K.T. v. H.T. ( 2015 )

J-A19045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.T., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
H.T.,
Appellee No. 454 WDA 2015
Appeal from the Order entered February 27, 2015,
in the Court of Common Pleas of Lawrence County,
Civil Division, at No. 11297/06 CA
K.T., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
H.T.,
Appellee No. 462 WDA 2015
Appeal from the Order entered February 27, 2015,
in the Court of Common Pleas of Lawrence County,
Civil Division, at No. 11297/06 CA
BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 19, 2015
In these consolidated appeals, K.T. (“Father”) appeals from the Order
entered on February 27, 2015 (hereinafter “Custody Order”) which (1)
denied the competing Petitions for modification of the existing child custody
Order entered on October 3, 2013 (“the prior custody Order”), filed by
Father and H.T. (“Mother”), regarding their minor child, C.T. (“Child” or “C.”)
J-A19045-15
(born in February 2001); and (2) granted Mother special relief relating to
enforcement of the prior custody Order. The Custody Order continued to
award Mother sole legal, and primary physical, custody of Child, and granted
Father partial physical custody. The Order also included an enforcement
provision requiring law enforcement officials and child protective services
agents/employees to return Child to Mother, rather than Father or anyone
acting on behalf of Father, if Child removed himself from Mother’s physical
custody (discussed in detail below). Father also appeals from a separate
Order entered on February 27, 2015, which granted Mother’s Petition for
contempt concerning Father’s violation of the prior custody Order
(hereinafter “Contempt Order”). We affirm the Custody Order, and quash
the appeal from the Contempt Order as interlocutory.
The factual and procedural background of this matter is exhaustively
set forth in the trial court’s 91-page Pa.R.A.P. 1925(a) Opinion, which we
adopt and incorporate herein by reference. See Trial Court Opinion,
2/27/15, at 1-62. In the interest of conciseness and readability, we will
briefly set forth the relevant facts and procedural history herein.
The trial court summarized the background of this case, and the
parties’ positions, as follows:
The issues in this case revolve around the fact that [Child]
refuses to be in the custody of Mother and[,] in fact[,] has not
been in the physical custody of Mother since December [] 2013,
despite the terms of the [prior] custody [O]rder. Mother claims
that this circumstance [exists] because of the contemptuous
conduct of Father[,] who has engaged in a pattern of parental
alienation, turning [Child] against Mother[. W]hereas[] Father
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contends that this circumstance is brought about by the manner
in which Mother treats [Child], causing him to be in fear of her[,]
and [Mother’s] refusing to engage in any meaningful effort to
keep [Child] in her custody.
Id. at 2.
The parties have engaged in contentious and continuous litigation
since their separation in 2004, when Child was only three years-old. Before
the entry of the prior custody Order, the parties shared physical and legal
custody of Child, pursuant to a consent custody Order executed in March
2011. In the prior custody Order, entered on October 3, 2013, the trial
court awarded sole legal and primary physical custody of Child to Mother,
who is a dietician, and resides in Neshannock Township, Lawrence County,
Pennsylvania. The prior custody Order also denied Father’s Petition to
relocate Child from Lawrence County to Westmoreland County.1 Father is a
physician, employed as a professor at the Lake Erie College of Osteopathic
Medicine. Father moved to Westmoreland County in July 2013, and
presently resides there.2 Father’s long-time paramour, M.E.S., has a
residence in Neshannock Township, Lawrence County, located nearby
1
Father appealed the prior custody Order. This Court affirmed, after which
the Supreme Court of Pennsylvania denied allowance of appeal. K.T. v.
H.T., 104 A.3d 67 (Pa. Super. 2014) (unpublished memorandum), appeal
denied, 95 A.3d 278 (Pa. 2014).
2
Before the entry of the prior custody Order, the parties had lived in close
proximity to one another in Neshannock Township, Lawrence County, and
within the same school district.
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Mother’s residence, which we will hereinafter refer to as the “Fireside
residence” or “Fireside.”3
Despite the dictates of the prior custody Order providing Mother with
primary physical custody, Child began to refuse to stay at Mother’s
residence, approximately one month after the entry of that Order. Trial
Court Opinion, 2/27/15, at 7. Specifically, the trial court explained that
[Child] and Father began a procedure whereby Father drops
[Child] off at Mother’s house[. A]t the custody exchange time,
[Child] will either knock on Mother’s door and tell her that he is
not staying or simply walk through the backyards, and in either
case, proceed directly to the [Fireside residence] of … [M.E.S.]
Father will then email Mother[,] telling her that [Child] is at
Fireside.
Id.
In its Opinion, the trial court detailed several incidents involving Child’s
refusal to stay with Mother during her scheduled custodial periods. The first
of those incidents occurred on November 7, 2013, when Child left Mother’s
home, wearing only pajamas, at approximately 9:00 p.m., after which time
Mother called 911 and went to the police station. Id. at 8. At the police
station, Mother learned that M.E.S. had already picked up Child. Id. Child
did not return to Mother’s home. Id.
On December 16, 2013, Mother held a birthday party at her home,
after which Child spent the night at Mother’s home. Id. The following
3
Fireside is located approximately two-tenths of a mile from Mother’s
residence.
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morning, Mother transported Child to school. Id. Child told her that he
would return to her home after school, but he did not do so. Id.
Mother next saw Child on January 1, 2014, when Father dropped him
off at Mother’s residence at 8:00 p.m., whereupon Child immediately ran
away. Id. Mother and the maternal grandmother followed Child in Mother’s
car, and eventually caught up with him. Id. Child entered the back seat of
the car, but, as the car pulled into Mother’s driveway, Child jumped out and
began running away. Id. Mother and the maternal grandmother followed
Child again. Id. Child ran to the Fireside residence, and went inside. Id. at
8-9. Child thereafter came back out and got into the car with Mother and
the maternal grandmother, and they drove away, with the intention of
heading to the home of a female friend of Mother. Id. at 9. The trial court
explained what ensued as follows:
At an intersection, Mother could hear [Child’s] seatbelt unclick.
Fearing that [Child] was going to jump out of the car again,
Mother directed the maternal grandmother to proceed. Mother
turned around to grab [Child’s] leg. [Child] opened the door and
jumped out of the car. Mother’s finger got stuck in the seam of
his pants and ripped the bottom of his pants as he took off
running. Mother called 911 and tried to find [Child]. At the
direction of the police, Mother returned to her residence and
waited. The police eventually notified Mother that [Child] was
with Father.
This incident resulted in the filing of a [P]etition for
protection from abuse [“PFA Petition”] by Father[,] on behalf of
[Child,] against Mother in the Westmoreland County Court of
Common Pleas. After hearings before the Honorable Megan
Bilik-DeFazio, Judge Bilik-DeFazio … dismissed the [PFA
Petition]. Father filed a [P]etition for reconsideration[,] …
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[which] was denied.[FN 1]
Father appealed the PFA denial to the Superior Court,
which affirmed the decision of the trial court.[FN 2]
___________________________________________________
[FN 1]
In denying reconsideration, Judge Bilik-DeFazio referred to
the case as one of the most tragic custody cases she had ever
seen and one of the most tragic cases of parental alienation.
The judge found [Child] to be very deliberate, that he knows
what he is doing and that he is manipulating.
[FN 2]
In the court’s Pa.R.A.P. 1925(a) Opinion, the court found
that Mother’s testimony was credible, that Mother had never
threatened [Child], that Mother’s explanation of what occurred
on January 1, 2014 was reasonable[,] and that the testimony of
[Child] that Mother had threatened to kill him[,] and that he was
“fearful” of Mother, was not credible. In finding that [Child]
lacked credibility regarding his assertions that [] [M]other has
threatened him and physically abused him, the court noted that
[] [C]hild’s testimony was deliberate and calculated; that he did
not show emotion under the circumstances[;] and that[,] by his
conduct and demeanor, [Child] was operating under a clear
agenda to manipulate the [prior] custody [O]rder. The court
also commented on a cell phone video which shows that [Child]
is giving [] [M]other a hard time, [and] that he is talking back to
[] [M]other and being difficult and unreasonable, but that Mother
exercised a great deal of patience in dealing with [Child] and his
unacceptable behavior in that situation.
Id. (footnotes in original).
The trial court additionally stated as follows:
[Child] has not been with [] [M]other since the incident of
January 1, 2014. In the spring of 2014, Mother attended
[Child’s] band concert at Neshannock School and observed the
concert, but [Child] would not spend any time with her at that
event. Meanwhile, during this entire period of time, Father and
[Child] continued the procedure whereby Father will drop [Child]
off at Mother’s residence but [Child] will not stay[,] and will
proceed to the Fireside residence, where Father will pick up []
[C]hild. [Child] will videotape these events. He himself testified
that he videotapes his interaction with [] [M]other for use of the
videos in court.
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In connection with the proceedings before the
Westmoreland County Court of Common Pleas on the PFA
Petition that Father brought on behalf of [Child], Father arrived
at the Westmoreland County Courthouse on January 3, 2014. In
passing through security, Father was asked if he had any
weapons. Father denied having any weapons. Security
discovered in his briefcase a loaded Glock 9mm firearm and a
folding knife with a three and three-fourth[-]inch blade in
Father’s briefcase. Father was arrested and charged with
Possession of a Firearm and Other Dangerous Weapon in a Court
Facility pursuant to 18 Pa.C.S.A. § 913(a)(1). The disposition of
the charge was that Father entered the Accelerated
Rehabilitative Disposition Program for a period of six months.
Father testified that he had forgotten that he had the items in
his briefcase and that he generally carried a loaded firearm,
[which] he had obtained from a friend who was in the scrap
recycling business, for his own protection[,] as he was afraid
that Mother would harm him[,] and that generally[,] he carried
the loaded firearm to the efforts to [sic] effectuate custody
exchanges.
Id. at 10-11.
In relation to the prior custody Order, the trial court stated in its
Opinion as follows:
In awarding primary physical custody to Mother, the
[c]ourt found that Father demonstrated a desire to frustrate
Mother’s relationship with [Child]. The [c]ourt also found that
[Child] does want to conform to many of Father’s expectations,
and that [Child’s] desire to please Father is negatively affecting
his relationship with Mother. The [c]ourt noted that neither
Father nor [Child] could testify to any positive attributes Mother
possesses as a parent, thus indicating that [Child’s] emotional
connection to Mother is being hindered in some form[, and] that
[it] is having a devastating effect on his emotional security and
development. The [c]ourt also noted that, although the custody
evaluator, Dr. [Douglas] Darnell, made no specific findings of
parental alienation, [] Dr. Darnell’s evaluation was completed
prior to the fall of 2012, when [Child] began expressing his
animosity towards [] [M]other[. Additionally], … when Dr.
Darnell was presented with hypothetical questions regarding
behaviors displayed by [Child], he testified that those behaviors
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were consistent with behaviors exhibited by a child suffering
from parental alienation. The [c]ourt also indicated that
[Child’s] negative perception of Mother was irrational. The court
further concluded that Father’s actions have caused Mother’s
relationship with [Child] to suffer[,] and that he has enabled
[Child’s] unwarranted fears and trepidations of Mother. The
court also concluded, in awarding primary physical custody and
sole legal custody to Mother, that if Father was awarded such
custody, [Child’s] relationship with Mother would dissipate to the
point of disrepair.
Id. at 6-7 (footnote omitted).
While Father’s appeal from the prior custody Order was pending, the
parties filed several Petitions and Motions, which are more fully described in
the trial court’s Opinion; we adopt the trial court’s recitation herein. See id.
at 11-15. Most relevant to the instant appeal, on September 5, 2014,
Mother filed a Petition for contempt (“September Petition for contempt”),
asserting that Father had violated the prior consent Order by enrolling Child
in the public school district that serviced the area of Father’s residence in
Westmoreland County, without Mother’s consent or approval by the trial
court.
In November 2014, and January 2015, the trial court held a custody
trial with regard to the parties’ competing Petitions for modification of the
prior custody [O]rder, and Mother’s Petitions for special relief and contempt
in relation to that Order. On February 27, 2015, the trial court entered the
Custody Order, which dismissed the parties’ Petitions for modification of
custody, and granted Mother special relief relating to enforcement of a
particular provision of the Custody Order: paragraph 16. Paragraph 16
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provided that law enforcement and/or child protective services were to
return Child to Mother, regardless of the circumstances, if he runs away
from her home while in her custody.4
Also on February 27, 2015, the trial court entered the Contempt
Order, which, in relevant part, granted Mother’s September Petition for
contempt, based upon Father having unilaterally enrolled Child in a different
school district. Mother alleged that Father’s action violated a provision in the
prior custody Order providing that Mother was the sole legal custodian of
Child, and therefore, entitled to make all decisions concerning his education.
Notably to the instant appeal, the Contempt Order did not impose any
sanctions on Father.
Father timely filed Notices of Appeal from the Custody Order and
Contempt Order, along with two Concise Statements of Errors Complained of
on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In March 2015,
4
Paragraph 16 specifically provides as follows:
16. During the time that … Mother … has the right of physical
custody pursuant to this Order, [] [C]hild shall not be permitted
to be at the residence designated as … Fireside … without
Mother’s consent nor shall [Child] be permitted for any reason to
be placed in the custody or control of … Father … or [M.E.S.]
without Mother’s consent, and no law enforcement officer,
employee or agent of Lawrence County Child and Youth Services,
nor any other agency or authority, shall place[] [C]hild in the
custody or control of Father, during Mother’s scheduled primary
custody period, with the further direction that if for any reason []
[C]hild removes himself from Mother’s custody, he is to be
returned to Mother and not Father or anyone acting on Father’s
behalf.
Custody Order, 2/17/15, ¶ 16.
