J-S20016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRADLEY RZEPECKI : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JULIE RZEPECKI, NOW, : HETHERINGTON : : No. 147 WDA 2022 Appellant :
Appeal from the Order Entered January 3, 2022 In the Court of Common Pleas of Erie County Civil Division at No. 10228-2015
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY MURRAY, J.: FILED: June 24, 2022
Julie Rzepecki, now, Hetherington (Mother) appeals from the order
granting the request of Bradley Rzepecki (Father), for modification of custody
of the parties’ two children, B.R. (born October 2010) and P.R. (born March
2013) (the Children). After careful consideration, we affirm.
The parties were married in 2009 and divorced in 2015. At the time of
their divorce, the parties agreed to share legal and physical custody of the
Children. See Marital Settlement Agreement, 4/20/15.
Four years later, Mother petitioned to modify custody. Mother alleged
Father “had addiction issues and recently relapsed.” Petition for Modification
of Custody, 4/20/19, at 2. Mother requested the court “grant primary
residential custody of the children to [M]other, with periods of supervised
visitation” with Father. Id. The parties subsequently entered into interim J-S20016-22
consent orders before executing an order which provided, inter alia, that the
Children “reside with [M]other, except that [F]ather shall have visitation”
every other weekend, supervised by Children’s paternal grandparents.1
Order, 8/7/19, at 1.
On March 22, 2021, Father filed a motion to modify the August 7, 2019
order, averring “it is in the best interest of the [C]hildren that the Custody
Order be modified to provide for equal physical custody.” Motion for
Modification of Custody Consent Order, 3/22/21. On April 19, 2021, Mother
filed preliminary objections challenging the court’s jurisdiction.2 Father filed
a response in opposition. The trial court heard argument and thereafter
entered an order finding the court had jurisdiction and denying Mother’s
preliminary objections. Order, 7/6/21. Mother did not appeal.
The case was scheduled for trial in September 2021, but the parties
cancelled after reaching a tentative agreement. They were unable to reach a
final agreement, however, and the case proceeded to trial in December 2021.
The court explained:
[I]t is Father’s position that, although he is to blame for the past few years’ disruption in his custodial relationship with the children, ____________________________________________
1 By the time Father remarried in July 2020, “the custody supervision requirements were lifted by mutual agreement.” Trial Court Opinion, 1/3/22, at 2.
2 In 2017, Father consented to Mother relocating with the Children to Clymer, New York. Although Mother continued to submit to Pennsylvania’s jurisdiction through 2019, she claimed New York was the Children’s home state, and Pennsylvania no longer had “exclusive, continuing jurisdiction[.]” Preliminary Objections, 4/19/21, at 3.
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he is now rehabilitated and it is in the children’s best interests to return to a more balanced custody arrangement where both parents share equal importance in their children’s lives.
Mother is remarried and lives on a farm in Clymer, New York. She testified that she’s been primarily responsible for raising the children for most of their lives. Father’s drug and alcohol problems plagued their marriage and were a primary cause of its dissolution.
She admitted to unilaterally moving the children to homeschooling.
Trial Court Opinion, 1/3/22, at 4.
On January 3, 2022, the court issued an order and accompanying
opinion addressing the enumerated custody factors set forth in the Child
Custody Act at 23 Pa.C.S.A. § 5328(a). According to Mother, the court
granted Father “additional time with the [C]hildren and for the [C]hildren to
attend public school instead of homeschooling.” Mother’s Brief at 7. Mother
filed a timely request for reconsideration. The trial court denied the request
and Mother timely appealed. Both Mother and the trial court have complied
with Pennsylvania Rule of Appellate Procedure 1925.3
Mother presents the following issues for review:
I. Whether the Trial Court committed an error of law and/or abused its discretion in finding [Father’s] testimony was credible considering the testimony and evidence presented at Trial? ____________________________________________
3 The trial court “observe[d] that the Concise Statement is not particularly concise.” Trial Court Opinion, 3/9/22, at 2. The court also stated, “to the extent [Mother] raises an issue on appeal that is not addressed in this 1925(a) Opinion, the same should be deemed waived for failure to identify the same in the Concise Statement.” Id.
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II. Whether the Trial Court committed an error of law and/or abused its discretion in finding that the best interest of the [C]hildren would be served by granting [Father] additional custody time considering the testimony and evidence presented at trial?
III. Whether the Trial Court committed an error of law and/or abused its discretion in disregarding the testimony of [Mother] and [C]hildren’s wishes to remain in home school and finding it to be in [C]hildren’s best interest to matriculate in Clymer Public School in the middle of the school year?
