] is a rapist. He makes me sick with that. How the f[---] does he have custody of us. I’m absolutely disgusted with him and our justice system.”
- 15 - J-S77001-18
Father had introduced this diary entry as evidence that Mother told [P.K.] that Father was a rapist, even though Mother denied stating that to [P.K.] Mother said that [P.K.] would explain this and another entry exhibit, which clearly indicates that Mother and [P.K.] discussed ahead of time how [P.K.] would respond to the introduction of this entry into evidence.
Incredibly, [P.K.] denied that her Mother told her that her Father was a rapist, even though this has been a constant refrain of Mother. [P.K.]’s testimony is that she somehow realized that Father was either a murderer or a rapist and she decided he was a rapist. This is the most dramatic example of how Mother is turning at least [P.K.] against Father.
Id. at 10-11 (citations to record omitted). Upon careful review of the
testimonial and documentary evidence, we discern no abuse of discretion with
respect to the weight the trial court placed upon Father’s 1997 court-martial
in fashioning its physical and legal custody award.
Next, Mother asserts that the court failed to weigh appropriately Father’s
decision to send the three older children to live with her in Hawaii allegedly by
the end of March of 2014, when he possessed sole legal and physical custody,
and without notice to the children. Mother claims that Father’s conduct in this
regard was “rash” and “reflected instability.” Mother’s brief at 20.
In its opinion accompanying the subject order, the trial court found as
Father has also engaged in questionable conduct involving the children’s custody, albeit to a much lesser extent than Mother. Despite court . . . orders on January 17, 2013 and May 14, 2013 granting him sole legal and physical custody of the children, Father sent the children to Hawaii to live with Mother in two steps: He first sent [F.K.] in July, 2013, and then he sent [P.K.] and [S.K.] to Hawaii on May 31, 2014. Father testified that he had an agreement with Mother that he could come out to visit the
- 16 - J-S77001-18
children, and although he went out three times in June, July, and October of 2014, he had only one real visit in July, and he did not see the children at all on the last visit in October. Father, however, had never asked the Bucks County Court to modify or vacate the Bucks County Order entered in January, 2013, giving him sole legal and physical custody of all four children, despite Mother’s repeated requests that he place in writing his agreement for the children’s move to Hawaii. This complicated the situation and may have led, in part, to Mother’s restriction of Father’s access to the children.
Trial Court Opinion, 6/11/18, at 3-4.
Nevertheless, in its Rule 1925(a) opinion, the court disagreed that
Father’s decision was “rash” and “reflected instability.” Rather, the court
found that his decision “may have been imprudent in hindsight, [but] we
believe it was based upon a consideration of the children’s situation since they
were not seeing their mother at all after she elected to improperly leave the
Pennsylvania area in December, 2012.” Trial Court Opinion, 8/10/18, at 9.
The court explained:
Mother had fled to Hawaii with [N.K., the youngest child] in late 2012[, when she was three years old]. In July 2013, Father sent [F.K.] to live with Mother. He explained that because [F.K.] was sad and missed [N.K.] and his mother, and [N.K.] was alone and “was not going to be returned to Pennsylvania despite my urging,” he felt that it would be appropriate to send [F.K.] to Hawaii “so at least two children will be together.” He observed that the children were “struggling” after their mother returned to Hawaii, and then sent [P.K.] and [S.K.] to Hawaii on May 31, 2014. In her appeal, Mother incorrectly says that [P.K.] and [S.K.] were sent on March 31, 2014. This is not true. They were sent at the end of the school year on May 31, 2014.
- 17 - J-S77001-18
Id. at 8-9 (citations to record omitted). Upon review, we discern no abuse of
discretion with respect to the weight that the court placed on Father’s conduct
in this regard.
Further, Mother asserts that the court abused its discretion in finding
Section 5328(a)(10) in favor of Father, i.e., which party is more likely to
attend to the daily physical, emotional, developmental, educational and
special needs of the child. Mother claims that she has always provided
excellent care for the children. She criticizes Father by baldly asserting that
he is unable to function in a work setting since he is unemployed.6
The court thoroughly addressed Mother’s assertion in its Rule 1925(a)
opinion. In essence, the court disagreed that Mother has always provided
excellent care for the children. Rather, the court found that Mother “does not
encourage the relationship between Father and the children.” Trial Court
Opinion, 8/10/18, at 10. The court concluded, “Mother’s withholding of the
children and her continuing disregard for the court orders entered in this
matter also reveal her inability to understand and provide for the children’s
stability and psychological needs and well-being.” Id. Upon review, we
discern no abuse of discretion by the court. We adopt as our own the court’s
6 The trial court addressed Father’s unemployment in its opinion accompanying the subject order. The court found that he takes medication for anxiety and depression, which “contributes to his not working. . . . However, especially since he usually has help [from his paramour] with his children-rearing duties, we do not find that any mental health issues impair Father’s care of the children.” Trial Court Opinion, 6/11/18, at 14.
- 18 - J-S77001-18
disposition of Mother’s assertion regarding Section 5328(a)(10). See Trial
Court Opinion, 8/10/18, at 9-11.
Finally, Mother disagrees with the trial court that the “primary problem
[in this custody case] is that Mother does not acknowledge that Father has a
role in the children’s lives and she has withheld the child(ren) on at least four
occasions. . . . Father at all times has agreed to arrangements with her to
share . . . custody [of the children].” Id. at 2. Rather, Mother asserts that
the primary problem in this case “is forcing the children to stay with the parent
they do not want to live with.” Mother’s brief at 21.
The trial court explained in its Rule 1925(a) opinion, “Mother’s position
is that the children want to live with her and, therefore, they should. We
disagree. . . . Mother has overemphasized the importance of this factor,
[Section 5328(a)(7),] and she has ignored all of the other custody factors[,]
which are effectively equally weighted or favored Father. As a significant
example, Mother has on several occasions prior to the entry of [the subject
order] improperly withheld the children from Father.” Trial Court Opinion,
8/10/18, at 5.
This Court has explained,
Although the express wishes of a child are not controlling in custody decisions, such wishes do constitute an important factor that must be carefully considered in determining the child’s best interest. The weight to be attributed to a child’s testimony can best be determined by the judge before whom the child appears. The child’s preference must be based upon good reasons and his or her maturity and intelligence must also be considered.
- 19 - J-S77001-18
Ketterer v. Seifert, supra (internal quotations and citations omitted). “The
significance placed on the preference of the child who is at the center of the
custody dispute is similarly within the discretion of the trial judge.” Masser
v. Miller, 913 A.2d 912, 920 (Pa. Super. 2006).
In analyzing the children’s custody preferences, the court credited
Father’s testimony “that when the children are with their Mother, they feel
loved, and they want to see their Mother.” Trial Court Opinion, 6/11/18, at 9
(citations to record omitted). The court found that P.K. has consistently stated
that she wants to live with Mother, but that Mother “is clearly pressuring her.
Mother told [P.K.] that [P.K.] could apply to an exclusive high school in Hawaii.