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Father filed in this Court a Motion to stay the Custody Order. Although we
entered an Order temporarily granting the stay, on April 1, 2015, we entered
an Order lifting the temporary stay and denying Father’s Motion, directing
Father to return Child to Mother two days later, at her residence.
Approximately one week later, Father filed a second Motion to stay the
Custody Order, which this Court denied.5
In his brief on appeal, Father presents the following issues for our
review:
I. Whether the trial court committed an abuse of discretion in
awarding sole legal and primary physical custody to Mother[,]
when the facts of record demonstrated that there was a
complete breakdown of the relationship between Mother and
[C]hild[,] and[,] for the past 14 months, that Mother had no
contact with [] [C]hild during this time, and despite having sole
legal custody[,] repeatedly failed to act in [] [C]hild’s best
interest in meeting [C]hild’s medical, dental, mental health and
educational needs?
II. Whether the trial court committed an abuse of discretion in
awarding primary physical custody to Mother[,] when the court
engaged in no analysis [concerning] the effect of such an
[award] on [] [C]hild as the circumstances existed at the time of
trial, [which] uprooted [] [C]hild from school friends and his
current life[,] and whether such an [award] was in [] [C]hild’s
best interest under the factors enumerated in 23 Pa.C.S.
[§] 5328[,] and when Mother presented no current evidence to
the [trial c]ourt as to her current ability to parent [] [C]hild as
required under M.E.V. v. F.P.W., 100 A.3d 670 (Pa. Super.
2014)?
5
At oral argument, on July 8, 2015, Father’s counsel informed this panel
that Child was placed in a foster care home, after having refused to return to
Mother’s custody. Father additionally brought this matter to our attention
via a post-submission Application for Supplement to the Record, which we
denied.
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III. Whether the trial court committed an abuse of discretion in
awarding primary physical and sole legal custody to Mother by
failing to properly consider and/or completely disregard the
uncontroverted testimony and opinion[s] of the [c]ourt-
appointed experts[,] and failing to mandate reunification
counseling[,] as recommended by the [trial c]ourt’s experts?
IV. Whether the trial court committed an abuse of discretion
when it found that Father had alienated [] [C]hild from Mother[,]
when there was no evidence presented of parental alienation[,]
[] neither expert testified that they believed there was parental
alienation[,] and the finding was based on pure speculation?
V. Whether the trial court committed an abuse of discretion
when it ordered that law enforcement and/or child protective
services were to return [] [C]hild to Mother[,] regardless of the
circumstances?
VI. Whether the trial court committed an abuse of discretion
when it found Father in contempt of the [prior custody] Order []
by enrolling [] [C]hild in school[,] as Father’s actions were not
an “intentional, designed act and one without justifiable excuse.”
Com. ex rel. Wright v. Hendrick, 312 A.2d 402[, 404] ([Pa.]
1973); the [prior custody] Order was not definite, clear and
specific; there was no volitional violation or wrongful intent;
Mother failed to provide for schooling pursuant to 24 P.S. [§] 13-
1327[,] the Compulsory School Attendance Law; when Father
was required to always consider [] [C]hild’s best interest, make
sure that [] [C]hild continued to attend school, continue other
activities beneficial to [] [C]hild’s overall growth and
development[,] and exercise daily parental responsibility when []
[C]hild was in his physical custody[; and] when Mother had
abdicated her parental responsibilities?
Father’s Brief at 11.6
In custody cases, our standard and scope of review are 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
6
In his Concise Statements, Father set forth his issues somewhat
differently. Nevertheless, we determine that he preserved the issues for our
review.
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evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted); see
also Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (stating
that “[a]n abuse of discretion is not merely an error of judgment; if, in
reaching a conclusion, the court overrides or misapplies the law, or the
judgment exercised is shown by the record to be either manifestly
unreasonable or the product of partiality, prejudice, bias or ill will, discretion
has been abused.”) (citation omitted). Additionally, this Court has observed
that
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation
omitted).
As the custody trial in this matter was held in November 2014, and
January 2015, the Child Custody Act (the “Act”), 23 Pa.C.S.A. §§ 5321 to
5340, is applicable. C.R.F., 45 A.3d at 445 (holding that, if the custody
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evidentiary proceeding commences on or after the effective date of the Act,
i.e., January 24, 2011, the provisions of the Act apply). With any custody
case decided under the Act, the paramount concern is the best interests of
the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act
provides that, upon petition, a trial court may modify a custody order if it
serves the best interests of the child. Id. § 5338. Section 5328(a) of the
Act sets forth the various factors that a trial court must consider when
ordering any form of custody (collectively referred to as “the best interest
factors”). Id. § 5328(a).
We will address Father’s first and second issues together, since both
involve challenges to the trial court’s refusal to disturb the award of sole
legal custody and primary physical custody to Mother under the prior
custody Order. See Father’s Brief at 21-34. Pointing to Child’s repeated
refusal to stay at Mother’s residence during her custodial periods, Father
asserts that Mother and Child are estranged. Id. at 22-23. According to
Father, “Mother abandoned [Child] and any parental responsibilities for his
care, safety, or emotional well-being when he refused to stay with her.” Id.
Father cites McDonel v. Sohn, 762 A.2d 1101 (Pa. Super. 2000), Snarski
v. Krincek, 538 A.2d 1348 (Pa. Super. 1988), and Jones v. Stone, 495
A.2d 205 (Pa. Super. 1985), for the proposition that a parent’s lack of
involvement and abandonment of parental duties supports a modification of
custody and award of custody to another person, even to a non-parent.
Father’s Brief at 27-28.
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Father emphasizes that “the sole criterion in determining custody
disputes is the best interest and paramount welfare of the child.” Id. at 28-
29 (quoting M.E.V., 100 A.3d at 679) (emphasis in M.E.V., citation
omitted). Father points out the Court’s statement in M.E.V. that “a trial
court may not merely advert to prior, manifestly outdated findings of fact in
lieu of express and fully explained reconsideration of those factors in the
light of any changes in the parties’ circumstances that occurred after the
prior ruling and attendant explanation.” Father’s Brief at 27 (quoting
M.E.V., 100 A.3d at 681). Father additionally contends that the trial court
cannot “simply pay lip service” to the best interest factors in section
5328(a). Father’s Brief at 34 (citing C.B. v. J.B., 65 A.3d 946 (Pa. Super.
2013)). According to Father, the trial court’s Opinion “did not address which
factor(s) weighed in favor of which party, … or how the factors affected its
decision. Instead, the [t]rial [c]ourt came to the conclusion that Mother’s
relationship with [Child] was paramount to his best interests[,] without
reference to findings to support that conclusion.” Father’s Brief at 34.
Father argues that Child’s best interests are served by awarding
primary physical custody to him, as he is the only parent who has provided
for Child’s physical, intellectual, moral, and spiritual well-being during the
approximately fourteen-month period prior to the entry of the Custody
Order. Id. at 36. Pointing to this period of separation, Father contends that
“Mother offered not one scintilla of evidence … [as to] how she would keep
Child in her care should Father[]” not be granted relief. Id. Father further
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asserts that the trial court abused its discretion by failing to consider the
effect on Child of his immediate return to Mother and his removal from the
Hempfield School District (i.e., where Father had enrolled Child without
Mother’s consent), absent the provision of immediate therapeutic
intervention. Id.
In its Opinion, the trial court discussed the law concerning section
5328(a), set forth the best interest factors, and provided a thorough analysis
of each of the factors. See Trial Court Opinion, 2/27/15, at 62-80.7, 8
The
trial court’s analysis is sound and supported by the record, and we therefore
adopt and incorporate it herein for purposes of Father’s first and second
issues. See id.
After addressing the law and the best interest factors, the trial court
then stated in its Opinion as follows:
Although extensive proceedings have been held on the
[parties’] competing requests for modification, and for special
relief and findings of contempt, essentially nothing has changed
subsequent to the proceedings that resulted in the … [prior
c]ustody Order[,] except that [Child] adamantly refuses to be
with [] [M]other. [Child’s] recalcitrance to being with []
[M]other was recognized by the trial judge in the prior
proceedings. In the October [3], 2013 Opinion, the [trial] court
noted that Father encourages [Child’s] unreasonable
7
Effective January 1, 2014, section 5328 was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services). Although
applicable at the time of the custody trial in the present matter, there was
no evidence that would have required the trial court’s consideration of this
factor.
8
We note that the trial court’s discussion of factor 5328(a)(8) is not
preceded by a heading, but appears to begin on page 71.
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apprehension regarding Mother (Page 25); that Father has
demonstrated a desire to frustrate Mother’s relationship with
[Child] (Page 29); that if Father is awarded primary physical and
sole legal custody, [Child’s] relationship with Mother will
dissipate to the point of disrepair (Page 33); that the foregoing
analysis finds fault in Father for enabling [Child’s] unwarranted
fears and trepidations of Mother; the [c]ourt believes that
Father’s actions have caused Mother’s relationship with [Child] to
suffer, but the [c]ourt does not believe that Father’s actions
should be characterized as alienating (Page 33).
Although the trial court in the prior proceedings stops short
of characterizing Father’s actions as alienating, the court did
attribute [Child’s] unfounded perceptions of [] Mother to be
caused by Father’s actions[,] and [found] that [Child’s] thoughts
about Mother paralleled those of Father.[FN 3] The court’s
prediction proved to be true, that if [Child] were left in the
custody of Father, the relationship with [Child] and Mother would
only deteriorate. However, the circumstance that allowed Father
to have the custody was not brought about by court order, but
by the fact that [Child] simply refused to be with Mother[.]
___________________________________________________
[FN 3]
More recently, Mother filed an injunction proceeding against
[M.E.S.,] seeking to enjoin her from interfering in the custody
matters. [H.T. v. M.E.S.], No. 1091 of 2014, C.A. The same
trial judge [who] issued the … Custody Order in this case denied
injunctive relief, but in a Pa.R.[A.]P. 1925(a) Opinion[,] found
that the “root of [] [C]hild’s behavior seems to have been
derived from [Father].” (Pa.R.A.P. 1925(a) Opinion dated
February 4, 2015, page 10[)].
Trial Court Opinion, 2/27/15, at 81-82 (footnote in original).
Our review of the record demonstrates that the trial court thoroughly
considered each of the best interest factors, and its Custody Order sought to
render a custody award in Child’s best interests. Contrary to Father’s
assertion, the record reflects that the trial court did not merely rely on
outdated findings. Rather, the court expressly and fully explained its
consideration of the best interest factors, in light of the parties’ actions, as
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concerns Child’s best interests, following entry of the prior custody Order.
The trial court determined that Mother had not abandoned Child, but,
instead, Child, with Father’s assistance, had acted to obviate the prior
custody Order and deprive Mother of her court-awarded custody. Further,
the trial court found that, under the circumstances, Child’s best interests are
served by maintaining the prior custody Order, awarding sole legal custody
and primary physical custody to Mother, and dismissing the competing
modification Petitions. We discern no abuse of discretion or error of law in
the trial court’s analysis, and its findings are supported by the record.
Accordingly, we affirm based on the trial court’s Opinion regarding Father’s
first two issues, see Trial Court Opinion, 2/27/15, at 62-82, and conclude
that these issues lack merit.
Next, we address Father’s third and fourth issues together. In his
third issue, Father contends that the trial court abused its discretion by (1)
awarding sole legal custody and primary physical custody to Mother in
disregarding, or failing to adequately consider, the uncontroverted testimony
and opinions of the court-appointed experts; and (2) failing to mandate
reunification counseling, as recommended by these experts. See Father’s
Brief at 39-42. Father alleges that Dr. Martin Myers (“Dr. Myers”), the
court-appointed psychologist who evaluated Child, testified that Child is
flourishing in Father’s custody, and recommended that Mother and Child
engage in counseling, and that Mother and Father each participate in
counseling. Id. at 37. Father states that Dr. Bruce Chambers (“Dr.
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Chambers”), the court-appointed custody evaluator who performed an
updated custody evaluation, testified that it would be problematic to return
Child to Mother’s custody without therapeutic intervention. Id. at 40.
Father argues that the trial court’s Order directing the immediate return of
Child to Mother is against the weight of the evidence and against the
uncontroverted testimony of these two experts. Id. at 41. According to
Father, the trial court improperly rejected Dr. Chambers’s testimony. Id. at
41-42. In support of this argument, Father relies on Murphey v. Hatala,
504 A.2d 917 (Pa. Super. 1986), for the proposition that it is an abuse of
discretion for the trial court to accept as unpersuasive, and to totally
discount, uncontradicted expert testimony. Father’s Brief at 41.
In his fourth issue, Father argues that the trial court abused its
discretion when it found that he had alienated Child from Mother, where
there was no evidence of parental alienation and neither Dr. Myers nor Dr.
Chambers had opined that there was parental alienation. Id. at 46-48.
According to Father, the trial court’s finding of parental alienation was based
on pure speculation, and Mother’s mere allegations. Id. at 46-47.
Additionally, Father asserts that “[n]early all of the evidence of record
supports that it was Mother’s actions, not Father’s, that were estranging her
from [Child]. Particularly relevant was Mother’s complete rejection of [Child]
for a period of over 14 months, a fact the trial court summarily ignores in its
Opinion.” Id. at 47.
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In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), this
Court held that a trial court may not simply dismiss uncontradicted expert
testimony unless the court’s independent determination is supported by the
certified record. Id. at 19-20. Although a trial court is not bound by the
custody evaluator’s conclusions, it must actually consider the expert’s
analysis. Id. at 20. The M.A.T. Court held that “[s]o long as the trial
court’s conclusions are founded in the record, the lower court was not
obligated to accept the conclusions of the experts.” Id. (citation omitted);
see also King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (stating that,
if the certified record supports a trial court’s conclusions in a custody matter,
the trial court is not required to accept an expert’s conclusions and
recommendations).