IV. Whether the Trial Court committed an error of law and/or abused its discretion in disregarding the testimony and evidence presented at trial and modified the current Order for the best interest of the [C]hildren by removing the necessity of [F]ather to engage in random drug and alcohol testing?
Mother’s Brief at 4-5.
In reviewing Mother’s issues, we recognize
the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. ... However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination[.] ... Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.
Moreover,
on issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.
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The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court’s consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.
The test is whether the evidence of record supports the trial court’s conclusions.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citations omitted).
In addition, it “is not this Court’s function to determine whether the trial
court reached the ‘right’ decision; rather, we must consider whether, ‘based
on the evidence presented, [giving] due deference to the trial court’s weight
and credibility determinations,’ the trial court erred or abused its
discretion[.]” King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (citation
omitted). 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).
In all four issues, Mother argues the trial court erred because its
decisions (finding Father credible, granting Father additional time with
Children, requiring Children to attend public school, and declining to impose
random drug and alcohol testing upon Father), “have not been substantiated
by the evidence and testimony presented at trial.” Mother’s Brief at 11. We
disagree.
When deciding a petition to modify custody, a court must conduct a
thorough analysis of the best interests of the child based on the
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relevant Section 5328(a) factors. See E.D. v. M.P., 33 A.3d 73, 80 (Pa.
Super. 2011). It is well-settled that “the best interest of the child is
paramount.” See B.S.G. v. D.M.C., 255 A.3d 528, 536 (Pa. Super. 2021)
(citation omitted). “The courts of this Commonwealth have consistently held
that the ultimate consideration in custody matters is to determine that which
is in the best interests of the child and that such determinations must be made
on a case-by-case basis.” Myers v. DiDomenico, 657 A.2d 956, 957 (Pa.
Super. 1995).
Instantly, four individuals testified at trial: Mother, Father, and the two
Children. The Children were 11 and 8 years old at the time, and testified “in
chambers with counsel present.” See Trial Court Opinion, 1/3/22, at 2. In
the opinion accompanying its order, the trial court summarized the testimony
of Mother, Father and the Children, concluding that “based on the testimony
and other evidence presented at trial, Father’s Petition will be granted in part.”
Id. at 6. The court summarized the “facts adduced at trial . . . in conjunction
with the relevant custody factors set forth at 23 Pa.C.S.A. § 5328(a), keeping
in mind that the [c]ourt’s paramount concern in child custody cases is the best
interests and safety of the children.” Id. (citation omitted).
In its Rule 1925(a) opinion, the trial court expanded upon the reasoning
set forth in its opinion accompanying the modification order. See Trial Court
Opinion, 3/9/22. The Honorable Joseph M. Walsh, III, sitting as the trial court,
cited the record and statutory custody factors supporting the order. Id. After
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careful consideration, we discern no abuse of discretion. The record supports
President Judge Walsh’s comprehensive best interest analysis pursuant to
Sections 5328 (factors to consider when awarding custody) and 5338
(modification of existing order). As President Judge Walsh has authored a
thorough and well-reasoned opinion addressing Mother’s issues, we
adopt the March 9, 2022 opinion as our own and affirm the custody order on
that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/24/2022
-7- Circulated 06/16/2022 09:57 AM
BRADLEY RZEPECKI, IN THE COURT OF COMMON PLEAS:
'Plainfiff OF ERIE COUNTY;PENNSY ?N) -[; f .i
ors. RA- Y DIVISION — CUSTIDDY
JULIE RZEPECKI, now; . HETHERINGTON, Defendant NO, 14228-2415
A225Sa) OPMON (Date: ch 9`2422
L: PROCEDURAL' POSTURE
An adversarial hearing•(also referred to as "custody trial ). was held on December 21,
:2D2i on Plaintiff-father, Bradley Rzepecki's ("Appellee'-'] petition for custody.modifleation.
.Both parties were present.and represented by counsel: The children, B.R. (age 1I) and P.R..(age
8), were not present in open court but testified in chambers with counsel present.
Thereafter, the. trial court entered its. custody order and opinion swnmari zin9.its
consideration of ttie custody factors set forth at 23 Pa.C.S.A. §532$(6) CExplanatory Opinion")
on January 3, 2022: Defendant: mother,'Julie RzepeCK now Julie Hetherington ("Appellant"
filed amotion for reconsideration on January .2022, which was denied_ . Appellant filed her
timely Notice of Appeal and Concise Statement of Errors Pursuant W PaILA„ P, 1925(5)
O'poneise Statement") on February 1, 2421.