Mother told [P.K.] not to get on the plane unless it is to Hawaii. Mother said
that she told [P.K.] that Father read [P.K.]’s journal.” Id. (citations to record
omitted). With respect to S.K. and F.K., the court found that their custody
preferences have varied, as follows.
On July 28, 2015, [S.K.] said that while Mother was pressuring him to say he wants to live in Hawaii, he wanted to stay in Doylestown and spend the summer in Hawaii. On February 3, 2017, he said he wanted to live with Mother in Hawaii, and then on May 25, 2018, he cautiously stated that he had no opinion as to a preference. [F.K.] had said that he wanted shared time between Mother and Father, and then on May 25, 2018, he said that he wanted to live with Mother “and have like my dad come in the summer.”
Id. (citations to record omitted). The court found that the youngest child,
N.K., stated on February 3, 2017, “she does not like Mother and does not want
- 20 - J-S77001-18
to talk about it, and then on May 25, 2018, she did not volunteer a
preference.” Id.
The court recognized the children’s conflicting preferences over the
years and between each other. However, the court did not place
determinative weight on their preferences. Significantly, the court weighed
their preferences against, in part, Section 5328(a)(4), the need for stability
and continuity in the child’s education, family life and community life. The
court found that the children have lived with Father continuously since
November of 2014, and that they “lead stable lives in Doylestown. [P.K.] is a
very good student. [S.K.] and [F.K.] are more average[,] and [N.K.] is too
young to evaluate. They attend the local public schools, have friends and
engage in various activities both with friends and with Father.” Trial Court
Opinion, 6/11/18, at 7.
Moreover, the court found that the children are suffering emotionally due
to the custody dispute.7 The court reasonably concluded that the children
need stability and continuity, and that Father can provide it. The court also
recognized that, despite the children’s differing preferences, “separating them
may cause additional trauma.” Id. at 9. Based on our review of the record
7 With respect to P.K., the court emphasized her diary entry of March 22, 2016, “prior to Mother taking the children for spring break, when she wrote, ‘I think this is my last night in this house for a while. I don’t think I’m gonna be able to talk mom outa taking me to Hawaii. Although I hope I can. Please let her be reasonally [sic]. I don’t want to reset again.’” Trial Court Opinion, 6/11/18, at 8 (citation to record omitted).
- 21 - J-S77001-18
evidence, we discern no abuse of discretion by the court in not placing
determinative weight in this case on the children’s preferences.
In her third issue, Mother asserts that the court abused its discretion by
granting her partial physical custody in the Pennsylvania, New Jersey, and/or
New York area from 9:00 a.m. on June 18, 2018, until 8:30 p.m. on July 30,
2018. Specifically, she asserts that she is employed as a nurse in Hawaii, and
it is “unreasonable to expect her to have meaningful partial physical custody
of the children when she is forced to leave her employment for extended
periods of time.” Mother’s brief at 26.
Because the partial custody award that Mother challenges involves a
provision specific to the summer of 2018, we conclude that this issue is moot.
Therefore, we do not consider it. See In re D.A., 801 A.2d 614, 616 (Pa.
Super. 2002) (stating, “An issue before a court is moot if in ruling upon the
issue the court cannot enter an order that has any legal force or effect.”)
(citation omitted).
Even if not moot, we would conclude that Mother’s third issue is without
merit. The trial court explained, “Given Mother’s continuous disobedience and
violation of prior court custody orders, both here and in Hawaii, this provision
was reasonable since Mother is a school nurse who does not go back to work
until August, and she has a place for herself and the children with her [f]ather
in Staten Island.” Trial Court Opinion, 8/10/18, at 13. Upon review, we
conclude that the trial court did not abuse its discretion in this regard.
- 22 - J-S77001-18
In her fourth issue, Mother asserts that the court violated her guarantee
of due process of law under the Fourteenth Amendment to the United States
Constitution on March 31, 2016, when the court allegedly issued the existing
temporary custody order ex parte. Because the subject order replaced the
existing custody order, we conclude that this issue is likewise moot. See In
re D.A., supra.
In her fifth issue, Mother asserts that the court abused its discretion in
finding that she “has some paranoid tendencies in that she believes the court
system in Hawaii and Pennsylvania are biased against her and this is the
reason she doesn’t have custody.” Mother’s brief at 28. The trial court
discussed Mother’s “paranoid tendencies” in its consideration of Section
5328(a)(15), the mental and physical condition of a party. See Trial Court
Opinion, 6/11/18, at 13-14. In its Rule 1925(a) opinion, the court set forth
its factual findings in support of its conclusion that Mother has “paranoid
tendencies,” which the record evidence supports. See Trial Court Opinion,
8/10/18, at 15. The court did not find that Mother has a diagnosed mental or
physical condition, but that she “does not take any responsibility for the
situation in which she finds herself. . . . It is easier for her to blame others.
She stated that her children have been ‘legally kidnapped.’” Trial Court
Opinion, 6/11/18, at 13-14 (citation to record omitted). We discern no abuse
of discretion. Mother’s fifth issue fails.
- 23 - J-S77001-18
In her sixth and final issue, Mother asserts that the trial court abused its
discretion in its assessment of the Section 5337(h) relocation factors. The
trial court thoroughly considered the relocation factors in its opinion
accompanying the subject order. See Trial Court Opinion, 6/11/18, at 16-18.
The court found determinative Section 5328(a)(5), whether there is an
established pattern of conduct of either party to promote or thwart the
relationship of the child and the other party, and Section 5328(a)(8), the
reasons and motivation of each party for seeking or opposing the relocation.
Specifically, the court found that Mother “has an established pattern of
interfering with Father’s relationship with the children. Father wants to share
the children.” Id. at 17. Further, the court found that Mother wants the
children to reside in her primary physical custody in Hawaii “so she will have
the children to herself for the majority if not all of the time.” Id. The record
overwhelmingly supports the court’s findings. As such, we discern no abuse
of discretion in the court’s assessment of the Section 5337(h) factors.
Accordingly, we affirm the custody order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/16/19
- 24 - I at egylgyaft AM
KIIKeivy (5: (Yinirk IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA FAMILY DIVISION
S' K NO. A06 -12-61169-C Rc f
v.
R t L. ; K) IN CUSTODY Rill41 il! min Cam 10012-61149-0237 C 1407877 Main (PutOic) Code 1.44 Judge:34 Rcpt Z2600/65 C/11/2318 t:734 PM MJMORANDUM OPINION AND ORDER
/ On October 5, 2016, 121( K. ("Mother") filed a Petition for Custody of her four
minor children, Pip( , S, K Fib and Ni( , and a Petition to Relocate the children from
Pennsylvania to Hawaii where she lives, R Ki 7 ("Father") opposed the relocation and
in Bucks County, Pennsylvania. A petitioned for primary custody of the children to remain in withholding the Significant issue in this case is Mother's repeated contemptuous behavior
of the children to live and/or children from Father. Complicating the situation is the desire of most
spend a significant amount of time with Mother in Hawaii. After ten (10) days of hearings and a
the many hearings review of the records in Bucks County and the State of Hawaii, including that beginning in 2011, this Court determined that the parents shall have joint legal custody, and We Father shall have primary physical custody and Mother shall have partial physical custody.
offer this Opinion in support of our decision.