In its Opinion, the trial court provided a detailed explanation for its
rejection of the expert testimony of Drs. Chambers and Myers, as concerns
section 5328(a)(8) of the Act (i.e., the best interest factor pertaining to
parental alienation), and set forth ample evidence in the certified record
supporting the court’s determination that Father had engaged in alienation.
See Trial Court Opinion, 2/27/15, at 71-77, 83-86. Since the trial court’s
recitation of the evidence, and the court’s determinations, are sound and
supported by the record, we incorporate them herein with regard to Father’s
third and fourth issues. See id.; see also M.A.T., 989 A.2d at 19-20. We
affirm on this basis in rejecting Father’s third and fourth issues, as we
conclude that the trial court properly exercised its discretion in finding that
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Father engaged in parental alienation, and in not following the custody
experts’ recommendations. See Trial Court Opinion, 2/27/15, at 71-77, 83-
86; see also King, 889 A.2d at 632.
In Father’s fifth issue, he argues that trial court abused its discretion
when it directed, in paragraph 16 of the Custody Order, that law
enforcement and/or child protective services must return Child to Mother if
he runs away from her home while in her custody. See Father’s Brief at 42-
46. Father posits that, if Child refuses to stay with Mother, the effect of the
provision is essentially an adjudication of Child as dependent, since it
prohibits Child from being placed in Father’s custody. Id. at 42-43. Father
argues that the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. (governing the
adjudication and disposition of delinquent and dependent children), does not
provide for a restriction on the placement of a dependent child prior to an
adjudication of dependency. Father’s Brief at 44. According to Father,
paragraph 16 (1) excuses Lawrence County Children and Youth Services
(“CYS”) from meeting its burden to establish Child’s dependency under the
Juvenile Act, id. at 42-43; (2) violates Father’s due process rights, id. at 43;
and (3) violates the statutory mandate set forth in section 6301 of the
Juvenile Act, 42 Pa.C.S.A. § 6301(b)(1), requiring the preservation of family
unity whenever possible. Father’s Brief at 45. Finally, Father maintains that
the trial court has scheduled a dependency hearing concerning Child, who is
still in placement. Id.
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Our review of the record reveals that trial court created paragraph 16
of the Custody Order in response to Mother’s request for special relief for
enforcement of the prior custody Order. See Trial Court Opinion, 2/27/15,
at 81. The prior custody Order had granted Mother primary physical
custody, but Child was obviating that Order by running away from Mother’s
residence. In light of Child’s repeated refusal to see Mother,9 the trial court
determined that this enforcement provision was necessary to ensure that the
award of primary physical custody to Mother was enforced. See id. at 82
(stating that “the circumstance that allowed Father to have the custody was
not brought about by court order, but by the fact that [Child] simply refused
to be with Mother[. T]hat circumstance has been allowed to exist without
being specifically addressed by the court relative to the aspect of
enforcement of the [prior custody] Order.”). We determine that the trial
court’s analysis supports its decision to grant Mother’s request for special
relief for enforcement of the prior custody Order.
Moreover, as support for his argument that paragraph 16 is
inappropriate for a custody order, Father relies generally on the Juvenile Act
and case law under its statutory provisions. However, paragraph 16 does
not refer to the Juvenile Act, nor does this Court have an appeal before it
under the Juvenile Act. Father asks this Court rule on a matter raised in his
9
In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth its analysis and
legal support involving the refusal of a child to visit his parent, which we
incorporate herein by reference. See Trial Court Opinion, 2/27/15, at 82-
83.
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second Motion for stay, which we denied until the matters raised therein are
addressed by the trial court. In effect, Father would like this Court to
prematurely rule on dependency proceedings that are before the trial court;
we may not do so. See Pa.R.A.P. 302(a). Accordingly, we discern no abuse
of discretion by the trial court’s entering paragraph 16 in the Custody Order.
Father is therefore not entitled to relief on his fifth issue.10
Finally, Father argues that the trial court abused its discretion when it
found him in contempt of paragraph 2 of the prior custody Order, which
granted Mother sole legal custody of Child, and the authority to, inter alia,
make major decisions concerning Child’s education. See Father’s Brief at
48-53. Concerning Father’s unilateral enrollment of Child in the Hempfield
School District, prior to the commencement of the 2014-2015 school year,
Father asserts that “[b]y the Fall of 2014, Mother had not taken care of
[Child], nor acted as [Child’s] custodial parent,” and “Mother made no
efforts for appropriate schooling or enrollment for [Child], since he was not
staying in her house.” Id. at 48, 49.
It is well-established that “each court is the exclusive judge of
contempts against its process.” G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super.
2013) (citation omitted). Additionally, “[t]his Court must place great
10
We additionally observe that there is no information in the certified record
regarding Child’s allegedly pending juvenile adjudication and disposition,
and/or his placement. See Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.
Super. 2006) (en banc) (stating that an appellate court is limited to
considering only the materials in the certified record when resolving an
issue).
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reliance on the sound discretion of the trial judge when reviewing an order of
contempt[,]” and we will not disturb a trial court’s findings on a contempt
petition absent a clear abuse of discretion. Id.
To sustain a finding of civil contempt, the complainant must
prove certain distinct elements by a preponderance of the
evidence: (1) that the contemnor had notice of the specific order
or decree which he is alleged to have disobeyed; (2) that the act
constituting the contemnor’s violation was volitional; and (3)
that the contemnor acted with wrongful intent.
P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012) (citation
omitted).
Here, the trial court found that Father’s enrollment of Child in the
Hempfield School District, violated paragraph 2 of the prior custody Order.
Trial Court Opinion, 2/27/15, at 89-90. The trial court also found that
Father had acted without the approval of the court or the consent of Mother,
who had sole legal custody. Id. Additionally, the court determined that
Father had acted intentionally and willfully, pointing out the Hempfield
School District enrollment form completed by Father, wherein he stated that
he had custody of Child. Id. at 90. The trial court, therefore, granted
Mother’s September Petition for contempt. Id. at 90-91. However, the
court deferred the imposition of sanctions, pending the opportunity for
Father to purge himself of the contempt. The Contempt Order, at paragraph
5, provides the following purge condition:
5. [Father] shall purge himself of contempt by strictly complying
with all provisions of the [C]ustody [O]rder entered
contemporaneously with this Order and any subsequent orders
in this case. [Father] shall be deemed to have purged himself of
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contempt if he remains in compliance for a period of (6) months
from the date of this Order.
Trial Court Contempt Order, 2/27/15, ¶ 5.
We conclude that Father’s appeal from the Contempt Order is
interlocutory, as the Order imposes no sanctions on him. See Genovese v.
Genovese, 550 A.2d 1021, 1022 (Pa. Super. 1988) (stating that, unless
sanctions are imposed, an order declaring a party in contempt is
interlocutory, and that a threat to impose sanctions in the future is neither
final nor appealable). We, therefore, quash Father’s appeal from the
Contempt Order at Docket No. 462 WDA 2015 as interlocutory.11, 12
Appeal at Docket No. 454 WDA 2015 affirmed; appeal at Docket No.
462 WDA 2015 quashed as interlocutory.
11
On April 2, 2015, this Court issued a Rule on Father, directing him to show
cause as to why this appeal should not be quashed as interlocutory. Father’s
counsel responded by claiming that the trial court used the contempt finding
in its custody ruling in relation to the Custody Order. On April 17, 2015, we
discharged the Rule, pending a review by this panel. Upon our review, we
determine that the trial court, in making its Custody Order, did not rely upon
the contempt finding. Rather, the trial court considered Father’s unilateral
actions in enrolling Child in the Hempfield School District, without the prior
consent of Mother or the approval of the trial court. While these same
actions were the basis for the trial court’s contempt finding, the contempt
finding was not the basis for the court’s decision to maintain the prior
custody Order in place. See Trial Court Opinion, 2/27/15, at 87-90.
12
In her brief, Mother requests the imposition of costs on Father. See
Mother’s Brief at 19. However, she has not filed a motion for costs or
developed the request; accordingly, this claim is waived. See In re W.H.,
25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that “where an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”); see also Pa.R.A.P. 2119(a).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2015
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K.,..,, Plaintiff
IN THE COURT OF COMMON PLEAS
LAWRENCE.COUNTY, PENNSYLVANIA
vs. · :. NO. 11297 OF 2006, C.A.
.
APPEARANCES
For Plaintiff: Richard B. Sandow, Esq.
c. Kurt Mulzet, Esq.
Stephanie T.' Anderson, Esq.
Jones, ·Gregg, Creehan &
Gerace, LLP
411 seventh Avenue
suite 1200 · .
Pittsburgh, PA 15219
· For Defendant: Ri~hard Ducote, Esq.
Erica Burns, Esq.
Ri~hard oucotei PC
4800 Liberty Avenue
3rd Floor
Pittsburgh, PA 1522'4
OPINION
MOfio, P.J. FEBRUARY 27, 2015
T-, In this custody dispute presently'before the court,
(hereinafter "Mother") seeks enforcement·of the order of
court dared October 1, 2013 issued by the· aonorab 1 e Thomas M.
Hllllf
· Piccione which granted her. so 1 e 1 ega 1 and primary phys i. ca 1
custody of the minor child, clllllll TIIIII, born February 10,
ioq1, and, further, seeks modi f'i catrion .9f that· custody order by
· ``~·~·d·i-~g· ·h~·~. . :s~l·e . . p.h·y·si ·cal·. ·.·c~·s·tody. . .arid .... p. r'ovi d ;·h~r··Father· . wi th-- .
S3FID
closely supervised visitation, as. opposed to partial custody.
JUDICIAL
DISTRICT
IRF!NCI!: COUNTY
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October 1, 2013 custody order by awarding him the sole legal and
physical custody of cllllll, with ctllllllllll's further contact with
Mother to be as may be advised th rough reuni fi cation counse 1 ing .
. The issues in this case_revolve around the fact that '11111111
refuses to be in the custody of Mother and in fact has not been
in the physical custody of Mother since December of 2013,
despite the terms of. the October 1, 2013 custody order , Mother
claims that this circµmstance is because of the contemptuous
ali.enation, turning c-
conduct.of Father who has engaged in a pattern of parental
against Mother; whereas, Father
in which Mother treats ·c-,
contends that this circumstance i's brought about by the manner
causi.ng him to be in fear of her
and refusing to engage in any meaningful effort to keep <111111
in her custody.
The record of this case will reflect that the parties have
engaged in continuous litigation since their separation in 2004.
I
The custody liti§ation originally began in the court·of common
Pleas of Allegheny county, Pennsylvania, with jurisdiction being
transferred to this court in August of 2006. The court will not
here recant the entire procedural history of the case since
2006; however, the opinion of Judge.Thomas M. Piccione in
support of his October 1, 2013~ order provides a detailed
procedural history up to the point of the order of October 1, ·
io13. The court will, however, review the history of this case
...... R M,_ ,.
from March 15, 2011';.... tfi'e... date .. orr . whi-ch-a-:consent-€-ust-0dy-. o.rdat..; . _ . . . - . . .
53RD
was entered, in order to provide some perspective on this cas.e.
JUDICIAL
DIS'rRICT
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The March 15, 2011, order provided the parties with shared
..
legal and shared physical custody with Mother and Father to
exercise custody on an alternating weekly basis, with exchanges.
to take.place on Sundays at 5:00 p.m. At this time, the parties
had lived in close proximity to one another in Neshannock
Township, Lawrence county, and within the same· school district.
The parties, however, were unable to communicate with one
another~ and litigation followed which resulted in the court
appointing a guardian ad litem for conner
.
and requiring
. the
.
court to hear emergency· relief petitions addressing such things
as ctllll's extracurricular activities, which dentist he would
reat withr and issues surrounding Father's efforts in obtaining
a passport.
on·september 17, 2012, the guardian ad litem for clllf
presented a motion.for leave of court to withdraw. The basis
for this request was that Father had taken cllll to the office
of the guardian ad litem; ctllll informed the guardian ad litem
that he
. no longer wanted
. .
to work with the guardian ad litem;
and, thereafter, c"'9 walked out of the office of the guardian
ad l item with his Father. The guardian ad 1 i tern was given leave·
to.withdraw.
A 1 so on September 17, 2012, Mother fi 1 ed a peti t icn for
protection from a~use against Father alleging that on September
· 16, · 2012, a verbal altercation occurred between Mother and
'·Father, "fofti"ed-Tn - by Father's 91 rTfri encr;-M··-s-;-arrd•"'"' ~ .
53FtD
that Father and Ms. sllllhad threatened her during the
JUDICIAL
DISTRICT altercation.
'fRENClt COUNTY
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on October 15, 2012, Father presented a motion for
emergency custody order, wherein Father alleged that Mother and
Maternai Granafather were attempting to intimidate.cllll in
regards to the custody dispute and.that Mother had physically
attacked cllllll on September 30, 2012.
on November 28, 2012, Father filed a petition for contempt
alleging.that Mother was in violation of existing orders of
court for permitting third parties.to attend custody exchanges
and dis~ussing the·proceedings with ctlllllll'· Father also filed a
petition for protection from abuse against Mother on c4lllll's
beha1 f on November 29, 2012 ·, a11 eg·i ng that on Sunday, November
25, 2012., Mother physically grabbed
confiscate
Father.
the child' s ce11 phone when c-
CIIIIIJ in an attempt to
The petition further· alleged that Mother's.father
attempted to ca 11
(hereinafter "Maternal Grandfather")
residence and forced himself into c-'?
arrived at Mother's
room, pinning
on the ground, and striking ct111111's head against the floor.
c-
The next day, November 30, 2012, Father filed another protection
from abuse petition alleging that.Mother threatened Cllllf on
November 29, 2012 by refusing to provide c& with food or
drink until Ctlllllf wrote a letter to ·Maternal Grandfather and
.that Mother became physically violent with Ctlllllf and prevented
him from leaving her residence.