11 E3.tRORS COMPLAINED OF•ON APPEAL.
Section B of Appellant's 2U paragraph Concise Statement sets for the following errors
complained. of on appeal,
25. The jCourt committed an abuse of discretion and/or error of law when it concluded that the;Appell[ee)'s testirnoziy at trial was credible regarding his substance abuse, that additional time with the Appellee was in the childrerx's best interest aaxid: hat changing the children from the home school setting they had
1 A-1 enjoyed to Clymer public school during apandemic, was in their hest interest The Court based its. decision on Title 23 Pa. C.S.A. §5328(a). and Appellant is asserting that errors are specifically in regards * to 5328(aX3)(4)(7)(14)(12), and (.14). Appellant. is asserting an abuse of discretion and/or error of law to the provisions of the child custody statute outlined above in the Order and Opinion issued by.ihe Court,
26, 'Me issue as to 23 Pa. C.S.A. §5328(x); it is asserted that the Court did not consider the impact o£ changing the children's school during the school year and how' this would iunpact theiz health and social =Aronment. The Court. did not consider that the increase in time with the Appellee would be detrimental to the children's lifestyle and daily activities. The Court did not consider the children's well-reasoned preference although they were described as bright, well-mannered children:
(Concise Statement, 125). Preliminarily, the trial court observes that the Concise Statement is
not . particularly concise. Nevertheless, in the interest of facilitating appellate review, and
because the trial court's Explanatory. Opinion was prepared without the benefit of .the transcribed
record ;the court will expand on the findings and conclusions most important faits decision:
However, to the extent Appellant raises an issue on appeal. that is not addressed in this 1925(a)
Opinion, .the same should be deemed waived for failure to identify the same in the Concise
Statement.
III. CUSTODY FACTORS ANALYSIS UNDER TFIE CHILD CUSTODY - ACT, 23 PA.C.S.A. §5328(a)
A. §5328(a)M Party more likely to':encourage and. permit frequent and continuing contact between. child and another party
There were two areas of inquiry particularly relevant here: One involved Appellee's
adm itted substance abuse history, the other the children' s custodial preferences. Both were used
iAPpellant's Concise Statement tray aver error in connwtion . only some of the custody factors, 0), (12) and ( 14)• However, review of only some: factors would specifically 5328(a)(3),:(4), (7), ( l produce. an incomplete review of the cas e. as,. a. Whole.-All of the factcns were: integral to the coiut sfinal decision, so all are addressed herein, at least briefly, for . appellate' review.
2 A-2 by Appellant to oppose Appellee's efforts to have more frequent custodial time vhth the children,
so bath are relevant here.
1. Appellee's substance abuse history
Appellee admitted. engaging in substance abuse on least two occasions i dthe pas4bace
involving prescription drugs. "over ten years ago," and once more recently. in or about 2019
involving alcohol. (Ti; 2i1-22, 23, 4G-47). The 2019 episode was the catalyst for the parties'
current custody dispute 'in. two respects. First, it.was the reason Appel voluntarily
relinquished equal shared custody after having enjoyed the same since the parties separated in
2015. (T . 13,`20-21). Second; Appellant continues to hold the episode. against Appellee by
insisting he aontinues to abuse ft.gs andlor alcohol. (Tr. 9, 77)3
All ofthe parties.' custody orders during the relevant time period . were entered by mutual
consent and all* required the parties to refrain from using illegal drugs or alcohol " in the presence
of the children." (Exs..2; 3; and 4). They also required.some fotra of periodic.drug and alcohol
.testing for,Appellee. {Id.). 4 The order Appellee sought.to modify in these proceedings, dated
August 6, 2 19, required "hair follicle testing" every six.months. (Ex.A, ¶ Z(i)). There was no
testimony as, to why the parties agreed to hair follicle testing. To the court's. Imowledge, the
p.. The court's specific findings against Appetlee:under. the custody factors are not covered in depth in. this .1.925(a) Opinion, as Appellee did not &le across-appeal.
a. There was no professional testimony describmi g,Appellee's substance abuse condition The term "substance abuse" *as used herein is not intended to infer any particular clinical diagnosis in connection with:Appellee's substance use or abuse.
'Because the orders' drug and alcohol use and testing provisions came about by mutual agreement, the trial court did not infer they were necessarily indicative of the severity of Appellee's condition. It -is not uncommon for parents to agree to drug and alcohol restrictions and testing requireaieats in order to :reassure the other parent, whether they deem'it strictly necessary or nOt:
3 .results could have no bearing on the particulars ofwhen or where appro4ibite. d. substance was
used; apositive hair follicle test would not prove. Appellee violated the custody order by using
around the children.
This was problematic at trial (and mi appeal)because much ofAppellani'scase revolved
around supposed adtnissians_Appellee made to using alcohol in 2020, but then recanted.at trial.