Mother (DOB ,) is a Registered Nurse who works in the school system in Hawaii.
She makes approximately $65,000.00 per year. Father (DOB )) is a graduate of Princeton
that he is a University, and has not worked in any significant capacity since 2007. He testified
from his late "stay-at-home dad" and has approximately $40,000.00 to $50,000.00 in income
Mother's estate. Father has a live-in girlfriend, who also has an income of approximately
236. THIS ORDER/JUDGMENT WAS DOCKETED AND SENT ON 06/22/2018 PURSUANT TO PA. R. C. P. Bucks agent. Father and his girlfriend live in Doylestown, insurance $40,000.00 working for an died in 2016. in a house he inherited from his late Mother who County, in and subsequently separated met and married in August, 2000, in Hawaii, The parents from Hawaii with the their separation, Mother flew to Staten Island, New York, June, 2011. After court and Father thereafter began a series of custody Mother children, where her father lived. held in contempt and Pennsylvania. Since the separation, Mother has been proceedings in Hawaii A time table of the and Bucks County Courts for withholding the children. by both the Hawaiian A. In arriving at our events in this custody dispute is attached hereto as Appendix significant and relocation below,' to this dispute, we have addressed the factors both for custody resolution
CUSTODY FACTORS: contact and permit frequent and continuing 1. Which party is more likely to encourage between the child and another party. based on the history of this case. A review of the Father is more likely to permit contact has withheld the children a total of four times in time table (Appendix A) shows that Mother
the children twice for short periods of time when she was violation of court orders: She withheld until July, withheld NiK from approximately November, 2012 in the New York area in 2011; she when she did not return 2013;2 and then she withheld them a fourth time in March and April, 2016, in school in Mother had in fact enrolled the children the children to Father after Spring Break.
Hawaii in April 2016 and planned to keep them there without agreement.
may not issue, it would appear that a consideration of the relocation factors While neither parent has raised the 19, except for approximately one year beginning has lived in Hawaii since she was precisely fit this situation. Mother children she is seeking to relocate to Hawaii. between 2005 and 2009. It is the in June, 2011 and two years tacitly approved of N K t' s move to join Mother and MK in July 2013, in Hawaii, we find Father 2 By sending there as of that date. 2 the children in 2011, the Hawaiian Court issued withholding of As a result of Mother's
physical custody of the three older children? orders granting Father temporary Custody Order in which 8, 2012, Mother and Father agreed to a temporary On November primary custody order which gave Father they agreed to the August 3, 2012 Hawaiian follow the final custody arrangement. to go to mediation to determine physical custody, and they were NK without agreement in by returning to Hawaii with .
Mother sabotaged this agreement
an Order on January 17, 2013, giving Father sole physical and December, 2012. This resulted in
legal custody of all four children. arrangement in which 19, 2015, the parents again reached an agreed custody On October
physical custody for Christmas, spring Father had primary physical custody and Mother had partial
withheld the children in March, 2016, break and most of the summer, When Mother illegally
granting Father sole legal and physical custody of the children another contempt order was issued
Hawaii to gain custody of the children and suspending all of Mother's rights. Father then went to in a pick-up truck, and with the assistance of the police. Mother attempted to flee with the children Mother once again sabotaged PiK fell out of the back of the truck, By her actions and conduct,
resulting once more in the temporary suspension of her an agreed -upon custody settlement,
custody rights.
conduct involving the children's custody, albeit to Father has also engaged in questionable
January 17, 2013 and May 14, a much lesser extent than Mother. Despite court contempt orders on
custody of the children, Father sent the children to 2013 granting him sole legal and physical
He first sent F K in July, 2013, and then he sent PK Hawaii to live with Mother in two steps: t
because both parents moved to the East 'A custody evaluation ordered by the Hawaiian Court was never completed and Mother to Staten Island, New York, However, it contained interviews Coast -Father to Doylestown, Pennsylvania Hawaii. It also referenced court proceedings in with the parents and other relevant people. 3 agreement with Mother that and SSC t to Hawaii on May 31, 2014. Father testified that he had an
times in June, July, and he could come out to visit the children, and although he went out three at all on the last October of 2014, he had only one real visit in July, and he did not see the children
the Bucks County Court to modify or vacate visit in October. Father, however, had never asked
the Bucks County Order entered in January, 2013, giving him sole legal and physical custody of
that he place in writing his agreement for the all four children, despite Mother's repeated requests
and may have led, in part, to Mother's children's move to Hawaii. This complicated the situation
restriction of Father's access to the children.
motion to transfer jurisdiction of the custody case to Hawaii on After Mother filed a
November 14, 2014, Judge lha entered an Order on November 18, 2014, directing that the children
were not to be removed from Hawaii. (See Exhibit M-1 I.) Despite Judge Iha's Order, Father came
to Hawaii 011November 24, 2014, and removed the children from their schools using the authority
granted to him by the January, 2013 Order.4 In response to this obvious violation, Father testified
he had one order that he had two contradictory November 18, 2014 Orders. He claimed that
another preventing the children from leaving the islands which was stamped "Denied," and
handwritten order directing that the children were not to be removed from Hawaii, and so he
therefore chose the order that allowed him to remove the children.
At an ensuing hearing on December I, 2014, Judge Iha ordered Father to return the children
to Hawaii by December 5, 2014. She explained that "what was denied was an ex parte motion to
advance the hearing," and stated, "the children should not have been removed from school. This
was not a planned move. You cannot keep just yanking the children back and forth." (See Exhibits
week, all four children °We have concluded that Father took the children at that time because in approximately one would have been in Hawaii and Hawaii would arguably have jurisdiction over this custody case.
4 2, 2014, M-2 and M2 -A; N.T. 12/1/14, pp. 8, 17.) However, after a follow-up hearing on December
so the children were never returned to Hawaii. jurisdiction was determined to be in Pennsylvania
from contact with Father, Mother has also In addition to physically removing the children
made statements that make clear her view of each parents' role in the children's lives. Father
am the Mother, I should have the children." produced emails in which Mother says in essence "I
(See, e.g., Exhibit F-80.)
the children and the Neither parent has completely permitted free communication between
in Hawaii between 2013 and 2014, other parent. For example, when the children were with Mother that, except for Neasa, the Father asserted that he could not talk to them. Mother responded
has complained that since children had cell phones and Father could call. Mother on the other hand
We believe these November of 2014, she has had maybe five phone communications with Neasa.
communications have recently improved.
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,
Although each parent has made allegations of abuse against the other and alleged that the
other parent abused the children physically, there is no credible evidence of abuse between the
parties and the children. Prior to separating, the parents had attended counseling and Mother only
reported verbal abuse and not physical abuse, (See, e.g, Exhibit F-13; N.T. pp. 37, 132).