Al1 of the f~regoing petitions for protection from abuse,
motricns for emerge~cY. custody order , . . . ana·ccfrit.empt--pe-ci·ttons ·were ......
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dismissed by the court after hearing, and on February 6, 2013,
JUDICIAL
DISTRICT the court· entered an order reinstating the March 15, 2011
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custody consent order which provided for shared physical and
legal cµstody. Additionally, the court directed the parties to
begin counseling for c3 's benefit.
By May 30, 2013 both pa.rti es had filed competing claims for
primary custody; however, on June 18, 2013, Father filed a
notice of re'locatrion proposal, ·which was objected to by Mother.
The rel9cation reque~t came about ·pecause Father had relocated.
to Greensburg, Westmoreland county, Pennsylvania for reasons
related to his employment.
on August 20, 2013, a six-day.custody and· relocation
hearing commenced, which resulned in the October 1,. 2013 order.
The proceedings before Judge Piccione addressed the issue
of cs 11 being anxious about seeing Mother for any per+od of
time, with eve~ts or c eith~r running from his mother or
not showing for custody exchanges. Mother acknowledged that
prior to the fall of 2012, her relationship with c was
normal; but that in November of 2012·C&L (,s attitude towards
his mother began to change. In November of·2012, Father began
calling c while c was at Mother's house and having
extensive phone conver-sat lons that would las~ for hours.
contrary to the description of events that occurred on November
2 5 ~ 2012 indicated by c-, Mother . recoun.ted that c:••
arrived ·at her house and·would not ·speak to her; that c was
on the phone with Father for an extended period of time and .· .. ··.
... . . . wou 1 d ·-· no't get . ··-~ff . of the phone .'-At about ·9: 00 c 5 gotC'fff-of·---- . _ .
the phone with Father and came out of his room screaming "you ' re
S3PCD
JUDICIAL.
DISTRICT going to kill me". Mother was unable to· calm cc 7 down so she
·YRS:NC&: COUNTY
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called her par~nts for help. When Maternal Grandfather arrived
at the residence, Clllllfbarricaded himself in his bedroom
against his door » · Maternal Grandfather 'had to force his way
·into c 's bedroom causing c to be pushed across the
floor. c then threw himself on th,e ground, thrashing his
arms and legs and slamming his head on the ground .. Mother and.
Maternal Grandfather physically restrained ca f by·holding
down his arms and iegs until he regained control of himself_.
After this incident, a'period of.time e~sued wh~re Mother
did not see c:111111~because of the pending_ protection from abuse •, I
p~titions and the litigation that flowed therefrom. In. February
of 2013, c-•
again began staying at Mother's residence and
the parties continued to alternate custody on a week-on and·
week-off basis, which continued.until the custody order was
. . 3
entered by Judge· Piccione on. October ;.J:'~ 2013. ··1n awarding
. .
prima~y physical custody to Mother, the court found that Father
demonstrated a desire to frustrate Mother's relationship with
cs ?. The court also found that c S does want to conform
' I
to manyof Father's expectations, and that c•••t' s desire to
p'lease .Father is negatively affecting hf s relationship with
Mother. The CQurt further.noted that neither Father nor c a
.cou'ld testify to any positive attributes Mother possesses as a
parent,:thus indicating that c1111111t's emotional connection to
·-Mother is bei,ng hindered in soine form that is having· a
.. ':devastating. effect ·on"'lns"' emo"ti onal-se"cu r,-tyand deve-lopm-en-i-:··· ..... ·-· - .
53RO
The cou~t also noted that, although the custody evaluator, Dr.
JUDICIAL
OISiRICT Darnell, made no specific findings of parental alienation, that
r-compet~ce in schoo-l-;------·--- . . . __ . __
on January.7, 2014, Mother filed an emergency supplemental
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JUDICIAL
DISTRICT petition for special relief adding a first person narrative of
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CIIIIIIII'~ behavior asserting that it is a product of Father's
manipulation and coercion and requesting that the court impose
heavy monetary incentives upon Father to convi"nce him that it is
in his best interest to support c-•'s relationship with
Mother. The narrative recited c 's refusal to stay with his
Mother, each time either walking through Mother's yard back to .
Fireside, or stopping at Mother's house telling her that he was
not staying and leaving and going to the Fireside residence,
c recording w1th his cell phone his actions and an incident
on oecembe r 8, 2013 where Mother fo11 owed ca H to Fi reside,
tried to get him i nto the car with her, which he refused., with
'c r-scor-df nq her, which incident ended wi'th c staying
with Father and Father's girlfriend at Fireside and police
refusing to enforce the. order by retu.rni ng ca T to Mother.
The narrative includes repeated incidents of ca B getting off
· the bus near Mother's resi dence , wa l .king through the back _yards
to Fireside, and not staying with Mother.
on April 8, 2014, Mother filed a petition for contempt
reciting that since entry of the October 1, 2013 order, Mother,
who has primary custody of c , has only had custody of
c for one overnight on December 16, 2013 and that all other
·times conner is improperly in the custody of Father or Father's
girlfriend. Mother recites in this petition that Father pays
Jip service to the order by dropping c off at Mother's.
·. resi'dence every other .s'unday' where, rc-c- gets-out-of-tt-le-- . .
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car, runs to Father's ·girlfriend's residence where Father is
JUDICIA I.
DISTRICT waiting for c Father p icks c up on the street behind
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Mother's residence and they depart. Mother further asserts in
this petition that Father blatantly undermines Mother's role as
a parent and speaks of her in a derogatory, condescending and
otherwise inappropriate manner in an effort to reinforce
c 's unfounded beliefs about Mother. Mother also alleges in
this petition that Father refuses to communicate with Mother and
provide her any information about c••
on 'July 1, 2014, Father .filed a petition for modification
of primary physical and legal custody reciting that c has
not spent an overnight with Mother since December, 2013 and that
·the best interest of ca . I would be served by awarding Father
.physf ca'l and 1 ega1 custody. ·
on July 28, 2014,· Mother filed an answer to the petition
for modi fi cation of custody asserting that Father has acted in .~,
defiance of the October 1, 2013 custody Qrder; that Father has
engaged in a course of conduct designed to deliberately thwart
the mother-child relationship and that awarding custody of
C£J to Father would not be in his best interest. Mother also
in said pleading counterclaimed for modification of the ~ustody
'3
order requesting that the October )(, 2013 order be modified to
limit Father to professionally supervised contact and visitation
of c at his sole .cost reciting all of the allegations made
in the previous petitions filed by Mother and also referencing
the petition for protection from abuse proceedtnq filed by
. ,;;the r ii
,.w.,.,., •••
we's"t"mo".'rei and-·· county-on~"Jamrary·-2-, -201:4-:-1:h-a-t-.-was . . based . . ., . . .
53RO
·on the January 1, 2014 incident wherein c jumped out of the
JUOICIAL
OISTRICT car that he was occupying with Mother and also referencing· the
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January 3, 2014 incident wherein Father brought the loaded Glock
mm firearm and folding knife in his briefcase into the
Westmoreland courity court of common Pleas.
on August 26, 2014, Father filed an amended petition for
modification of the custody order specifically reciting that the
order should be modified because Mother has not exercised any
custody, legal or physical, of c since on or about December
12, 2013 and that c refusing to go to Mother's house for
Mother's periods of court-ordered custody time.
on.September 5, ·2014, Mother filed a petition for contempt
·reciting that c O was to begin school at Neshannock Junior
~enior High School on Augu~t 25, 2014, Neshannock being the
school district that cg Shad always attended, and that
Father, in direct violation of the October 1, 2013 custody
order, enrol?ed cg; in the ·Hempfield school District without
.any notice, ·discussion or other information to MQther, the
school district being in Westmoreland county, the county· in
which Father now resides. The petition further recites that
Father has continued to deny or .coerce, conspire and otherwise
control cg in an effort to deny Mother her primary physical
custody.
SUMMARY OF EVIDENCE
Father was called to testify as on cross by Mother. Father
testified that on January 3, 2014, he brought a loaded gun into
... the .Westmore 1 and .co.unty cou.rthouse :-Ims~-9mm-handg1:m-w-i-t.h- . ._:.
ten lives rounds in it. In addition, he had a folding knife in
53FIO
JUDICIAL
DISTRICT his briefcase. The weapons were in his briefcase from the day
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before when he had come to Lawrenc~ county. He stated that·he
had these weapons in his briefcase Mother has thre~tened to kill
him and c Father stated that Mother :had j~st dragged
c from behind her SUV and he was fearful for his safety and
for c••'' s. He acknowledged that he had these weapons to use
against-Moth~r if necessary. Father carried a gun with him
nearly every day when he lived in Lawrence county. Father
testified that he had·forgotten he had the gun .and knife in his
briefcase when he entered the Westmoreland county courthouse for
the purpose of obtaining a PFA on behalf of c against
Mother. Father does have a permit to carry a firearm. The gun
had:been loaned to Father by a Mr. Lewis who· was fearful for
Father's safety. ·Mr. Lewis felt this way because·of.information
received from Father. Father still feels that he needs to
protect hi~self from Mother.
Father acknowledges that the current custody order of
october 1, ~013 provides for cg s -to be living with Mother,
althoug~ in fact c has been living with him. Fath~r
· further acknowledges completing the student enrollment form for
the Hempfie,.d Area school Di~trict and signing it on August 21,
2014·;n order to enroll conner in the Hempfield Area school
system. Father. acknowl edqed that Mother did not aqree .for him
to do this. on this form the information Father provided was
·'that c lives with him, that Ms. s-is the other
··c:a:retaker··or adul t in the home, Father's-and Ms~··· . ····-
!l3RD
contact. phone numbers are provided with no phone number for
JUDICIAi.
DISTRICT Mother. The form further required information as to "legal
\IRENCE COUNTY
•ENNSYL.VANIA
16
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custody/court documents/special arrangements" relative to which
Father placed "Father". Father explained that he answered that
way because he felt that the current situation constituted
sp~cial··arrangements as Mother has abdicated her role as a
parent. Father felt that he had no choice but to enroll him in
Hempfield because Mother would do nothing to keep
enrolled in Neshannock. Father maintains that Mother has
refused to provide c:•• a p 1 ace to 1 i ve ..
Father. takes c every other Sunday night at 5:00 p.m.
for the custody change but Mother usually is not there.
. .
Father moved to Greensburg in July of 2013. He had
previously be~n a family physician at Family Health care
Partners in Mercer and Grove city and was admitted to the Grove
city Medical center. Father is now the Assistant clinical
Professor of Family Medicine and osteopathic Principles and
Practice at the Lake Erie college of osteopathic Medicine
located at the Seaton Hill campus in sreensburc, Pennsylvania.
Although Father had other opp9rtunities .for teaching, he chose
the Seaton Hill campus because it was the closest to where
Mother lived, foregoing other oppo_rtunities to teach at medical
schools that were farther away. ·
Father te$tified that·Mother lives on Shenango Road i~
Neshanno~k Township, Lawrence county, while Ms. slllllowns a
·residence on. Fireside Drive that is located approximately two-
·te,rth·s of a mi 1 e from Mother' s residence ..
531'!0
JUDICIAL
DISTRICT order, c-
Father noted that subsequent to the October 1, 2013 custody
_was livi_ng with Mother but cm November 7, 2013, he
IVRl!:NCI: COUNTY
11.':NNSVLVANIA
17
Circulated 09/23/2015 11:13 AM
began running away from Mother. Late that evening ran Cllllf
out of the house, in the evening, wearing nothing but pajamas
and a pair of socks. It was approximately 30 degrees with snow
on the ·ground. He ran from Mother's house to Fi reside Drive
where Ms. s ..... was staying. Father was called and told by Ms.
s-that c was inconsolable. Ms. s-was enroute to
take c to a hospital because he was so upset, but Father
spoke with Ms. slllllon the telephone and directed her to
return to Fireside. Th~ police called Father and Father advised
where c•• was. Father spoke. with c••, and Cl 3
·explained that he was upset because of the yelling and screaming
that was going on at Mother's home. Father wen~ to Fireside and
. .
had c sleep at Firesid~ that night. Father had sent Mother
an email telling her where c was a~d that he was safe.
Mother did not come to Fireside to·pick up CQ&lllllllllt Mother sent.
an ~mail indicating that c 's backpack and school items
would be on her front porch, and in fact, Father picked up
c 's things from Mother's front porch on the way to school
the next day at Neshannock.
The next day c refused to leave school because he did
not want to return to. his Mother ' s. Even tu a 11 y, c•• did go
to Mother's house, and she brought him to Father's house .as part
of the custody exchange in Greensburg. ca :Shad been fearful
that Mother would no·t return him to Greensburg for the custody
exchange, but once he was assured that she woulcf ao so., he
53RD
agreed to go with Mother.
JUDICIAL.
DfSTRICT
1£!;NCI£ COUNTY
~NSVC..VANIA
18
Circulated 09/23/2015 11:13 AM
c•• returned to Mother on the exchange day of November
10, 2013. c; was to be with Mother for the week, but on
November 13, 2013, c ;· after school, went to Fireside.
Initially, cu. had refused to leave school that day. Clllllf
had informed the guidance counselor that he would not leave
school because he would not go with his mother. Mother was
informed of the situation and sent the maternal grandmother to
attempt to get c c refused to go with her~ The
school called the police, and ·an officer Sikes was dispatched to
the school to talk to conner. .c was taken to the po1 ice
·stati-on.. Eventually the police officer drove cg to
Motheris. c exited the police vehicle, walked past
Mother's house, and over to Fireside.
on November 14, 2013, Father took c to meet with.his
therapi~t, John Moyer, and invited.Mother to attend. Mother did
not attend, and on November 15, 2013 Father took CSL 8 to
school at Neshannock. After school on that day, ca a went to
Fireside. Father emailed mother with the information as to
where c was and invited her to go pi ck up c ( J, with
Mother directing that Father. bring c to her.
on November 18, 2013, cg I. got off the bus from school,
walked passed Mother's house, and went to Fireside. Father
emailed. Mother as to where cg I was. 'The same· thing
essentially happened on November 19, 2013, and again on November
·:20, . ·2013, and again on November· 21, 2013. on Friday, Novembe·r- . ···-
53RO
22, .2013 c went to Mother's after school. That day was a
JUDICIAL.