She believes. Appellee lied.at trial and the trial curt overlooked it.. (Concise Statement %6-10,
45). Appellant' sevidence consisted of two documents signed by Appellee, one in January of
2020 and one in May of 2020 (Exs. C and D). Both were prepared by Appellant and contained
Attestations' 6y Appellee : that had taken adrug/alcohol best at the time of signing,he would have
failed. 'Y'et at trial he insisted he has been sober for at least two years. (Tr. 48).
Appellee explained at trial that he signed the documents to avoid the expense of drug.
testing.In his wards,Appellant " strong- armed" him, and he signed them to "get her off my
back' because she "would threaten to never let we see the.kids again." (Tr- 50-51).
Though the court did . find Appellee "sexplanation truthful, if not wise, the issue of the:
2020 "admissions" was largely adistraction from.thd•actual issue before the court -whether
Appellee ever put the children at risk of harm or neglect due to substance abuse.The answer to
this issue was: clearly "no s5
:Appellant off6 d:no evidence, not even her own testimony, that the children were ever
put at risk of harm or neglect due to Appellee' salleged stance use.Ip ;i°act,when Appellant
testified at length about the. episode involving prescription drugs several years ago, which.
occurred when they were still married, she. said she had no clue he... was `he,was taking therti.
sThe. same 'applies to part W dispute over a.hair follicle test allegedly showing alcohol use.inFebruary of 2021. Appellee coidtested.:the test methodology, and the results were never offered into..Cvidence. (Tr, 25-26). However,. again,regardless of the test results, Appellant offered no evidence to cunnect.the. alleged alcohol consuMption to any risk of harm: to, or neglect of, the ehildren.
4 A-4 (Tr-75). And ;despite her testimony that Appellee's substance. abase "spiraled" through the.
dissolution of their marriage, she a"tted agreeing. to equal shared custody as part of their
marital settlement, with no restrictions on drug or alcohol use. (Tr. 76, Ex. 1). She also admitted
that since 2019 she has not been*sdffuciently concerned about Appellee's alleged substanice use to
seek relief from the court or additional.protections`for the children. (Tr. Il). When pressed.by
the court for details about her knowledge of Appellee's ongoing substance use;she. changed the
subject (Tr. 77). Further, her claim that Appellee is' still using and hiding it is•inexplicably at
odds Vith his experience in 20 19, when: all appear to -agree he .voluntarily disclosed his alcohol
problem and asked Appellant to take primary custody.
Finally, there were no other indicia of chronic substance. Appellee: has no crimmi al.
record, no.DDT's; there is no history of job loss: In fact, his employer appeared at trial to affirm
what ahardworking and reliable employee Appellee is,...(TF. 71).
Over the course of the one day trial, it became increasingly apparentto the court that
Appellant was using Appellee's past history of substance abuse to legitimize her refusal to
encourage frequent and continuing contw between the . children-and Appellee; Which fact ored
against her as discussed below in connection with the decision to increase -Appellee's custodial.
time and return the children. to Public school.
2. Appellant' sReliance an the Chtldren' s.Prefereu0s.
Appellant's testimony at trial revealed that. she tends to ally with ,the children. against the
Appellee, using the children's alleged preferences as an excuse to undermine Appellee's parental.
role.
For example, regarding an episode where Appellant.refused to allow the children to go on
acamping trip with the paternal grandparent s,after having previously agreed. they could go ,
5 Appellant admitted her reversal canoe after Appellee. filed his modification.petition, but added
that the children did not want:to go anyway:
A. Yes.. She did reach out to me. But; again, it was right before the previous court arrangement. And 'I did say that Ithink that. it would be best'if she had seen. the kids on Brad's time. And not only for that, but because the kids had aplay date already arranged. They had. alot of things they thewere going to be doing. And Iasked them if they wanted to go camping, and they wanted to go with their friends.
(Tr..91). Other examples include:
Q. [ ]: 1get the sense.-that you object to [Appellant] spending more time with his children; is that correct? A. Iwouldn't say that Iobject to: him having any more time with the children. I would say that, umm, if the children felt;a .little bit more comfortable in the home that they have with their father, then Iwould be more inclined to let the children - -Ishouldn`t say let the. children -- 1wouldn`t feel the way that Ido, ( Tr. 9). would you* like to see .(B.R.] play soccer? ...Where .