At a hearing on October 10, 2012, Father's mother, "Grandmother"),
was granted an 18 month Protection From Abuse ("PFA") order against Mother for two incidents
that occurred in 2011.
The first incident occurred on July 7, 2011, when Mother and children were staying at
wanted to talk to Pik on Grandmother's home in Doylestown. Father was still in Hawaii and the phone to Mother screamed profanities the phone. When the Grandmother went to hand
and pushed Grandmother out of the way to get the phone and prevent PIK r from talking to Father.
Grandmother received a bruise on her chest as a result of the shoving. (See N.T. 10/10/2012, pp.
21-25.)
The next incident occurred on December 16, 2011, when, due to a confusion in the
schedule, both Mother and Grandmother went to pick up S K and Pik from school.
stop sign near the Grandmother had picked the children up in her car and when she stopped at a
school, Mother opened the back door and pulled S out of the car. Grandmother tried to push
the car door closed, but Mother threw her out of the way and she stumbled and hit the ground.
(See N. T. 10/10/2012, pp. 8-12.)
Grandmother had withdrawn without prejudice the original PFA petition she had filed on
July 14, 2011, but refiled another PFA petition on September 27, 2012, based upon both of the
July and December, 2011 incidents, when she thought Mother was moving to Pennsylvania from
Hawaii and Grandmother did not want Mother near her. Grandmother died in the summer of 2016.
There had not been any further abuse allegations past 2011, and for purposes of this Custody Order
this PFA order has limited relevance.
3. The parental duties performed by, each party on behalf of the children.
Mother has performed all traditional parental duties without assistance since separation.
Prior to separation in June, 2011, Mother was the primary caretaker for children. re
Father has not had custody of the children without assistance. When the Hawaiian Court
awarded Father temporary legal and physical custody of the three older children in 2011, Father
moved to Doylestown, Pennsylvania into Grandmother's house where she helped care for the
children until her unexpected death in the summer of 2016. Since February 2014, Father's
6 has lived with Father. They knew each other in high school and began girlfriend. K Mi
committee to plan a high school reunion in March, 2013, Ms. a relationship while attending a
care of the children. Mt , began living with Father in February, 2014, and helps Father take
family life and 4. The need for stability and continuity in the child's education, community life.
The children have lived continuously with Father since November, 2014. They have not
seen their mother very often, in significant part because her custody time with them was suspended
2016. after her behavior and actions in withholding the children in March,
The children lead stable lives in Doylestown. P lc is a very good student. S.); and F.1(
have are more average and N is too young to evaluate. They attend the local public schools,
friends and engage in various activities both with friends and with Father.
Mc_ , the mother of P,k is best friend, t testified on January 29, 2018.
She described PK -'s activities that she has observed as watching movies, lunches, Starbucks,
and school trips. She basically described Pic as a normal teenager and said F K r seems happy.
(See N.T. 1/29/18, pp. 122-155.) We found Ms. M- 's testimony very credible and unbiased.
Neither parent seems to have considered the destabilizing effect upon the children when
the parents have abruptly changed custody: The children have not been told why they suddenly
went from one home to another, When Father suddenly appeared on November 24, 2014, and
removed them from Hawaii, that was a traumatic event. When Mother kept them after the Spring
Break in 2016, and Father came with the police in April 2016 and Mother attempted to flee with
the children in her pickup truck and PIK fell out of the back, that was another traumatic event.
In the CCES report dated June 9, 2015 (Exhibit F-15, p. 24), the evaluator states "the
children all are suffering emotionally as a result of the custody dispute." Significantly, this report
was generated in 2015 before the most traumatic custody change in April, 2016. According to the
7 is the most difficult aspect of CCES Report, PK stated that the uncertainty of the scheduling
242, Exhibit F-15, p. 15.) PK, 's emotional this custody dispute. (See N.T. 9/25/17, pp.
prior to Mother taking the children for exhaustion is evident in her diary entry of March 22, 2016,
in this house for a while. I don't think spring break, when she wrote, "I think this is my last night
Hawaii. Although hope I can. Please let her be I'm gonna be able to talk mom outa taking me to I
reasonally [sic). I don't want to reset again." (Exhibit F92, 5/23/18). to provide that stability. These children need stability and continuity. Father will be able
The children have lived with Father continuously since November, 2014, and should continue to
need to sec both parents primarily live with Father. Even Father, however, has said the children
(MT. 1/31/18, p. 49.)
5. The availability of extended family.
Both of the families of Mother and Father live in the New York, New Jersey and
Pennsylvania area. Both parents have, in the past, taken the children to visit with relatives, in
particular Mother's Father who lives on Staten Island, New York.
There are no relatives of either parent who live in Hawaii.
6. The child's sibling relationships.
The children have been separated from each other for various times since June, 2011, but
they still appear to be reasonably bonded to each other. Even PrK who wants to live with her
Mother has said in her interview in open court on May 25, 2018, that all four children should stay
together.'
that this Court 5 Mother discharged her lawyer in September, 2017, and has been proceeding pro se. She requested children in the courtroom. speak to all four children. Therefore, since Mother Was unrepresented, we interviewed the
The children were comfortable with, or at least accepting of, the arrangement.
8 7. The well -reasoned preference of the child, based on the child's maturity and judgement.
In every custody interview and in her testimony, PE has consistently stated that she
wants to live with Mother and spend summer with Father. (N.T. 7/28/15, p. 134.) Her mother is
clearly pressuring her. Mother told P that PE. could apply to an exclusive high school in
Hawaii (N.T. 9/25/17, p. 372.) Mother told PE not to get on a plane unless it is to Hawaii.
Mother said that she told PE r that Father:read P :'s journal. (Id. at 106.)
The boys' positions have varied. On July 28, 2015, SK said that while Mother was
pressuring him to say he wants to live in Hawaii, he wanted to stay in Doylestown and spend the
summer in Hawaii. (N.T. 7/28/15, pp. 44, 96.) On February 3, 2017, he said he wanted to live
with Mother in Hawaii, and then on May 25, 2018, he cautiously stated that he had no opinion as
to a preference. FK had said that he wahted shared time between Mother and Father, (N.T.
2/13/17, p. 95), and then on May 25, 2018, he said that he wanted to live with Mother "and have
like my dad come in the summer." On FebrUary 2, 2017, NK said she does not like Mother and
does not want to talk about it, and then on May 25, 2018, she did not volunteer a preference.
Father testified that when the children are with their Mother, they feel loved, (N.T. 9/26/17,
p. 98), and that they want to see their Mother (NT. 1/31/18, p. 103).
These children have been through a lot, and separating them may cause additional trauma.