DISTRICT custody exchange day for ca a to be returned to Father.
RltNCC: COUNTY
NNSYI-VANIA
19
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c g called Father and said he would walk over to Fireside
because Mother was refusing to drive him over. Father could
hear. yelling in the background. Father went to Mother's home,
with police present, and c•• came out of the house and got
into Fathe~'s car and Father and c returned to Greensburg.
on Sunday, November 24, 2013, Father states that he .made an
effort to return c- to Mother, had driven c•• to Lawrence
county from Greensburg, Jet c•• out of the car at Mother's
whereupon· c i a knocked on the door but there was no answer.·
C15E then went to Fireside. Father sent Mother an email to
inform Mother where c .... was. Again., c.., walked to·
Fireside on November 25, 4013. on Thanksgiving Day, November
28, 2013, Ctllllllll' was to b~ with Father for Thanksgiving. At
8:00 p.m., the exchang~ tim~, c was dropped off at Mother's
but CIIII' walked to Fireside. The maternal grandmother
·followed c ..... back to Fireside in her car. Father returned
to Fireside.
on·oecember 3, 2013, the first day back to school a~er
Thanksgiving break, after. school CB S again went to Fireside.
The same scenario . repeated itself for· the rest of . the week,
whereby cg '7 would go to Fi reside instead of to Mother's
residence. Father offered that c could stay overnight
----u ...~.,riday n.ight and attend a counseling appointment with Mr. Moyer .-'•
·the next day.·. However 1 C had gone to Mother's house after
53RD
school put Mother was not there and the door was locked so
JUOICIAL
DISTRICT
.VR£NCE COUNTY
•r,;NNSVL.VANIA
20
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c & q went to Fireside. Mo.ther did not come to Fi reside to get
c:••on December 8, 2013, Clllllf again went to Fireside after
s~hool. on that day, Father received a.telephone call from .
officer DeWitt of the Neshannock police advis-ing that Mother had
missing· child. · At the time,
par tarnccnt+nued
c-
gone to the police ·station about 8:00 p.m. to report c
through the week.
was at _Fireside.
on December 11,·2013,
This
as a
c~ept to Fi resi d~ but that eve_ni ng he had a band concert
also. c-
at Neshapnock Junior High school.
left
·contend~d that Mother ~ad left without
Mother attended the concert
the band concert with Father.
Clllllllf as
Father
CIIIP was
suppose~ to stay with her that night. As with each of.the
foregoing events, Father documented all these matters with
emails.
Fattier gave testimony that explained the same pattern of
Cllllllfgoing to Fireside until December 16, 2013. · on that date,
ctllllll did go to.his mother's. cllllf was on the phone with'
Father talking about a school ·project. Father-could hear Moth~r
in·the background making comments. Family members came to
Mother's home that everrinq , Afterw_ards., Father explains that
'llllll]f began to feel uncom:ortable and called hi~ saying. that he
---1
-states that c-
was afraid to stay the ni.ght and was going to run.
called him at varfous ·times during the night
Father .
until a time close to midnight when he ca1led one last time . .. . - .... - . .
53RO
asking if Father felt sure that he would be ok. The next
JUDICIAL
DISTRICT morning·Mother drove conner to school. The next day, cg O did
,'IRll:NCE COUNTY
'ENNSYLVANIA
21
Circulated 09/23/2015 11:13 AM
not go to Mother's but went again to Fireside. on December 17,
2013, when c~wen~ back to Fireside, ·he announced that he
was never" going to his mother's again.
Father's subsequent testimony continues with the same
ri tua 1 of c... con ti nui ng to end up at Fireside. on ch ri stmas
with Mother, with
Fireside.
the result that c-
Day conner went up to Mother's door, had a brief conversation
left and went to
c- on January 1, 2014, c-wa-s dropped off at Mother's.
left Mother's and went to Firesi"de. This time Mother
drove to Fireside fQllowing c He got into Mother's
vehicle. They drove back to Mother's home. He got out again
and ret'urned to Fi.reside a second time.· Mother and maternal
.
grandmother followed c back to Fireside again .• After an
exchange, clllllllllf got ·b~ck into the car. Mother did not return
to her home but drove in a different direction with the result
that, at a traffic l.i ght, c exited the car. Mother tried
to stop cg ?-with the result that ca ripped his pants, but
was able to exit~ C•tlll.., hid behind a convenience store,
called his father, and was in fact picked up by Father. The
police arrived shortly thereafter .. Father then.filed the
· .foregotng referenced PFA in Westm~reland county, which. was
dismissed. As a result of the PFA proceedings, Mother could
:· have no contact with • c until the PFA was dissolved on
----H·---,
:February 5, · 2014.
on ._.February 5, 2014, Father dropped· c••off in the
53RO
JUDICIAL
DISTRIC'r driveway of Mother's home, and ca 1 immediately ran to
WR!l:NCE COUNTY
•r.NNSYLVANIA
22
Circulated 09/23/2015 11:13 AM
Fireside. Thereafter, the same process continues whereby CIIIIIIJ
refuses to stay at Mother's, and after school upon being dropped
at or near Mother's home goes directly to Fireside with Father
continuing to document to Mother by email where CJ • is
located. At each scheduled custody exchange thereafter, the
same pattern continued wherebx c would be dropped off at
Mother's, Conner does not stay, and goes to Fireside~ on many
of these occasions, Mother would not be at home. All of these
incidents ~hereby cu S iS'' dropped off and does not stay are
documented by ·Father in emails. This circumstance had continued
up until the time of the most recent court filings .. During ~11
this time, according to Father, ·Mother does nothing with respect
to c 's needs as it relates to education, hea'Ith care, or
extracurricular activities:
No contact occurred between Mo~her and Father relative to.
c and Mother had ·no contact with c during the summer
of 2014. Father initially thought it might be beneficial to·
enroll c•• in cyberschool in the event that things changed
but eventually decided to enroll him in Hempfield. Father
invited Mother to a band concert at Hempfield on October 27,
2014, but Mother did not attend. Mother has not participated in
any activities at the Hempfield school. Father testified to
c 's exceptional performance at Hempfield and his being
engaged in various extracurricular activities from which he has
---- ..U
benefited. c .is in the. eighth grac1e,-a:n-d-ts-i·n-acl·van-Gsd--_,_
531'10
classes. Mother has consistently refused to sign any documents
JUDICIAL
015,-RICT relating to c 's education at Hempfield.
¥Rt!Ner. C:OUNTV
'IZNNSYI.VANIA
23
Circulated 09/23/2015 11:13 AM
Mother testified that she is five feet, two inches in
height and weighs approximately one hundred thirty pounds.
Father .;s approximately six feet, two or three inches in height.
Mother denied that she has ever threatened to shoot Father or to
have ·ever heard him make that allegation in the past. In fact,
she has never touched a firearm in her life. on the.other hand,
Father has threatened her. In 2012, Father told Mother that she
deserved to die. she just learned in the course of these
-
proceedings, the day before her testimony, that Father was
carrying a loaded firearm at the custody exchanges. Mother
. .
· testified that she has never done anything to c•• in words· or
deeds that in any way conveyed that she would harm him and in
fact she has never physically harmed him.
The. mother described the.standard exchange since October 1,
2013 by explaining that Father pulls .into the driveway; cg 7
comes to the door, either ringing the bell or ~nocking; Mother
opens the door; c holds up his phone and records, stat,ng
"I am j ust he re to te 11 you that I am not staying"; cg 7 then
walks through the front yard between the houses and through the
back yard holding his cell phone up the whole time recording and
walking·over to the Fireside residence. Father sits in the
driveway for a minute and then backs out and drive~ over to
Fi reside.
illegal drugs, .although
•.. _
Mother is employed as a dietician.
-....
she has·been
.. _
Mother has never used
accused of such by .Father.
S3RO
Mother denies that she has abdicated her respon~ibility as a
JUDICIAL
DISTRICT parent. she did not see any need to respond to an email where
0'.NCE COUNTY
l'INSYL.VANIA
24
Circulated 09/23/2015 11:13 AM
Father wanted c•• to be in cyber school because c•a:111.. was
already enrolled in Neshannock where he had always gone to
school and where he had done very well. ~while in Neshannock his
grades where A's and he engaged in activities such as soccer, .
baseball, took flying lessons and played a musical instrument.
Mother noted that ca ff had taken flying lessons s ince he was
about ten years ·of age. The maternal grandfather would often
take c••to the flying Iessons as c••enjoyed a close
relationship with, until the flying lessons were stopped about a
year ago at Father's insistence. c was very interested in
the flying lessons and Mother would participate with c in
the lessons as part of it included classwork with which Mother
helped ca R.
Mother noted in her testimony that when Father calls and
spends long ·periods of time with c on the phone, c111111•
will thereafter be distant, reserved and avoid h~r. When c1111111•
is ·out of his father's sphere of influence then he is good and
that he is happy, engaged and interacts with Mother s~ch as
wanting to watch a· movie. c•• is very involved with h+s
friends when he resides with Mother. Mother denies that she had
no plans for.c•• for school as the reality is that c•• is
to reside at her house.and he would normally go to. Neshannock.at
the start of the school year just like he has done every other
year. There is no reenrollment process to continue at the same
schoo l, she found .out. that Father had made other school pl.ans
5)RD
for c by called Neshannock on the first day of school and
JUOICIAt.
DISTRICT learning that he was not there. She does not go to C 's
i'!ltMCII: COUNTY
l'INSYLVANIA
25
Circulated 09/23/2015 11:13 AM
functions at Hempfield because she does not feel that·it is wise
to be near Father, as she is deathly afraid of him. she cannot
sign forms verifying any reading assignments as she has not been
able to interact with conner or to even speak to him about it.'
she testifies that she can't sign a form saying that c T has
read something when she does not if he truly did it. she has
not .had the interaction with c•• because c••1tdoes not come
to her .house.
Her response to Father's claim that he complies with the
I
order by bringing cg 2 to her house every other Sunday at . '•
exchange time is that she is normally there although she is not·
there every single Sunday because some Sundays he comes and some
he doesn't and in fact she·knows that c will not stay but
will simply ~ome ·to her door and say terrible things; things
that sh~ knows he does not want to say but he will record .her on
his phone for him to tell things such as telling Dr. Chambers
that she had answered the door ·naked, which was false. she does
not go to Fireside to pick-up·c• .. .., after he leaves her.
residence because she knows that c is not going to come
with her. The last time she tried to go Fi resi de before January
1, 2014, she was greeted by the p~ljce and was told she was
under arrest for trespassing. she does not feel comfor tab'l e
attending sessions with Mr. Moyer as she feels that he is I'
----U
manipulated by Father. when she di~ show up at appointments ··,·
scheduled for her by Mr. Moyer,·M·r. ·Moyer falsely ~ssert·ee1that:----- . ...
53RD
the. appointment had·been changed even though her appointments
JUDICIAL
DISTRICT cards show the correct date. When she showed up for her
Rl!NC:5: COUNTY
NNSYLVANIA
26
Circulated 09/23/2015 11:13 AM
orthodontist appointments, she would find out that Father had.
cancelled the appointment. The orthodontist refused to see
Mother without Father being pre~ent. Afterwards, she would be
accused of not parti~ipating. Mother also referenced disturbing
photos on Internet on or. Moyer's website that appear to have
pages of young girls with inappropriate names.
Her ~xplana~ion of the QCcurrence on November 7, 2013 was
,.
that c left her house about 9:30 in the evening after
everyone, including~ , had gone 'to bed. There had been no
issues that evening. About 9:30 on the 7th, c got up to
use the bathroom, and took of down the steps and straight out
the front door wearing his pajamas. There had been no
interaction.with c from the ·time he went to bed until he
le~. He did have access to a telephone .. Issues.had previously
. .
risen with respect to .cs 5 using a telephone.to have
conversations with Father. Generally after he would hang up the
phon.e with his Father he would have a tantrum. Approximately .
two years ago, after a conversation with Father, Cb 7 hung up
the phone and then began screaming saying that Mother was going.
to kill him. on this occa~ion, after c ran out the door in
hi's pajamas, Mother ·called the poli<=e because it was dark and 20
to 30 deqrees in temperature. when cg 5 would leave her home
previously, he typically would go to Fireside. The police
~ventually contacted her and asked her to come to the police
station, which ·she did. At . the po Ii ce s-nrr;-n-rr,she-wa-s--me:t-w.ith.----·-.-·
53PID
two police officers who advised that c was in cranberry
JU,DICIAI.
OISTRICT with Ms. sichak. she then received an email from Father who
,WRl!:NClt COUNTY
l'f;NNBYI.VANIA
27
Circulated 09/23/2015 11:13 AM
advised . that he had c and would put him to bed. she did
not at that point try to pick up CtlllJ because she did not want
to be accused of abusin~ him, beating him, dragging him or that
kind of thing. she next saw c at the police station the
next day but c refused to come home with her.
Mother is of the opinion that the situation can be
_s_
rectified if Fi-reside drive taken out of the picture and that
the interaction with Father and Ms.
elimin·ated or stopped, and if that were the situation, C£
needs to be
f
would be back to his old self within a week or two.
r, 2013 order came out
Mother notes that when the October
there were approximately 'two ·solid weeks that ca 8 did not
have to go to Greensburg and c:•slll•was fine with the situation.