A. He wanted to go out to the Olympic soccer in Buffalo. ( Tr. 86).
Q.. Woes :Erie Ofer asimilar program? A, : , . ldid tell [Appellee] that [BR] needed to have time to discuss it and thinly about it .: (Tr- 86-87). Q. Have you had .any issues with. Appellee enrolling the child in* any extra curricular activities without your knorkiedge or your consent? A. Yes...: [B:R] came home and asked me to say something to his father. So, I did:.. (Tr: $S). Q. Okay. Do you guys agree. that [ the AWAAIA club] is a. good program? Or do you -- does dad have :sorme reservations about that program? A. Idon't know, becauspTnever --. I'm going to be honest -- Inever asked dad. Because it. was on the times that Ihad the lads, and the kids wanted to go really bad ...(Tr..89) Q. What would be the issue if dad were to have more time .in the summer with the children? What would be your complaint: about that? A. Ithink the only issue would be is%that the kids wouldn`t he able to see their friends. And'they feel Me they can't see their friends now becauselhis trial basis. _- he always had something planned: for the weekends that:they had them: (Tr. 89-90),
6 Q. The 2019 Order that's in effect right now, ... w]hy is that in the children's: best interest:at this time? A. Because it's what the children want... (Th -94).. In its entirety, Appellant's testimony lacked the balance one would expect f rn.a parent
truly concerned about encouraging arelationship with the other parent. Never once did
Appellant relate an episode where the children were appreciative afAppellse, or enjoyed being
with him.. Her complaint on behalf of the* children that he "always.had something planned" on
his weekends was out of place.- why would Ize not: have plans? It revealed that she, as much or
more than the children, viewed.Appellee's bustodial time as* an inconvenience or impediment to
the cbildreii% true happiness. She gave no examples.of the. children actually missing an
important activity because Appellee was :infleicible h hisplans.
I. Weight Ascribed to Custody Factor 5328(a)1) The trial. court concluded thatAppellant. was—not encouraging contact between children
and Appellee, and not fostering apositive view of Appellee in the children, ano that'her failures,
whether intentional pr.not,.were lindenmining Appellees relationship with the children. This
played an important role in formulating the provisions of the custody order pi0ently on appeal.
B. §5328(a)(2) and (21) Present and past abuse commit ted by gpg . or .member of the partylihousehold lConsideration 3of child abuse and
involvement with protective services
There was no eviden6c of abuse committed by either party or amember of their
household. This factor was considered to the extent that, whatever the nature of Appellee's past
substance abuse; it did not manifest in abusive behavior. toward Appellant or the children.
C. §5328(a)(3) parental. duties performed by eneli party
There is nothing to add to 'the Explanatory OP. 0 under this factor.: an
about specific behaviors of Appellee, including ignoring alleged food allergies and
objecting to hornescbooling,.are considered under more - applicable factors . below..
7 .D, §5328( x)(4) Need for stability and'contiinulty in;the child' seducation,fpm y life and community life
Two primary issues were considered under this factor: -The choice of homeschool versus
public school, and whether transitioning to' equal physical custody; especially during the school-
year, would be in the. children's, best interests, and not unduly disruptive to their established
routines.
L Homesehool vs. Public School
Appellee. testified that when the parties were together; they lived in the Iroquois School
District in Erie County, Pennsylvania (Tr; 29 ). The:. children remained in the Iroquois School
District when the parties separated in 2015, and Appellant moved. to. the Clymer, New York area.
(Tr. 3D). 'VVhezt Appellee lapsed into alcohol abuse in 2019 and. Appellant took primary custody,
Appellee agreed to move the children.to the Clymer public schM system: ( d:}. They attended
therefor ayear, until Covid-l9 hitin early.2020 and the parties agreed Appellant would
homeschool for the .balance of the year. {Id).. Thereafter,.Appeltant elected to continue
homeschooling into the 2421-2422 school-year without conferring with Appellee. Appellee
credibly testified: "When COVID started, they did alot'of remote learning. And her and .I.
agreed for that-one year that.they could be homeschooled. When it came time to start school this
yeari.she •ivuld:nothave any.Gonversation;.would not acknowled ge a. request to discuss it: And
just kept saying, ifs for lawyers.to decide. And continued to homeschooi them. •d.)•
Appellant.did not deny Appellees account of events. She agreed the children were doing .
well in Clymer public school prior to the pandemic (Tr. 3 5, 78)3 but she asserted:they were better
off in homeschooling and they liked. it better: (Tr. 78-80).: She testified that the children. were so
distraught over "Appellee wanting there to be in apublic school" that she. took. them to a
A-8 therapist. ( Tr..85):, aShe averred1hat both children were bulli diA public school, and P.R. has
dyslexia and difficulties. related t6short attention span: (Tr. 79-89).
The court questioned Appellant and the children carefully about their bullying allegations
and.deteimined .they were exaggerating the incidents to dissuade the court from Warning the
children fo public schboL (Tr. 96 loop 113415). They described repeated incidents of
assaultive behavior occurring in the presence Of. Other parents and teachers inexplicably with no.
repercussions `to the offenders or meiltion of injury to the alleged victims. ( id:). The testimony
simply did not ring true.