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,
A. Mother has implied that Father would illegally take custody of the children. This,
however, is behavior that Mother has repeatedly exhibited. Mother has, for example, told PE
not to get on an airplane unless it is a Hawaiian plane. (See Exhibit F-35, 9/25/17.) Mother claims let the children that the children are afraid because of the extent that Father went through to not
see her. (See N.T. 8/25/17, p. 349.) negatively Furthermore, there is nothing to support Mother's testimony that Father speaks of Mother. said that Father does not speak negatively to the children about Mother. The children disrespectful Father testified that when the children return from visiting Mother, they are very
These names echo the type of names Mother towards him and call him names such as "loser." that Mother says negative comments to the calls Father in her emails to him. We concluded
children in general.
have a very close relationship. PiK has completely bought into her Mother and PK
PK should be with Mother basically full- Mother's narrative that Father is no good and that
of what Mother tells P K. is the exchange of text messages on August 21, time. An example
2017 in which Mother suggests that P iC should sneak away from Father and meet Mother
tells PK how mean Father is and somewhere to go see the eclipse. In that exchange, Mother
Pr( agrees. (See Exhibit F-36, 9/25/17.)
More troubling is an entry in PK .'s diary from July 27, 2017, when P K was 15, in
which she wrote "RS KE is a rapist. He makes me sick with that. How the fuck does he have
(Exhibit F-106, 5/25/18.) custody of us. I'm absolutely disgusted with him and our justice system."
.Father had introduced this diary entry as evidence that Mother told PK that Father was
a rapist, even though Mother denied stating that to PK Mother said that P K .: would explain
Mother and PtK discussed ahead of this and another entry exhibit, which clearly indicates that
time how Pic would respond to the introduction of this entry into evidence. though Incredibly, PK denied that her Mother told her that her Father was a rapist, even
of Mother, P K is testimony is that she somehow realized that this has been a constant refrain
10 Father was either a murderer or a rapist and she decided he was a rapist. This is the most dramatic
example of how Mother is turning at least PK against Father. (For a discussion of Father's
to insist court-martial in which he pled guilty in 1998 to indecent assault, which Mother continues
was a rape, see custody factor 16 below.)
B. Mother's emails to Father are demeaning and contain accusations as to what Father
is saying about the other parent to the children. For example, Mother wrote on March 16, 2017,
"you truly need to get back on your meds...you need help. Get some," and on March 26, 2017,
"stop making my children hate you, .,Get your head out of your asshole. Send back my kids, give
me some money, buy a sailboat and live on it Ala Wai." (Exhibit F-80.) Mother also asserts that
the children say that Father tells them she is a criminal. (N.T. 8/12/16, p. 38.) The children deny
this.
Father's emails are more factual, and he testified that he looks through PK r's diary to
see if she and Mother have a plan for RK. to go to Hawaii. Father also testified that P.K tells
him that he is a rapist. (N.T. 9/26/17, p. 187.) We find his testimony credible on this issue.
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.
Father is more likely to maintain such a relationship. While we do not think he considered
the impact on the children when he removed them from Hawaii in November, 2014, his behavior
in general has been positive. Mother on the other hand seems to be waging a campaign to have the
children to herself without much, if any, contact with Father, and to that end she has engaged in
behavior damaging to the children as recently as April, 2016. Father has acknowledged the
necessity for Mother to be in the children's lives and is willing to share the children. Mother is not.
11 developmental, 10. Which party is more likely to attend to the daily, physical, emotional, educational and special needs of the child.
Both parties may attend to the physical needs of the children. Mother consistently says she
is a good Mother.° She is not a good mother. Because of Mother's behavior in terms of withholding
the children and in not considering their relationship with their Father, Mother does not
appropriately attend to the emotional or psychological needs of the children.
11. The proximity of the residences of the parties.
Mother lives in Hawaii. Father lives in Doylestown, Pennsylvania. Neither parent is willing
to move to the vicinity of the other parent. At this point, we note that the children have been
established in the Central Bucks School District continuously since November, 2014. We consider
it unreasonable to uproot them again. In addition, Mother does not own any property in Hawaii
and her occupation as a Registered Nurse is transferrable to the East Coast. Mother refuses to
consider such a move.
12. Each party's availability to care for the child or ability to make appropriate child- care arrangements.
Both parents arc available to care for the children or 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.
This is a high conflict custody dispute that has been going on for seven years. While both
sides share some blame, Mother's inability to acknowledge that Father has a significant role in the
Mother also consistently says she is not a criminal, However, on September 28, 2012, she pled nolo contendere under Bucks County Docket No. CP-09-CP-0000928-2012 to Simple Assault, IS Pa.C.S. A. § 270 I (a)( 0, a misdemeanor of the 2" degree, against Grandmother. She has a criminal record.
12 children's lives and her repeated behavior in withholding the children is the principal stress factor
creating conflict.
Until Mother can accept Father's role in the children's lives, the high level of conflict
will continue.
14. The history of drug or alcohol abuse of a party or member of a party's household.
Father asserts that Mother abuses alcohol. There is evidence to support this contention.
Mother had a DUI in the 1990's and two DUI's that were expunged - one in 2013 and one in 2015.
Apparently there was an issue involving the testing machines (N.T. 8/12/16, p. 53.) While legally
Mother had no DUI arrests in 2013 and 2015, it is a possible indication of alcohol abuse. We do
not find, however, that such abuse would prevent her from caring for the children based on the
record we have.
Father has had alcohol issues in the past when he was in college and in the military, but
does not currently present any concerns.
IS. The mental and physical condition of a party or member of a party's household.
There is no evidence that Mother has a diagnosed mental or physical condition. However,
Mother has some paranoid tendencies in that she believes the court systems in Hawaii and
Pennsylvania are biased against her and this is the reason she doesn't have custody.' There is no
evidence that the Courts are biased. It is Mother's views and actions that are the problem.
Mother does not take any responsibility for the situation in which she finds herself. She
apparently has no ability to appreciate that her behavior in withholding the children has limited
7 Judge Rubenstein recused himself when he determined that one of his grandsons was a friend ofNk . (See April 6, 2017 transcript.)
13 her custody. It is easier for her to blame others. She stated that her children have been "legally
kidnapped." (See N.T. 9/26/17, p, 5.)
Mother asserts Father has psychological problems. To some extent she is correct. Father
acknowledges that he currently takes medication for anxiety and depression. He does not work
even though he is now only 48 years old. He has not worked for any significant period of time
since he and Mother returned to Hawaii from Florida in 2007, where they had been for two years,
and.stated that his mother supported the family. When asked why he does not work, Father
explained that the children need him, That was not a satisfactory answer for this Court. In 2007,
the parents were living together and Mother was a stay-at-home mom. Father could easily have
gone to work then, and since all the children are in school, he could certainly work now. We have
concluded that the extent of Father's anxiety and depression contributes to his not working and it
is greater than he states. However, especially since he usually has help with his children-rearing
duties, we do not find that any mental health issues impair Father's care of the children.
16. Any other relevant factors.
Mother asserts that Father is a rapist and a Federal convicted sex offender. She is incorrect.
She bases her assertion on, the records of Father's court-martial in 1997, when he was 27 years old
and a Captain in the United States Army. (See Exhibit M-14, "General Court -Martial Order
Number 9, 24 April 1988." 9/21/17.)