I
When it was time for her take.c to his father's he was not
in any hurry to go and in fact did not want to leave before the
~equired time and referenced that he had bad stomach ache and
didn't feel good.
c was returned to her on Sunday, and he was fine
through the week. Everything was fine·until the event of
November 7, 2013. Before that, c•• was warm and
· affecti onate , · -they did things together, he had friends over and
.he was doing well at school.
Mother denies cursing, screaming and saying derogatory
:things while he would be on ~he phone with.Father .
. . . . , · · Mother did not .see c on his 1 ast . birthday, February
531'10
· 10, 2014, because ca I doesn't come to her house. The last
JUDICIAL
DISTRICT -t ime she saw c•• before his birthday was January 1, 2014.
VRl!NCI!: COUNTY
G:NNS-Yt.VANIA
28
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Mother has his birthday presents and his Christmas presents
and he will get them when he comes ·home.
Mother does not_go to the Hempfield school activities
because she is fearful of Father·and Ms. s .......
Mother went to the last Christmas concert at Neshannock
although he was. supposed to be at her house but was not. Mother
did not;" see c••s• over. the chri stmas ho 1 i days of 2014 at a 11 .
Cg 3 says to her when he is dropped· off that he just doesn't
want to stay; that. he can1t stay; that he is not. going to stay
here; and that he is afraid of her. He speaks 1ike a robot,
holding his phone recording, stating "I am afraid to stay here,
I am no~ staying here, I am afraid to stay here." she indicated
that she has never seen another human being act that w.ay.
At.the christm~s concert she went to the band room to say
hello to c•• but he would not even look at her.
Mother testified that he has never authorized c•• •• to be
at Ms. s~'s house on Firesjde nor to be living with Father
at Greensburg other than the time called for in the custody
order. 'Mother has not authorized C••• to be enrolled in the
Hempfield school District.
on January 1, 2014, c•• was dropped off at 8:00 p.m. by
Father. Father pulled out of the driveway and left. c••
walked through.the yard and went to Fireside. The maternal
· · · · ----·-- grandmother then picked Mother up in her car and they followed
. , n tnec_a_r_, -----·- ---
C•£•• to Fi reside. As ·they were
they attempted to talk to him and eventua 11 y got into the
53Rb
JUDICIAL
OISTRICT car. They pulled back into Mother's driveway; but as soon as
V!tENCI!'. COUNTY
ENNSYLVANIA
29
Circulated 09/23/2015 11:13 AM
they did, c•• opened the door and took off again towards
Fireside. Mother and maternal grandmother followed c•&llllt
again. They ~ent back to Fireside. went back into the
front door and was there for a minute and then Father came out
of the neighbor's house and went into the Fireside.residence.
c then came back outside and got into the car. They
traveled out of Fireside and attempted to go to the home of
Mother'~ girlfriend. when they got to a red light, Mother heard
c 's· seatbelt unct t ck and feared that c was going to
jump out of the car. Mother tpld maternal grandmother.to go so
that cm s would not be able to jump out. c opened the
door and Mother turned to grab his leg so that he would not jump
out. c yanked his leg and his jeans ripped and c••
jumped out of the car. Mother then called the police.
Grandmother turned the car around and they attempted to· look for
c but could not find him. c was later found at
Fireside. -Father was at Fireside when c turned up there.
Mother learned that c had told his father that he
wanted to stab her when she received medical records from Dr.
stroyer, Cllllll's physician, which indicated that ctllllllt's
statement that he wanted to stab Mother was made appr-ox'[matie'ly
one year prior to the time that she obtained the records.
Father had never talked to Mother about that statement. At the
time the statement was to have been made, c had been coming
to Moth"~r·' s house· and ···h~vi ng .
regul.~r- contact wi.th her. Tne ···--· ----
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record actually indicated that Father had made that report to
JUDICIAL
DISTRICT br. strayer, not cf/1/1111111.
"'Rli:NC~ COUNTY
•l!;NNSYLVANIA
30
Circulated 09/23/2015 11:13 AM
on December 16, 2013, c got off the bus: and wa 1 ked
into Mother's home. c 5 had not been with her for over a
inonth prior to.December 16. on December 16 , 2013 , c - F did
his homework. It was a family member's birthday. After Cg F
did his·homework, he played a video game. Mother's niece and
nephew were over and cg 7 interacted with them and with the
maternal grandparents. c was his old self and was fine
with Mother. He was warm, affectionate and loving. cs ?
spent the night at Mother's on December 16, 2013. The next
morning, Mother·drove c to school. He was fine. Mother
asked cu J if would be coming home after school and ca 7
said "Yes". ·However, cu p did not come to her home after
school that day and the next time Mother saw ca ff was on
January 1, 2014 when the unfor-tunate incident with cu R
jumping out of the car occurred~
Mother tries calling c on the phone but he doesn't
answer •.
ca S has a pet at Mother's home. It is a ~og named Rex.
c always had a good relationship with Rex. Rex slept on
. .
the bed with c However, when ca 5 's re 1 ati onshd p with
Mother began to deteriorate, his relationship wi~h Rex also
deteriorated.
Mother denied ever being unclothed at .any time that she had
opened the door for c She also denied that a video exists
---IJ
showing that she had no ·clothes·.on. as the tim.e 6eing re'f1!re·n·e&1-
33RO
was the.'time. when she answered the door and had a nightgown on.
JUDICIAL
DISTRICT
NRENCE: COUNTY
•G:NNSYt.VANIA
31
Circulated 09/23/2015 11:13 AM
Mother explained that. she and the maternal grandfather
stopped t~king c to the flight lessons after c accused
her and the maternal grandfather.of bashing his head off the
wall or.otherwise attacking him in November. of 2012.
When asked why Mother has not attended to any of c 's
needs, physical, mental, educational· or otherwise, Mother
re~ponded that it is because Cl will not talk to her and
will not come to her house.
Delores Dicola, the maternal grandmother, testified that
'
C]p zr was a perfect child until things began to change in 2012.
The change-inc 's attitude ~oincided with long telephone
calls from his father. These telephone calls would be hours
long. ·
Before the phone calls ~·•a...•would be his normal loving
·self and then afterwards he would become sullen, non-talkative
and belligerent.
The maternal grandmother also described the times that
ca would be. dropped off at the custody exchange and would
not stay.. she described that CJ p would get out of the car,
not even come to the front door, go to the right of the garage
and around to the back of the yard 1,.1p to the next street and
towards Fireside. The.entire time he would be holding his phone
video recording the event. At times. the maternal grandmother
would yell out that she loved him and· needed to see him and he
would just keep videoing and. keep ·waTl<·ing. Th-e-·ma:te·rna=t,----
grandmother noted tha~ in the last few months he started coming
~3RD
JUDICIAL.
DISTRICT to the door. He would open the door, or.ring the doorpell or
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knock, and he would just state that he was not staying and
leave. c is now different in that he won't talk, he stares
and continuously videos.
The witness also corroborated Mother's t~stimony as to
c being fine for the two-week period after the October 1,
2013 custody order was issued and was· sullen when he had to be
returned to his father.
The witness then described seeing him on December 16, ·2013
when he came to Mother's house and stayed. It was the birthday
of maternal grandfather and a party was held. c was fine,
'he interacted with his cousins and ·played video games. The
·witness did not see c s again until January 1, 2014. The
wi tness: then· corroborated Mother.' s version of what occur-red on
January 1, 2014 when c kept leaving Mother's residence for
Fireside and eventually jumped out of her car when stopped at a
stop light.
The witness testified to the close relationship that CIII ..
enjoyed with her husband, wherein c referred to him as
"Pop". They did everything together and went everywhere
together. c would rather be with "Pop" than with anybody.
Things changed after the incident that led to the PFA and the
accusati·on that her husband supposedly beat h i s head on the wall
or that·he attacked him. since that time, the maternal
-.
'grandfather has seen c only a couple of times. one ti.me
was the ·bi r.thday pa.rty .. of December 16, 20-..,. 1'3-:r--. -.----------.J
l53RO
when Father retook the stand, he descriQed his version of
JUDICIAL
DISTRICT the events of December 16, 2013, wherein he related that he had
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received a series of telephone calls through the evening from
c distressed and th.reatening to run away from his Mother.
Father stated that he was able to get cg p calmed down but
after that he flatly refused to return to his mother's.
on Janu.ary 1, 2014, he was able to persuade ca I to go
with his mother. After the )anuary 1, 2014 event wherein c:••
had removed himself from the maternal grandmother's vehicle,
c:•- consistently
,t .
refused to return to his ·mother.
He· summarized that he continued to take c· to Mother's
home for the custody exchanges.but·eventua11y Mother even
stopped being at home.
Father testified to informing Mother of all school
activities bu~ she has ahosen not to appear at any of them. she
was specifically
.•
informed of c 's band concert held on
December 9, 2014 and she.did not appear.
Father continues to take c:t111111• to Mother'~· home for the
custody exchanges. she is general~y not there, and he confirms
having brought him there with an email each time.
on November 23, 2014, c was dropped·off and Mother and
maternal grandmother were there·, there was some discussion at
the doo~ and c left, going back to Fireside again.
Th~ last custody exchange before the hearing of January 12,
2014 was on January 4, 2014. Father brought c f ~o Mother's
·-home~ Mother was not home and they returned to Greensburg.
----J
Father testified that he encouraged- cg pi] to llaVec:ontact __. -.
!S3RP
with his maternal grandmother. ca I is adamant that he will
JUDICIAL
DISTRICT have no contact with his maternal grandfather. cg I sent the
!VRl'i:NCE COUN'TV
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maternal grandmother a card inviting her to lunch at the olive
Garden in cranberry on a Saturday in necember , 2014. The
maternal-grandmother responded with a text message indicating
that she would look forward to lunch. The lunch meeting between
c 17 and his maternal grandmother did occur and by all
accounts, both enjoyed it.
Father
. testified that c '
5 continues to excel in schoo'l
and is starting to switch over from trumpet to playing the tuba.
In addition to his band activity, he is in soy scouts. ·.Father
described c presently as happy) getting .alohg well in
school, getting along well with his frien~s, and that he is one
of the most pleasant kids you could meet. He is helpful around
the house and does chores. He excels academically. He no
longer has the panic attacks that he used to have while at his
mother's house.
The maternal grandmother retook the stand and testified as
to the luncheon that she had with c It was in November,
2014 before·Thanksgiving. c sent her a card in the mail
inviting her to.go to lunch with him in cranberry. The card
_requested that she RSVP by phone. The card indicated that j~st
she should go. she responded that she would mee t him at the
olive Garden in cranberry at noon on the appointed Saturday. He
was by himself an~ the luncheon lasted one.hour. The maternal
grandmother attempted to bring up the mother but c ·said he
was ·not' there to talk about -h'i s mother. c dfcl ask a:lnmt-:--·--:-
53RO
his dog, Rex. The lunch~on ended well. Father picked c up
JUDICIAL
DISTRICT after the Iunch . The maternal grandmother and cg 9 ·agreed
IRIINC:ll: COUNTY
~NNSVLVANIA
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that they would possibly do it again but c was to get in
touch with her if he wanted to have lunch again .
. On or about December.. 13, 2014, materna·l grandmother sent
cg a by text a picture of her puppy. c 1sr's response was to
question whether Mother stole another dog from another
boyfriend. Grandmother responded .that was not nice and that
c had hurt her feelings. Grandmother next sent another
response :5aying "what happened to the c · I knew? You are
certainly not him. 11
Further response from ca R included ·the
statement that "The c you knew, he has grown up and is
·thinking for himself. I am not going to let anyone abuse ine."
. The maternal grandfather, Johh Dicola, Jr., testified that
he had a good relationship with c from the time he·was born
. ~ .
. unti 1 about October or November of 2013. · He and cs 8 did many
things together including go on vacations together. c was
interested in. the maternal grandfather's hobby of restoring Jeep
vehicles and worked together in the garage often. He and ca I
took flying lessons together. The witness testified that he
loves c.. 111.ana there is nothing that.he wo~ldD't do for him.
The witness has not seen c since·oecember 16, 2013.
Mother had a party at her ho~se with the other·son and his
children and some fr+ends and c was there. Cc£ I was
fine. They had cake and ice cream. The matern~l grandfather
has. ~ot had any contact with c since that time. A~er
··that, 'c was different. He was . fearfuT-·ana not~hrsame--·--- -·····
SJRO young man that he knew a month earlier. The witness indicated
JUDICIAL
OISTRIC'l"
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"iNSYLV ... NIA
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that c•• seems to be· replicating his father's personality and
mannerisms.
The maternal grandfather was also asked.about the events of
November 25, 2012 which led to the PFA proceeding against him.
that wa~· dismissed •. The witness.explained that he was at home
when Mother called him and asked him to come over to the house.
He could hear that c:t11111•was screaming. When he arrived,
c•••ran into his bedroom and was screaming. c•• was
screaming "Don't come ~ear me--you're going to kill me. The 11
witness pushed the·door.open and he was holding c: .. ...-'s legs
while Mother was ~olding c••'s arms , C••• was flailing all
over the place and his head was bouncjng on the carpet as he was
flailing. The whole event took about five minutes.. Before this
event, there had never been any confrontation. in any way between
c and his maternal g~andfather. . same night,
That very
c a S ca 1 med down. He stopped his ranting and fl ai 1 i ng and the·
witness let go of his legs and Mother let go of his arms.
cg went to the bathroom, then came out and said 'he was
hungry. He ate a bowl of cereal and then went and sat on the
couch. The witness and cu 7 then had a discussion about a new
Jeep vehicle that t~e witness had purchased and aske~ him if he
would like to take a ride in it after school on Mpnday night.
c aid, "That wou.1 d be good' 1, .and the next night they did
take a ride .to the Hermitage Dairy Queen and got ice cream. .·.