Regarding P:R.'s special needs, (dyslexia and "ADW' (Tr. 78)), Appellant appears to
have arrived at those: diagnoses on her own (no clinical op i nions were produced), and selected:
:bom6school curriculum deemed by her to: adequately accommodate`P.R.'s special needs
justifiably or not (it . is impossible to tell on the scant record), Appellant used P.R:'s dyslexia as
the reason she unilaterally abandoned curriculum carefutY. selected with Appellee's agreement
(Abeka), in favor. of one chosen exclusively by her which necessitates weekly visits to atutor
who.tells Appellant.how or what to teach P-R.. (Tx. 78-7g).
Appellee. objected to homeschooling: for all. of the treasons one would expect. Appellant: is. not accountable for their progress; she is not atrained teacher; if P.R. has special needs ;
.Appellant is not: equipped to provide educational support 'and Appellant is able to manipulate the
homeschool environment. so: the children prefer it regardless of whether they are learning at an
appropriaite pace.. (Tr. 30-3.1, 53-5d).
6 Appellant's testimony that sbe enrolled the children in therapy because they were having difficulty. corruaauiiicating.with Appellee about l borne schooli ngand:other nonspecific issues was inisleading. The ,MIdien.testified that:they have been in therapy off and. on for years ;.most receutlyfor the past three years. (Tr. 123-124).
A-9 9 In the end, -neither party. provided. acompelling case for or against horneschooling from
the perspective of whether it would provide the children with..an education significantly better or
worse than public school. Instead,it was theunilateral nature vfA.ppellant's decision that
persuaded the trial court to return the children to .public.school. By refusing to aclmowledge
Appellee's. dissention in advance, and by acting as :though the decision was hers alone to make,
Appellant blatantly set the stage for. an " tin against hid lispil over scbooling:. She made
herself the children's champion audpositioned Appellee as the one solely responsible for
threatening their . happiness.. This is the sanie undermining and manipulative behavior the court
observed multiple times under factor 53a8(a)(l) and the court is of the firm opinion that it is not
in the children's best interests. to see it succeed, even if the decision would cause some temporary
disappointment.
x, Equal Shared .Custody During the School Year.
`The court did not grant Appellee's petitiou for equal shared custody during the school
Year largely because it' granted his request to. return to the children to.public school. Recognizing
the school change could necess itat e time for adjustment; the court did not find"it in the children's
ntial stress by simultaneously changing their living arrangem ent s: best interests t4 add to the pote N everthel ess,Appellant argues that it..was error for the court.to adopt the custody
schedule agreed to by the parties in the fall of 2021 .7which chaaged Appellee's. every other
` Monday weekend from Friday. to Sunday, to every three outof four weekends from Friday
Appellant essentially gave three reasons :for her objection to the new schedule, (1) Appellee
i gnores purported food allergies, so the children come home sick, (2) the.new schedule .infringes
the 7 The pardes ' convened for atrial,or perhaps asettlement•c•o•t • H•fer•s appears the• s••went fell Trucilta in September of 2021 and reached atentative agr the du on custody . through.. (See 10/18/21 Order) .Regardless,the pames have bees following p schedule ever since.
10 on time the children would otherwise have.to play-with their friends, and (3) thechildren do not
want to - spend more time with Appellee.-
a. Food Allergies
Appellant.testified:
Q. leas your child, [P.R.], -been. diagnosed with any food allergies, to your knowledge? A. She hasn't been diagnased'with any. But she. does come home and say that, at her dad's'house, she doesn't have any gluten-free optigns,'or lactose-free options. And when she'll eat -- she's too afraid to. tell hiim.this. But when she does eat, she throws it up in her mouth and then swallows it. - And she comes home with rashes Tr. 91 -g2)i all the time. (
Q. The 2019 Order that`s in effect right now, is that the Orrder you want to maintain?
A. Yes. Q. Okay. -Why is:that in.the children's best interest at this time? A. When they started this Order, and it was. Friday to Monday. Every Moon day, they would come home and they would be: sick.. And.we were. grateful that they would give them bre0fa9firi the morning. But they .would come home, and they'd be sa sick that they'd throw it up every Monday. So, they stopped eating, 'Well ;at least Ilmaw [BIJ did, because [B:P...] told me; urmm, that he shopped eating it. And then [P.R.] will comes home, and she has hives all aver her mouth. And she. doesn`t feel good. And she told me the. last time: that she canoe home that she had French toast. -So, this time 1— Ididn't ask her..So. --(Tr. 94):
The trial court did not Iind. Appellant's assertions regarding food allergies credible for
several reasons: The most obvious reason was that she provided no. explanation for. why the
children didn't have the same problems tinder the prior custody schedule, when presumably they
ate'in Appellee's home on Fridays, Saturdays and Sundays, further it appears. she to no protective
action Her failure to act in.the face of alleged. sickness so severe-Ake children were #owingup;
.gettizag.hives, and refusing to eat on aregular basis, lent credibility to Appellee's testimony that.