Father's testimony regarding the incident that led to his court-martial is that when he was
27, he was drunk and undressed and climbed through the window of the apartment of a female
U.S. Army JAG Officer under the mistaken belief that when they had been together earlier in the
evening, she indicated that he should come to her apartment. When he climbed into her bed, she
14 dishonorably discharged from the woke up, screamed, and he was subsequently arrested and
service.
Father pled guilty to two charges under the Uniform Code of Military Justice, including
unlawful entry into the apartment of another with intent to commit a criminal offense, and
wrongfully committing indecent acts with another. He was not convicted of Rape or Sexual
Assault. Father's testimony is consistent with the court-martial record. While we certainly do not
There is no condone Father's behavior, we do not find it significant for this custody dispute.
evidence of any other such incident, and Mother knew of this incident prior to her marriage to
8), and most Father. The incident is described in the CCES report (see Exhibit F-15, 9/21/17, p.
importantly, even Mother, who cannot say anything positive about Father, did not indicate any
improper behavior on Father's part with respect to the children. Her mantra is "I am the Mother,
he is a rapist, give me the children."
Mother sent a copy of the court-martial to the children's school saying that Father was a
rapist. (Exhibit F-17, 9/21/17.) She also sent a copy to the children's therapist stating that the
therapist did not protect the children from a rapist. (Exhibit F-18, 9/21/17.) Mother did not consider
the impact upon the children of sending theSe records to the school. Father is not a rapist and he is
not a convicted sex offender. He was convicted of wrongfully committing indecent acts with
another which falls short of the type of offense Mother claims. Father went to the school and
explained the situation. He is still allowed at the school, We also note that the school was familiar
with the parties since Mother had been banned from the school grounds after the December, 2011
incident in which she pushed Grandmother to the ground.
15 RELOCATION FACTORS: case, it is not. In D.K. While both parents have treated this custody dispute as a relocation
of Pennsylvania noted that in v. S,P,K, 102 A.3d 467, 468 (Pa.Super. 2014), the Superior Court
cases
where neither Mother nor Father is relocating and only the children stand to move to a significantly distant location, the relocation provisions of the Child Custody the Act, 23 Pa.C.S.A. § 5337, are not per se triggered.... However, in such cases, trial court shall consider the relevant factors set forth in Section 5337 (h) insofar as they impact the final determination of the best interests of the children."
We will address the relocation factors below, but we note some overlap the custody factors
discussed previously.
1. The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child's life.
The children love their Mother and want to see her as well as their Father. Pig definitely
has a close relationship with her Mother. Mother, however, is pressuring PK to choose Mother
over Father, and it is not a healthy relationship.
The positions of the other children vary.
2. The age, developmental stage, needs of the child and the likely impact the relocation wil have on the child's physical, educational and emotional development, tatting into consideration any special needs of the child,
The children have lived in Hawaii before so they would adjust to relocation. However,
they are settled in Bucks County and there is no good reason to uproot them.
3. The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
The relationship between the children and Father would not be preserved if the children
relocated to Hawaii. 16 maturity of the child. 4. The child's preference, taking into consideration the age and
P K wants to live with her Mother. The preference of the two boys varies. NK at least
in the past, does not want to really see her Mother.
Whether there is an established pattern of conduct of either party to promote or 5, thwart the relationship of the child and the other party.
Mother has an established pattern of interfering with Father's relationship with the
children. Father wants to share the children.
6. Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
This factor is not relevant. Neither parent is relocating.
7. Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
While the children would probably do well in Hawaii as they did in the past, there is nothing
to suggest that such relocation would enhance the general quality of life for the children above and
beyond what they have been provided in Bucks County.
8. The reasons and motivation of each party for seeking or opposing the relocation.
Mother wants the relocation so she will have the children to herself for the majority if not all of the time.
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 child or an abused party.
As we noted under Custody Factor 2 above, although each parent has made allegations of
abuse against the other and alleged that the other parent abused the children physically, there is no
credible evidence of abuse between the parties and the children. Prior to separating, the parents
had attended counseling and Mother only reported verbal abuse and not physical abuse.
17 10. Any other factor affecting the best interest of the child.
None.
CONCLUSION:
We have find that it is in the best interest of all four children that Father should have
primary physical custody of all of the children. The difficulty is determining what partial physical
custody to award Mother given her history of withholding the children and her view of Father's
limited role in the children's lives. This issue is complicated by the distance between the parents.
The best solution would be for Mother to relocate and engage in therapy on the East Coast to
determine why she wants to exclude Father. However, that is unrealistic.
Since June, 2017, whenever Mother has been in Pennsylvania, we have entered interim
Orders giving her unsupervised partial physical custody, We also entered a holiday interim Order.
These interim Orders all specifically state that Mother shall not take the children to Hawaii. Mother
has obeyed these Orders, She also says that she has been punished by not seeing the children from
April 4, 2016 until June 8, 2017, and that she has learned her lesson. We will see.
At the conclusion of testimony in this matter on May 25, 2018, we directed the parties to
submit briefs, including an analysis of the custody and relocation factors, and a proposed form of
custody order. Mother proposed in her custody order that she be given sole legal custody of the
children and that Father be required to come to Hawaii for his partial custody and visitation with
the children. In contrast, Father proposed in his custody order that Mother have significant periods
of partial custody of the children in the summer and a holiday schedule but that all of Mother's
partial custody occur on the East Coast of the continental United States.
After reviewing the parties' respective proposals and considering the history of this case,
we have determined that it is appropriate to adopt Father's recommendation in part and require
18 that Mother's first period of partial custody with the children occur on the East Coast in the
Pennsylvania, New Jersey and/or New York area.
We have further concluded that it is not financially feasible or practical for Mother to
exercise all of her partial physical custody with the children on the East Coast. We are concerned
by Mother's past contemptuous behavior, and the only action that has made an impression upon
Mother is the restriction of her custody of her children. This, however, has had the effect of
harming the children. Therefore, we have attempted to build in a safeguard and will permit Mother
to eventually take the children to Hawaii with the provision that she first attend therapy. We believe
that Mother's cooperation in this process and acceptance of therapy would start to lower the level
of conflict between the parties and benefit the children. This Court cannot, however, control
Mother's behavior, and all we can do is direct her to attend the therapy sessions. We cannot predict
the consequences.
Under our Order, Mother will have partial physical custody of the minor children under an
increasing schedule. Her first period of partial custody will be June 18, 2018 to July 30, 2018, on
the East Coast. This is the time that Father suggested. Furthermore, before she may take the
children for any partial custody time in Hawaii, she shall attend at (east eight (8) therapy sessions
with a licensed Ph.D. psychologist to start to try and understand her destructive behavior in
withholding the children, her interference with Father's relationship with the children and her
inability to acknowledge that Father has a role in the children's lives. If Mother is compliant in
attending these courtordered therapy sessions, then she will be permitted to take the children to
Hawaii for some of her partial physical custody time.
We have excluded Dr. Allman or a friend of his from being the psychologist for the therapy
because in the CCES custody evaluation report Dr. Allman expressed a clear bias in that he
19 "believes that mothers are better for children emotionally than are fathers." (See Exhibit F-15,
9/21/17, p. 18.) This would only reinforce D K 's view and be counter -productive for
counseling.