-----. ·····------;--:--------------
... " Ray~ond Ki 11 en .. testi.fi. ed. f-!e i s·-t..-he_g_u_i aance counse1<5r.~-····.--·. : ·-····:
.
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Wendover Middle School, which is a part of the Hempfield School
JUDICIAL
OISTRICi District. On· the first day of school, c111•z• came to his office
IRE:NCS: COVNTV
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and wanted Killen to know that he was living with his dad and he
was worried thftt he was not going to be able to continue living
with his dad. The witness also teaches a guidance class that
meets o~e out of every six school days. The witness also
assisted c when he was dressed as a school Spartan for open
House. c is doing fine in his class. There is a nice
group of kids that cg 5 is friends with. cg f is doing very
well in school. He achieved distinguish honor, which is ninety-
six percent grade potrrt: average or higher and he is on track to
do that.for the second term as well. The witness had made notes
of what··c- had .said to him about what is going on with him
·at home. The notes indicate that c"" said that he lives wit~
his dad but mom. is fighting for custody; that he does not want
to l~ve with mom; that she has become viole~t w~th him,
screaming, calling him ·stupid, tackling him when he tries to
call his dad and that cvs has been involved and has done
nothing. The notes further indicate that the maternal
grandfather broke down the door to·his room and tackled him and
has hit'him.
The witness did indicate that he found it somewhat unusual·
that c came' to him to explain what was goi_ng _on with him on
that first or second d~y of school because CIIIIIII did not yet
know him and did not at· that poi'nt have a comfort.level with
him.
· Robe·rt Raymond Ko11 ar tes·t'ff, ecr:--Re,-s--a::-'te-ache-r-i-n-the--~- .....
53,tO
JUDICIAL
DISTRICT
WRli'.NC:rt COUNTY
and c-
same middle school as Mr. Killen.
is one of his students.'
He teaches American History
conner is doing "superb" in
..
.•
"El'INSYLVAl'IIA
38
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his class. He scored a ninety-eight percent the first quarter
and will get a ninety-nine percent for the second quarter. He
is polite and he is willing to add to the conversations that
invo~ve dialogue over historical topics. He asks a lot of
. .
questions and seems to be enjoying the class.
Dr. Bruce chambers, a licensed psychologist, was appointed·
by the court to perform a custody evaluation and was·called to
testify. or. chambers has impressive qualifications having
performed over 600 child custody evaluations and is involved in
training child psychology fellows at university of Pittsburgh.
He has provided expert reports and testimony in a number of
courts in the commonwealth oi Pen~sy1vania. He holds a Ph.D. in
Human Ecology but not in Psychology. At.present, or. chambers
does not have a clinical practice, only performing forensic
work.
In performing his evaluation, or. chambers met with and
observed Mother, Father~ c...-,, and Ms. stllll. He also
reviewed the three previous custody evaluations that were
conducted in this case. He conducted psychological tests of
Mother and Father and found no evidence of psychopathology,
although he did fi"nd that both parents have personality traits
that compromise both parent's capacity to cooperate a~d to work
·in the child's best interest.
· or ; Chambers found credible cg 's statements to him that
.. ··--·-----·-·-H---
·:Mdthe r had a temper and expres-sed her anger and l,ad"-b-e-en-abtrsive-·- --
53RD
toward him through the years, causing ca: W to have trust
JUDICIAL
DISTRICT issues with Mother and further noting that or. Moyer had
:ENC!C COUNTY
~NSYI.VAl'HA
39
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indicated to him that there were challenges with trust between
cg and his mother and tjealing with Mother's anger and
expi"'osiveness. or . chambers stated that the anger and
explosiveness of Mother is emotionally stressful for C.. llllllllt
Dr. chambers also testified that ·c is doing well because of
the lessening or removal of the stress.given his current
situation, in that being removed from the stress has helped to
stabilize him emotionally and in other ways as well. Dr~
chambers did not interview c with Mother as he.felt that
would have been a stressful situation for c and he wasn't
seeing c in a.therapeutic setting. or. chambers' opinion
is that·a reintegration occur between Mother and c , but in
a very therapeutic· setting. or. chambers expressly stated that
if c were forced to be with his mother without
reunificati'on counseling; it would be a formula for disaster for
c at this point. Dr. chambers referenced what Ct ? had
told him about what his mother said to him, making him feel
guilty for his preference for his fattier and criti.cizing him for
that, demeaning him and expressing anger toward him. Dr.
Chambers referred to Mother's personality being more animated,
again referencing what c told him ·about anger outbursts and
temper issues.
or: chambers indicated that ·he did not find alienation
because c was able to talk about positive memories of his
---•+---
. relationship with ·his mother 'and- was able .. to· taTkabout those-··-.-··--:--
53RO
things. or. chambers indic~ted that when you have a child who
JUDICIAL
DISTRICT has been alienated, you rarely see any· positives· being related
Rl!:NC:lt COVNTY
,NNZYI.VANfA
40
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by the child. It is usually a black and white situation; one·
parent's all good, one parent's all bad. Dr. chambers said that
was not ~he case with conner, h~·recalled some positive memories
not only of his mother but his interactions with his
grandparents as well, which lent more credibility to his
statements about what had· occur-red. or. chambers'
recommendation is· that ·Father be granted full legal and physical.
custody of C•IIIJ and·that there be reunification counseling
...
with Mother.
on cross examination, Dr. chambers conceded that it did not
occur to him that· the· allegations made against Mother had no
evidentiary basis and that the things that are being·said about
her now.are bogus. or. chambers also conceded on cross
examination that if the things that c says happened did not
happen, then everything that cu 5 is saying and doing can be
the result of his father coercing·him to do it; that if those
things did.not happen, such a conclusion would only make sense.
or. chambers. al so conceded that if c 's statements and
expressed fee 1 i ngs are the product of his father's coercion,
then such ci rcums'tance would be emotionally damaging as well.
or. chambers ·further conceded that if all of the behaviors that
ca has related to a 'number of professionals throughout the
years are total fabrications then there are serious issues with
alienation. However; or. chambers noted that he assessed for
"the usual alienation +ndi cator-s and. they are not tfiere.-or-;--- . . ....
SJRD chambers further conceded that if c is sayi ng and acting fn
JUOICIAl.
DISTRICT a way that is devoid of reality in that his running away from
:11:NCI!: COUNTY
iNSYLVANIA
41
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his mother's house is simply a setup by his father and all of
his manifestations are something that his father has put him up
to, then that circumstance would be a bad situation for Ctll..,
. .
or. Chall}bers further conceded that if none of the-things that
ca H says his mother was doing actually occurred, then that
circumstance supports the hypothesis that the present
cir~umstance is hi~ father's manipulation, contrive~ in
..,
coercf ori. or. chambers clearly found credible cg tJ''s
statements that he remembers his mother yell_ing at him and
screaming, particularly around homework issues, that she did not
have patience, that if he asked.questions, after screaming at
him, she would just do his homework and that the screaming and
yelling esca'lated over time .and eventua'l ly led to the squeezing
of the arms and such things and that t~ese issues had been going
on for a long time. Dr. chambers·also concedes-that the anger
and the~behavior i~sues that he attributes to Mother are all
based upon what c S has told him and what or. chambers
believes he has told others as well. or. chambers
. further
,,
clarified that the major factor in his mind is Mother's reaction
to ca ?s desires to live with Father and also her other
temper and frustration tolerance-issues that Mother has had that
has imp~cted the child. or. chambers further noted that if he
assumed hypothetically that c••'s concerns about his mother
were unreasonable or an overreaction, that would affect his
op.inion about the effect of r~turn, ng w--h;-s-_mothe·r-~-t-hout-ci: . · · ---- _
53Ro ·therapeutic setting, although the witness further stated that he
JUDICIAL
OIST~ICT does not think they are unreasonable. or. chamber also agreed
IIINClt (;.QUNTV
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with counsel for Mother that if c 's views are unreasonable
and what he says about his mother are not true, that it would.be
absolutely essential for ca 's short~term and long-term
development for the cause of that view of his mother to be
excised, to which Dr. chambers responded, "Of course."
Dr. Martin Meyer had been appointed by the court to conduct
a psychological svatuat+on of ca Q. Dr. Meyers testified that
he is a licensed psychologist in the commonwealth of
. .
Pennsylvania. or. Meyer administered psychological testing and
his conclusion was that CL CT had no ·serious psychological
problems.· or. Meyer also stated that he could·not rule out that
ca :SI •Jas coached. Dr. Meyer al so recommended that there be
some kind of reunification process with counseling between
C[ 3 and his mother. Dr. Meyer was not appointed to perform a
custody evaluation but jus·t to determine the mental -s tate of
.c I . counsel for both Mother and Father asked Dr. Meyer· a
number of questions regarding his awareness of a number of
specific.events which the court will not. here recount in detail·
as the matters asked about did not form the basis of his opinion
that c was not presently suffering from any psychological
issue.
MIIIIE11111 stlllll testified that she resides with Father
and clllll in Greensburg. she is empl~yed as a nurse . '·
,,,,,., _ .anesthetist. she has been in a relationship with:Father for
-approx+mate ly ten years· and they have residea together to·r
53RD
approximately eight years. Prior to living in Greensburg, she
JUDICIAL
DISTRICT resided ·at 130 Fireside Drive located near Mother's home. she
'Rl;;NClt COUNTY
tNNSVLVANIA
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is presently attempting to sell that home and has listed it with
a realtor.
A normal 'day for her is to get up, get ready for work,
usually make lunch for Ctlllll but she leaves before c and
Father leave. Father gets cs • off to school on most days.
she generally is back home before c gets off the bus
because she starts early .. When ca comes home he takes a
break, gets a snack, and then gets to his homeworkright after
that. She, Father and c have dinner.together normally and
either she or Father will do the cooking. she is aware that
·c is involved i~ extracurricular activities inciuding Boy
scouts and band. Her observations are that c is happy,
relaxed and doing well in school and has made friends. cu :r·
-refers .to her as "M• E ... ". She corroborates the testimony
of Father that Father encourages c to go to his mother's
house. she has attended c 's extracurricular activities,
including band concerts. From her understanding, Mother has
m~de no attempts to contact c since January, 2014. she
does acknowledge that CQ has the security access code to her
...
Fireside residence and she does not intend to change that code
so that· c would not have access to ;.t. The witness
acknowledged that she believes that Father does believe that
Mother is a physical danger to C•&IIIII',
Mr. John Moyer, c 's current therapist, testified as to
-----1+----
ci rcumstances under which certa,npn·crto-graphs-appear-e.d-on--a- .. -·_ --·-
53RO
website. that he maintained. It was the witness's testimony that
JUOICIAl.
OISTRICT 'he had no control over these postings. The website related to
Rl!:NClt COUNTY
NNSYLVANIA
44
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his hobby in photography. The website is an archive of his
photography and some personal things as a way of getting himself
known on the internet. ~e considers. himself a semi-professional
photographer. He does not make regular postings to ~his
website. The witness indicated that he has no control; of the
pictures that come up randomly from the links on the website.
c "testified at length, in chambers , havii:i~ .. been
ex~ined at length by counsel and to a limited.extent by the
Court. He is enrolled in the Hempfield Area school District,
Wendover Middle school, in Greensburg. He has all A's except
one B. He enjoys his classes and likes his teachers. He has
·close friends. ·He is in band, having p'l ayed the trumpet but now
switching to tuba. He is in Boy scouts. He is in advanced
honor classes. His favorite subject is ~istory. ~e likes his
teachers better now· than his teachers in Neshannock and he
understands better in Hempfield than he did in Neshannock. His
teachers in Hempfield explain .things better than the ones in
Neshannock. At Neshannock they would just flat out tell him the
only reason they're teaching him is so they can pass the PSSA's.
The teachers at Hempfield actually tell students that they want
students to learn and they want students to be taught and
µhderstand things.
He stated that he is now staying in Greensburg with ·his
·---··- dad; that ·at his mother's house his mother would scream and yell
..... _..,__.
at him wh~;-h``; doing. his honieworkT. ""iTne-a:sketl-he·r-a --···· . ........
53RO
question or if he didn't understand it or couldn't do it fast
JUDICIAL
DISTRICT enough, she would start screaming and yelling at him and
H:Nc;e: COUNTY
NNSVLVANIA
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slamming her hands down on the table. and swear at him and call
him "stupid". However, his dad actually tries to explain things
to him so that he tan understand and finish the problem. He
testified -that his mother would swear a lot, call him an idiot
and say "God dammit, c , why the f-u-c-k can't you do th.e
problem, things like that". He stated that that reaction made
him feel sad and stared. on the other hand, his dad tries. to
-·
explain the problem to him so that .he can understand it. His
best friend at Hempfield is a student that is also new-to
Hempfield and they hang out a lot. He also referenced other
friends he has ma9e at Hempfield. He has had concerts with the
band, including a Christmas concert, a concert early in the year
and a band festival. At open House, he wore the costume for the
school mascot. His mother did not attend the open House or any
of ~he band concerts. He has been active in Boy scouts and has
been on three camp-outs so far, and is working toward assuming a
1
leadership position with Boy scouts. When he lived with his
mother, he wanted to be in Boy scouts, which at the ti·me was
actually cub scouts, but his mother would not let him be in cub
scouts. He described .a number of activities that he engages in
with his·father and Ms. s· He.also testified that he
considers where he is now to be a safe ·environment. He feels
·much safer with his father and Ms. sI I than he did with his
mother. He_ is afr'atd to be with his mother. He now feels less
.stress with his dad, especially when trying to do .a ·pro6lem or
. .
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.helping his dad with something than when he was with his mother.