he feeds the children food. they like with no adverse consequences. *(Tr. 57). Importantly, the
11 A-u children, who were nat shy in criticizing life in Appellee's. home, made. no mention of any issue.
:pertaining to €nod:
h. Time withYriends
Appellant's concern over disruption of the children's social networks.was given little
weight,. primarily because it.was not fact based.. Appellant retained primary custody during the
school-year. She is free to arrange play dates with their homescho©1 friends during the week. and
on her weekends. She can take them to their AWANA club meetings and other activities during .
the. week.. Further, there appears to be nvthing.preventing the children from inviting their friends
to Appellee's house. on weekends,:or during the week in summeis, for play dates (aconstrictive
idea that.should naturally occur to aparent looking to solve problems, rather than create them)..
in-sum:, the benefit the children will gain from spending more time with Appellee fare outweighs
the minor disruption in their social life;
c. The Children's Preferences
Appellant's reliance on the children's preferences under this custody factor. is wrong for
'all of the reasons discussed under the previaus factors. In addition, A.ppellant's'capacity to state.
at trial and in her Concise Statement thaf the children do not want to spend more time with their
father, therefore, theyshould.not have to ;. is deeply troubling under the facts of this ease. There
is no indication Appellant is concerned with remedying `the alleged estrangement. She has the
children in therapy to .talk about the problems she blames on. Appellee, but admits he was never
encouraged, or even invited, to participate.; ('Tr.85 86). She:expressed no regret over the
strained relationship, nor does it appear she has any intention to work to resolve it. Under the
facts of this case, it is imperative to the best interests of the children that the court intervene
.12 where Appellant will .not,to assure that Appellee has sufficient time with the children to
strengthen and maintain his parental bond. With them.
.E. §5328( a)(S) and ()(6) Availabliity of extende. famiily.'and children' ssibling. relationships
The facts adduced at trial. did not require in depth consideration under fib's factor. There
was no. indication the court's award of custody would have any. significant impact on the.
cbuildren's relationships with extended family or each other.
G. §5325( a)(7) Well-reasoned preference of child,based on child' smaturity and judgment
Considering the parents! dynamics in this case, in particular Appellant's strong tendency
to align herself with the childreia i nopposition to Appellee,the court was not. surprised to hear
the children's stated preferences to live primarily with Appellant and remain in.homeschooling.
Thus, the court's questioning focused on whether there. were reasons for thtrse preferences
beyond mere assimilation of Appellant's influence.
1. Preference to Remain in Appellant' sPrimary Custody.
The children's testimony about Appellee was delivered like. apunch list of complaints,
,rather than. an expression of physical or emotional neglect, or fear of Appellee. .. They did not
appear troubled by Appelae's actions,. merely eager to give reasons for the outcome they
desired. Their testimony was considered in its entirety,. but the follovvin$ are some examples of
theucotnplaints:
'THE CC[TRT: ... yV]ltat did your mom tell you about today? Whatwas going to. happen? She just said we're going to go to cotiit. THE COURT: Did you say; what for? Why. do Ihave to go? 9.R.: Ujnm, she .said it's for custody. P.R..,And we don't really want to be. `'With our dad as much.:
13. THE COURT: You do not want to be with your dad as much? P.R.. Huh-uh. S.R.: He plays video games all day most of the time- P.R.: Yeah. He doesn't really spend time with us: B.R.: And theh be *gets mad at the vided games. P.R.s Aild he swea+rs. ,So, we usually play with the cats, or we play with our dog. B.R.: Or ga in`the basernem and. play soccer. ( Tr. 1.19-120).
THE COURT: ... Does [ your Dad] talk to .you at all about custody stuff?. No. THE COURT: Mom? Just mom does? B.R.: Umm, yeah. But he does, like,. kind of bully us sometimes: about the custody thing:. P.R.: Arid we had to go to therapy. B.R.: Yeah. He kind. of bullies us. Like, he always -- hell bully us and say, like, are you ready to spend more time }here now? And if we don't answer, then he'll start yelling at us. P.R.; And then you can keep on coming up with -- B.R:: Yeah..And bell get mad atus if we don't answer. (Tr. 121-122)
THE COURT: , .. Now, you're talking to the counselor. What -- what is ttiat:all about? B.R.: My therapist? THE COURT: Your therapist Fm sorry. B.R. To talk about.what* Ineed to talk to her about. P.R. Mm=hmm. B.R.: About, like, whatever happened at my dad's, :or whatever is going on at my morn's, or. whatever is just happening. (Tr..123).