For the reasons above we enter the attached Custody Order.
align BY THE COURT:
frA ,-ter S g AN DEVL SCO 1/4
I$
20 APPENDIX "A" R ' 8 .1< - v. D, L Bucks County Docket No. A06 -2012-61169-C Time table of significant events
Aug. 8, 2000 Parties many in Hawaii after meeting in 1998
2005 Parties move to Florida
April 2007 Parties return to Hawaii
Hawaiian Court (First Circuit State of Hawaii FC-D No. 11-1--1029)
June 1, 2011 Mother flies to NY (Staten Island- her Father's home); keeps children in New York; subsequently asks to live with B K (Paternal Grandmother) in Doylestown.
June 16, 2011 Father files Complaint in Divorce in Hawaii
July 14, 2011 Grandmother files for PFA in Bucks County against Mother after phone incident in home and police called. Mother not served and hearing continued. Petition withdrawn on 9/14/2011 without prejudice.
Aug. 16, 2011 Ex parte Order: Father awarded temporary sole legal and physical custody of children. Mother ordered to return children to Father in Hawaii immediately.
Aug. 24, 2011 Mother held in contempt. Father is granted temporary sole legal and physical custody of all 4 children. Mother ordered to transfer children at Newark Airport on Friday, August 26, 2011.
Aug. 26, 2011 Father flies to Newark Airport and retrieves children.
Sep. 12, 2011 Order for Pre -Decree Relief awarding custody of children to Father.
Oct. 10, 2011 Mother returns to marital residence in Hawaii but then returns to New York with children several days later. 1 Nov. 3, 2011 Order: Grandmother awarded physical custody of children. Mother ordered to turn custody of children to Grandmother by 11/5/11 at 4:00 pm.
Nov. 10, 2011 Order to enforce custody transfer: Mother found in contempt of Nov. 3, 2011 Order (F-3); Mother refuses to disclose children's location.
Nov. 14, 2011 Father relocates to Doylestown from Hawaii.
Nov. 15, 2011 New York police assist in transferring custody of children from Mother to Grandmother.
Nov. 17, 2011 Custody Hearings - Parties testify and represented by Nov. 22, 2011 counsel.
Dec. 14, 2011 Custody Order: Grandmother awarded temporary physical custody of three eldest children. Mother awarded temporary physical custody of youngest child. Parties have temporary joint legal custody of all four children. Mother has visitation 12/9-11/2011 and 12/23/2011-1/3/2012 and first, second and fourth weekends of each month
Dec. 16, 2011 Physical altercation between Grandmother and Mother in Doylestown as Mother attempts to pick up PK and SK . (Parties had agreed to Mother's non-scheduled visitation with children on 12/16/2011.)
Mother arrested and charged with interference of custody of children, simple assault, disorderly conduct and engaging in fighting.
Dec. 16, 2011 Court issues orders awarding Grandmother temporary custody of youngest child Ne, until further court order.
Dec. 20, 2011 Sua sponte hearing in Hawaii before Judge Catherine Remigio. Parties represented by counsel. Court "finds none of the witnesses entirely credible" but finds Grandmother's version "more credible." 2 after sua sponte Dec. 21, 2011 . Order and findings of fact by Judge Remigio custody of all 4 hearing: Grandmother has temporary sole legal Mother children and physical custody of 3 older children. retains temporary custody of NK Mother's visitation to be supervised by her father A: T Mother not allowed on children's school grounds. (F-4 p. 28) include Another hearing scheduled for 1/26/2012 which will custody evaluation.
Jan. 26, 2012 Hearing on status of custody evaluation report. Rescheduled to 3/29/12 for custody evaluation report. (Final report never issued as Father asserted Pa. jurisdiction.)
Agreed custody schedule: parents have joint legal custody. Father has primary physical custody. Mother has alternate weekends- exchanges at Bridgewater NJ Police Station
July 13,2012 Order by Judge Remigio transferring custody to PA.
Aug, 3, 2012 Court Order after hearing on July 9, 2012 re Father's Motion for Pre -Decree Relief filed May 8, 2012.
Father awarded temporary sole legal and physical custody of 3 oldest children.
Mother has temporary sole legal and physical custody of N If mother returns to mainland, parents alternate weeks in summer until school year when prior academic schedule ordered by court resumes. Mother has weekend schedule.
Bucks County Court (No. A06 -2012-61169-C)
May 30, 2012 Father files for custody in Bucks County.
Sep. 7, 2012 Mother files Petition for sole legal custody of children in New York state court.
Sep. 12, 2012 Bucks County custody conference held and report issued. 3 Sep. 25, 2012 Father files emergency petition for special relief and contempt. (Alleges Mother filed action in NY state and brought children back late to school.)
Sep. 27, 2012 Grandmother re -files Petition for Protection From Abuse (PFA) against Mother as result of Dec. 16, 2011 incident involving custody transfer altercation
Oct. 10, 2012 Judge Clyde Waite grants 18 month PFA order for Grandmother against Mother after hearing (A06 -11-62084-A).
Nov. 8, 2012 Agreed temporary Order Father represented by counsel; Mother pro se Parents agree to follow the Aug. 3, 2012 Hawaiian Order with minor modifications to agreement to go to mediation with custody therapist (did not occur). Custody transfer to occur at Bridgewater NJ Police Station.
Dec. 2012 Mother returns to Hawaii with Nk, without Father's agreement.
Dec. 21, 2012 Father files contempt and request for modification of custody.
Jan, 9, 2013 Father files contempt and petition to modify custody.
Jan. 17, 2013 Contempt hearing - Judge Rubenstein presiding. Both parties represented by counsel, Father present. Order- Mother in contempt; Father given temporary sole legal and physical custody of all 4 children; bench warrant for Mother issued.
Spring 2013 B K travels to Hawaii to attempt to obtain custody of Nk but Mother refuses to turn over child to her.
May 3, 2013 Father files petition for contempt ofJanuaty 17, 2013 Order
May 7, 2013 Contempt hearing (Judge Rubenstein). Father and Grandmother present. Mother represented by counsel. Father to have sole legal and physical custody of all four children. Mother ordered
4 60 days of date of order. to transfer NBC to Father within for Mother. Order issued Bench warrant remains outstanding May 14, 2013. (see Mother's July 19, 2013 Father sends FK to Hawaii by agreement, motion to transfer jurisdiction)
Father sends SK and P K to Hawaii by agreement. May 31, 2014 i
Father and K M visit Mother's home in Hawaii. Oct 7-11, 2014
Mother files Reneived Ex Parte Motion Regarding Immediate Oct. 27, 2014 For Hearing in Temporary Custody and Shortening Time Hawaii. Mother Nov, 12, 2014 Hearing in Hawaii -Judge Sherri Iha presiding. represented by counsel.
Hawaii. Nov. 14, 2014 Mother files Motion to Transfer Jurisdiction to (Problem notice issued by Master -a Rule needs to be issued; motion not filed until 11/25/14.)