The children offered no spontaneous favorable testimony about-Appellee, his wife, the
paternal grandparents, or their paternal cousins. In response to leading questions; they
begrudgingly admitted it could be fun at Appellee's house (Tr. 117), tbat their step-mther is
14 ky nice (Tr.* 113), and they had fin with their cousins and grandpazents (Tr- 117-11$), bit thcY
countered with negative; commentary - Appelle's wife sleeps too.mnch (Tr. 113), their cousins
are mean Tr. 1.18}. S:R.'s testimony about App ellne's bullying was highly. remi 'scent of
Tr. 1a, "Iwould like to see him not bully, them so much. "). Appellant's.: (
In suns, their attitude toward Appellee was.sitnilar to Appellant's i n that they expressed
no remorse. or desire to improve :the situation. Tu the' court's experience; children who truly
experience lack. attention: from aparent will .express :sadness and desire for . things to lac different B.R. and P.R-:did not seem.s4 just determined to convince thc.cvurt of what:theywanted:
Accordingly, their testinivny w8s not.deemed. to.be well-reasoned or based. onmature
judgrncnt. I conjunction with its findings and conclu5ians under factors 5328(a)(1) and ( a) (4), the court again reached the conclusion under this factor that it would be detrimental to the.
children's relationship with their Appellee, and,. therefore, go against their best ; interests, to give
weight to their stated preference.
2. Homeschooling .
The children testified W their preference for homeschooling in no uncertain terms.
However, as previously discussed the courtt,s. concern in this area was not primarily wbcther the
children preferred hgmeschOb ng or not; but rather the continuing harm to the father-child
relationship if the court were to condone Appellant's tactics: Nothing in the children's testimony
led the court to conclude that the preference for homeschooling should override this concern. In
fact to :the: contrary, the court was satisfied that bath children. would adjust to returning to public
school without undue difficulty: When asked open-endedly how they would.feel if they went
back to public school ,BK .said:b e would not."like it as much" as homeschoo"09' but he did not
appear distraught about the% prospect : (Tr, 114): He went. on to mirror Appellant's testimony
1.5 about bullying, but he was .no more convincing than she was. Ha too' described rampant,,-
unchecked assaultive behavior, where mostly all public.school students were perpetrators and
"even - the bullies get Bullied" While the teachers look.on in silence. (Id.). B.R. delivered this
testimony with no sign of fear or anger.. Again, the testimony, especially considering the
unemotional way in which it was presented, simply. did not ring true.
11 Factors §5328(a)(8)Arougb.(115)
There-' is nothing. to add.to the trial court's.considerationOf the*rernaining factors that is
not documented in its Explanatory Opinion: As set forth in the Explanatory Opinion, the court's
conclusions under factors 5328(a)(8) ;( a){9); and (a)(10) essentially turned on ibe same issues
identified wader factors. 5328(a)(1) through (a )(7) involving the long tern eff6cts ofAppellee's
loss of equal shared custody due to. alcohol.abuse'and Appellant's failure or refusal to support his
return to equal co-parent status. The parties raised no issues related to childcare and proximity
of residences., Despite their differences, their level of conflict was relatively low as evidenced by
the number of consent agreements they`were ahle to reach, and their civility toward each other at
custody exchanges ( Tr. 38-39),- and during the,course`ofthe imstant litigation. The evidence of
substance abusapertained only to.Apgellee and`waS covered.ex*stively in connection with the
preceding factors. Accordingly, the couitwill not rehash.the evidence adduced. at trial under the
remaining: factors..
IV. CONCLUSION
The testimony and either evidence produced at trial was carefully considered in
conjunction with the relevant custody€actors set forth at 23 Pa.C.S.A. §532&(a); and in light of
the court's paramount concern for the hest interests. and safety of the children. The court's
decision to continue the parties' anent physical custody schedule and expand to equal shared
1G Custody in. the summers recognizes the. importance of Appellant's'more prominent rote iii the
children's lives, while. at ibe same time giving Appellee sufficient time to grow and enhance his
parenial :bond. The decision to return the children to public school immediately was carefully
considered and found Necessary ta.offset the ill-effects. of A:ppellant's tunilateral decision —
.Making making and unhealthy pattern of allying with the children aigainsi Appellee.. For all of these
reasons, the custody older oflauuary 3,.2421 should be affirmed
$Y THE COURT;
V.&
3o • I .fi M: -Walsh, a Judge
cc: Custody Conciliation Greg Gxasiuger, Esq. (far Defendant-Appellant) Joseph lVlarCane, Esq..(for PlaintiffAppellee)
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