Nov. 18, 2014 Judge Iha (Hawaii) issues order after hearing on 11/12/2014 "not to be continuing matter to 12/17/2014 and orders children removed from Island of Oahu pending further Court order."
Nov. 18, 2014- Judge Rubenstein and Judge Iha conference - determine in Hawaii children resided in Hawaii for 6 months; jurisdiction
Nov. 24, 2014 Father travels to Hawaii and removes children back to Pennsylvania.
in Bucks Nov. 25, 2014 Mother files emergency petition to modify custody County.
ex parte Dec. 1, 2014 Hearing in Hawaii before Judge Iha re: Mother's motion for immediate temporary custody and Father's violation of Judge lha's 11/18/2014 Order. directed to Father ordered to return children to Hawaii but then call in at 8:30 next morning for telephone hearing.
Dec. 2, 2014 Judge Rubenstein and Judge Ma hold telephone hearing; parents testify. Decision: children have not resided in Hawaii for at least 6 months as alleged and jurisdiction to remain in
Bucks County. Mother alleges bias by Judge Rubenstein because he is allegedly friends with Grandmother.
Dec. 9, 2014 Mother files petition to confirm relocation and modify custody.
Dec. 16, 2014 Mother files petition for recusal.
Jan. 12, 2015 Hearing before Judge Rubenstein. Mother's motion for recusal withdrawn. Testimony re Mother's Petitions for Custody and Relocation not completed (hearing stopped during cross- examination of Mother; Father had not testified). Parties directed to obtain private custody evaluation. No further hearings until completion of custody evaluation. Custody order of 11/8/2012 to remain in effect. Children not to be removed from Bucks County. Mother may have partial custody in Bucks County.
Jan. 20, 2015 Father files petition for contempt.
Jan. 21, 2015 Father files petition to modify custody.
Feb. 6, 2015 Mother files petition for contempt of 1/12/2015 order.
Feb. 10, 2015 Mother files amended petition for contempt of 1/12/2015 order.
Feb. 11.2015 Mother files petition for contempt of 1/12/2105 order.
April 27, 2015 Order: parties to obtain CCES custody evaluation.
June 9, 2015 CCES report- parties joint legal; father primary physical, mother partial custody.
6 from PIK and S'K .
July 15, 2015 Judge Rubenstein hears testimony to produce records on July 28, 2015 Discovery hearing- Father ordered information on all discharge from military and provide health or sign release for medications he is taking for mental Mother's counsel. with parties and their Oct. 19, 2015 Agreed Order entered after hearing counsel present; Parties have shared legal custody; and Mother partial Father has primary physical custody physical custody; school year and with Children to reside with Father during spring break; Mother during the summer vacation and years; Parties share holidays with odd and even with 30 days written Mother to have additional custody time notice to Father.
bench warrant March 29, 2016 Father files petition for special relief requesting spring break and after Mother fails to bring back children from he determines children are in Hawaii via cell phone app.
into National March 31, 2016 Judge Rubenstein issues Bench Warrant (logged to bring Crime Information Center) for Mother for failure Break on March children back to Pennsylvania at end of Spring 28, 2016.
Sua sponte Order. Father granted sole legal and physical rights are custody of all 4 children and all Mother's custody suspended pursuant to Oct. 19, 2015 agreement.
M April 3, 2016 Father flies to Hawaii with girlfriend
obtained custody of April 6, 2016 Children returned to Pennsylvania- Father the aid of police the children on April 5, 2016, in Hawaii with after altercation with Mother in her pickup truck. but denies April 27, 2016 Judge Rubenstein rescinds the bench warrant temporary Mother's motion for reconsideration of 3/31/2016
7 March 29, 2016 sua sponte custody order. Judge Rubenstein's remained in effect until the Order suspending Mother's custody on June 8, 2017 first hearing before the undersigned
(to reinstate Oct 19, June 6, 2016 Mother files expedited custody petition 2015 custody order). and modify March Aug. 8, 2016 Mother files petition to approve relocation 31, 2016 temporary order. and Relocation. Aug. 12, 2016 Hearing on Mother's Petition for Custody petitions after her refusal Judge Rubenstein dismisses Mother's a DUI arrest in to answer questions on cross concerning is not precluded from September 2013 (no conviction). Mother filing further petitions to modify custody. order - says Order final Aug. 22, 2016 Mother files appeal from Aug. 12, 2016 says Mother as no new hearing scheduled. Judge Rubenstein may refile custody petitions. 12, 2016 order, Aug. 22, 2016 Mother files motion for reconsideration of Aug. to enter an Sep. 14, 2016 Superior Court issues order directing trial court there is no order of court no later than September 19, 2016, as Aug. 12, 2016 order on trial court docket.
Judge Rubenstein enters order granting Mother's request to Sep. 19.2016 transcribe children's notes of testimony and dismissing relocate Mother's petitions to reinstate prior custody order and to Hawaii
March Sep. 22, 2016 Mother files petition to approve relocation and modify 31, 2016 temporary custody order.
due to Judge Mother files motion for recusal alleging conflict Rubenstein's grandson and Nd( in same class. and modification Sep. 27, 2016 Mother files amended petition for relocation of March 31, 2016 custody order. Oct. 5, 2016 Mother files another petition to approve relocation and modify March 31, 2016 custody order.
Oct. 11, 2016 Mother files emergency motion for immediate reinstatement of Mother's custody rights and order for immediate custody.
Nov. 22, 2016 Mother files another motion for recusal.
Dec. 19, 2016 Superior Court quashes Mother's appeal as interlocutory.
Feb. 1, 2017 Mother's motion to recuse denied after hearing.
Feb. 3, 2017 Custody hearing. Judge Rubenstein hears from all 4 Children in camera.
Feb. 16, 2017 Order for custody hearing on 4/6/2017.
Mar. 10, 2017 Mother files petition for contempt of 7/28/15 Order alleging Father failed to "exercise due diligence in obtaining military records,"
April 6, 2017 Judge Rubenstein issues Order recusing himself.
Order signed by Judge Rubenstein scheduling a custody hearing before the undersigned on June 8, 2017 on Mother's petition for custody relocation.
April 11, 2017 Mother files expedited petition for custody.
May 15, 2017 Mother files amended petition for contempt of 7/28/15 discovery order.
June 8, 2017 Hearings before the undersigned have been held on the to date following 10 dates; 6/8, 9/21*, 9/25, 9/26/17, 1/29, 1/30, 1/31, 5/23, 5/24, 5/25/18
On each of those dates, Orders have been entered giving Mother partial physical custody of the minor child when she is present on the East Coast.
9 Father's 4/24/1998 court-martial * Exhibit M-14 introduced at hearing on 9/21/17: of unlawful entry into the apartment order: Father pleaded guilty to Charge 1, and offense (indecent acts upon another); another with intent to commit a criminal acts with another on 6/30/1996, Charge I1, wrongfully committing indecent and discharged from U.S, Army. Sentenced to forfeit all pay and allowances
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