JUOICIAL
DISTRICT
YRltNCE COUNTY
'ENNSYLVANIA
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In describing what it was like to be with his mother, he
stated that he was afraid to be with her. There wa9 lots of·
screaming and yelling. He stated that before .the custody trial
in 2013, she had stopped being angry and was very nice and she·
bought lots of things for him, but after the order came out from
the custody trial. sh~ became very hostile and scary and
·threatening.·· she would say "I· am going
. to get you.. I'm going
.
to get you and your dad. I am going to hurt your ·dad. I'm
going to hurt you." ·c then testified that she has ·a voodoo
.
doll she has hanging in the kitchen which she has exp1ained to
him very clearly as being.his dad, and she would take the doll
and slam it in drawers and stab it and throw it on the floor and
scream at it and re~ently hung his picture nex~ to it.
Triggering events that would cause Mother to act this ~ay would'
be if c would tell her that 'he wanted to live with his dad,
or if any subject about his dad cam~ up, or if he would call his
dad. c:•• testified that he would ca 11 his dad because he was
afraid of his mother and kept telling her that he wanted to go
to his house. He testified that he wanted to run away from his
. .
mother's house and his father kept trying to calm him down,
saying ~·everything is .: going to be okay, just ca 1. m. down ,
everything is going to be okay, you can stay there, it's going
to be fine, nothing is going to happen." c stated that he
would call his dad all the time especially a lot of the times
· ···----·-···
when hewoul d have'" a hard time -·s,eep,rrg-b·e-caus-e-he-wa;S-a:f-~a.i.d_.of._. _ ·-c·"
!S3RD
what his mother would do while he was sleeping. sometimes he
JUDICIAL
DISTRICT would call his dad late at night because he couldn't sleep and·
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'ENNSYI..Vio.NIA
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was afraid. Mother would
. get angry at him when he was calling
.
his dad, she would order him to get off the phone with his dad.
on one occasion when he-asked if he could live with his dad as
he did not w~nt to live with her anymore, she said "Finet call
your dad." When he pulled out his phone to call Father, she
attacked him for the phone and actually knocked the wind out of
him and he fe 11 to the .. ground. He .was trying to get the .. phone.
to her because she rushed at him·, but he couldn't get .it out of
his hand fast enough and she knocked the wind out of him. when
he was younger, she would wrap her whole hand around his arm and
would squeeze it until he started to cry, .and then let go and
·1augh. when he is at his mother's he has panicky feelings, his
heart starts to race and he feels scared. He feels like he
needs to run but his legs get numb. He then calls his dad who
tries to get him calmed down and usually it works. He kept
thinking that his mother was going to hurt him.
In reference to the event of November 7, 2013, he ran away
because he was afraid of his mother because she had been
screaming and yelling and slamming her hands down on ·the table.
He was very scared·and could not get calmed down so he ran. He
stated that he ran multiple times, at first to Fireside, but
when his dad said he couldn't run to Fireside, he knew he
couldn't stay with Mother so he ran to the police station. He
:would tell the police that he couldn't stay with his Mother
~b.``ause he .was afraid sfi'ewa's'"go1ng to-ffurtlf;m:-,hepoh~r-··--- :·-"
!l!RO
tried to take him back to his mother's, but he said he wasn't
JUDICIAL
DISTRICT going to go back and he wasn't going_ to stay and on one occasion
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he was placed in the Krause shelter. Father picked him up from
Krause the next day.
'.
After the October 1, 2013 custody order came out, he stayed
with his mother until early Novemb~r when he began to run away.
However, Mother had become more ·hostile .and getting more scary
and ramping up, especially when he was talking to his dad to try
to get himself calmed down. ·. She would try and get· him off the
phone in multiple ways which caused him to become more panicked.
c expla~ned that on November 8, 2013, he told the
guidance counselor at Neshannock he wasn't going to go back to
his mother's house after school because he was afraid that she
would not take him to his dad's house like.she was supposed to.
c also ~poke about an incident that occurred on November
13, 2013 where the police tried to return c to his mother's
house and he bolted again and ran back to Fireside. Each time
he ran to_ Fireside, Mother never came to get him. CII! g
testified that his father always told him that he was supposed
to stay.with his mother.
c ~ould routinely ride the school bus to his mother's
house but then he would get off the bus and walk to Fireside.
Neither 'his mother nor his grandparents would ever greet him at
the sch6ol bus. In November of 2012, the Sunday after
Thanksgiving, he came home from school and told his mother that
-··
he
-- _
wanted to live with his dad. Mother became angry and started
--·--· . ··--- ....
yelling at him and called he'rdaoto COrtiEf ..down-:-eu . I saw--hi.S---- . ·-··-
53~0 grandfather's car pulling into the driveway so he ran up to his
JUDICIAL
DISTfflCT room to hide and closed the door and pushed himself against the
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door. His grandfather came up the stairs, kicked open ·the door,
and tackled him to the ground. He grandfather then sat on him,
held his arms down and kept slamming his head off the ground
probably three or four times. Mother came ·into the room and sat
down to watch. cg;; stated he kept screaming for help. The
next day they were at the grandfather's house for dinner, and
the gra~dfather topk c .for . a. ride in the n~w ~eep. and they
. ········· ....
went to get ice cream. c aid not want to say "no" because
he was afraid of what would happen if he refused. After that,
Mother usually cooked dinner at her house and they usually do
.not go to grandfather's house for dinner any more. The last
conversation he had with his grandfather was one where he had
run to the police station. His grandfather had come down to
talk toihim and he sard "Why are you afr-af d of me?". conner
said, "well, because you attacked me'." Grandfather said, "No, I
didn't". Grandfather started getting really angry and yelling
at him. Grandfather closed the conver-satdon by walking out of
the room and saying "You're just a worthless piece of shit
then."· c states that that is the last thing his
grandfather has·ever said to him.
. ca stated· that he would video the exchanges where he
was dropped off at this mother's house for two·reasons. one, he
feels much safer when he records because he does not think his
mother will do anything bad if he's recording and also that if
he doesn't· have .a recording for exac-rproof-, he-doe-s-n2-t-r-emember .. ··--······
ll3RO
e~ery second of the event then people will think he's lying. He
JUDICIAL
CISTRICT figures that if he takes a recording then he can just play the
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recording in court if something happens. For proof purposes, he
recorded each one of the events. c explained that his dad
would ~rive him into the driveway, he would get o~t of the car,
he would have his raccrdt ng on his phone, he would wa 1 k up to
the door, knock on it, say that he's not staying and then leave.
There were many occasions where his mother wasnt t there for him
to actually say that .hs .. wasnot staying so .on those. cccaslons ... he .
would just.get back in the car. c states that on these
occasi ons she never did anything to encourage him to stay.
on January 1, ·2014, he was scheduled to go back to his
mother's house so nis dad drove him to.mother's and dropped him
off. He walked away past her house and hi-smother and
grandmother got into the car and foJlowed him. His grandmoth~r
was driving: His mother was in th~ passenger seat. CM pr got
back into the car. They drove back to the house and he got out
of the car again and ran, and got back to the road leading to
Fireside. His grandmother and mother followed again in the car.
They said things like "The judge can't wait to hear this.
You're going to go to Krause. You're never going to see your
dad aqa+n . They' re going to put you fn foster .care , The judge
can't wait to hear this." when he got back to Fireside, his
-father told him to get back in the car. c got back into
the car and his. grandmother star~ed driving again. He noticed
-that his grandmother had not made the turn that would take them
-back to· Mother's house. - He asl'lllltNC:P: C:OUN"l"Y
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until 1:00 a.m. on and off. He described his breathing as
shallow, breathing really fast, his heart was racing and his
throat was throbbing and his face got ··real hot. The next day he
went back to fireside and did not return to his mother's house.
He continued to go to Fireside from the bus.
The next video is the one where he indicates that mom
appeared at the door undressed. He describes tha~ he is holding
the camera, and his head is further left of the camera. He can
see around the door and could see most of the right side of her
body. He could not see any clothes on her shoulder or anywhere
around her neck or anything and saw the top part of her chest,
~he side of her chest and the in~ide of her knee and leg and
there were no clothes on any parts of her body. He stated that
he was completely startled when she answered the door naked.
Cdt I I says to her that I'm coming to invite you to go to
counselin~ with me. He gave her an exact date and time that she
was to go to counseling with him. The date of this event is
November 23, 2014 (obviously meaning 2013 given the timeframe of
everrts).
... c417 .. stated that h1s mother was never willi~g to go to
.counse'l inq with him, his dad 'encouraged him .to -reach out to
Mother in other ways such as g~ing to lunch or just talk on the
porch. He ~o~s describe the lunch with his grandmother as a
·pleasant event. At the end of the lunch he told his grandmother
~that if she Wanted ·tO have lunch agai nshe--CO-ulelsena-him-at·ext·:··· -:-··
S3FU>
or call him and he give her his phone number. After that
JUDICIAL
OISTRICi·
•Rl!:NCE COUNTY
EN,ooO_.
CONSIDERATION OF BEST
_
INTEREST FACTORS.·.--- ,. ,,,,, ··-···
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rn a custody case the primary concern is the best interests
JUDICIAL
DISTRICY of the child .. As stated in saiotz v. Rinker, 902 A.2d 509, 512
(l'!l:!:NCI!: COUNTY
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(Pa.super. 2006), "The best-interests standard, decided on a
case by case basis, considers all factors that legitimately may
have an effect upon the child's physical, intellectual, moral
and spiritual well-being." Cf. Arnold v. Arnold, 847 A.2d 674,
677 (Pa~super. 2004). The court is required to consider the
bests interest factors that are set forth in 23 Pa.c.S.A.
§5328(a)(l-16). The court notes that these factors were
addressed in the proceedings before·Judge Piccione which
culminated.in the October 1. 2013 custody order. Although this
proceeding constitutes competing petitions to modffy that
~ustody'order, this Court must conduct an independent inquiry
:into the statutory fact~rs enumerated in §5328 and cannot simply
incorporate by reference the findings from the earlier decision.
-see M,E.V, v. F.P.w., 100 A.3d 670 (Pa.super. 2014). section
· 532&(a) spect f'lca'lIy provides as follows:
(a). Factors.- In ordering any form of custody, the court
shall determine the best interests of the· child by
considerin~ all relevant factors, giving weighted
consideration to those factors which effect the safety of
the child, including the following:
....
(1) Which gart~ is more likely ~o encourage and
permit frequent and continu1na contact between
the c6ild and other pa_ty?
Mother was able to exercise ~ustody of cllll from February
2013 unti 1 ·, ate November .of 2013, as c ... began refusing to go
· · · · . · · · --
.
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· --to--Mo-the·
. ,-:,·:· . .•. · ·. r-t,s--··heme---s
. .
20.13 was i ss~·ed. Father testified
must see his mother and comply with the court's order.
that he te 11 s C-
ho r.tl-Y---af.ter. . -.th.e.-.cus:to.dy_o_r:.de.c_Qf. __ .Q5;;_tobe.r _ l r... -
that he
However,
__ .
...
DISTRICi
the court finds that Father's attempts to enforce compliance are
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rudimentary and not sincere, and that in fact Father has
alienated Cllllt against Mother in order to avoid the results
set for~h in the October 1, 2013 custody order. The reasoning,.
behind the court's conclusion is set forth in more detail in the
discussion section of this Opinion.
There is no evidence that Mother has interfered with the
[nter fer-ed with c-'
custody time of Father, and to the extent that she has
s efforts to t
in custody of. Mother, it has. only been to address excessive
e lephone his father while
telephone communica~ion between clllll and Father as to
interfere with Mother's custody time with c~.
(2)
c- and Father contend that Mother and the maternal
grandfather are physically abusive to clllll, The court finds
that· the evidence supporting this claim is not credible. cllll
testified that he is afraid of Mother and afraid that she and
The co:u rt finds that c-
the m~ternal grandfather will hurt him and have done so in the
past. is making such statements in
an. effor.t to control th~ outcome of this case as he is aligned
with Father and alienated from M9ther, as will be explained
.
further infra .
. _ . . _. :·:··_ ........ __ The cour-t concl u-des . °ihat'·"·tfier·e-· is no credf61 e evicl'erfte"l:hat
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either party is physically abusive or verbally abusive towards
JUDICIAL
OISTRICT c4IIIIII. However, to the extent that Father's· efforts to
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ali'enate cl 3 from Mother may be considered abusive, the court
is concerned that c has been psychologically harmed because
of the pattern of alienation.
The court sp``ifically 1inds that the testimony of Mother
and maternal grandfather relative to the incident of November
25, 2012 is credible, and no abuse occurred. The court here
finds, as previous courts have found, that on November 25, 2012,
cl Jihad an extensive telephone conversation with Father while
in custody of Mother at Mother's residence. After that
conversation ended, ctlllll acted in a manner whereby he was out
of control. Mother attempted to calm clllll down, but .ctlllll,
-without any re~son to do so, began to scream for help stating
-~hat Mother was going to hurt him. The maternal grandfather
.arrived to render assistance. Upon arrival, the maternal
grandfather found c~barricaded inside his bedroom.
Maternal grandfather was required to push the door open to
enter. ·c~ threw himself ?n the floor and contiriued'to
engage in a tantrum. Maternal grandfather and Mother restrained
Ctlllllby holding his ar.ms and legs until he calmed down.
Afterwards ct1111111was fine, had something to eat afterwards, and
the next day interacted with the maternal grandfather as though
nothing.had occyrred, spending time with him.
Both Mother and Father have appropriateiy cared for Cllllf
53RD
JUDICIAL
while exercising physical custody relative to preparing of
DISiRICT
meals, gettjng conner to school, seeing to his hygiene and dress
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and otherwise each providing and being able to provide suitable
parental care of c~. Aside from the issue of c11119's
alienation from and expressed fear of ~other, that is without
foundation, Mother and Father are each able to render
appropriate parental care.
(4)
Because of the protracted 1 i ti gati ~n between the part_i es,
clllllll lacks stability and continuity-in all aspects of his
life. He previously attended school in Neshannock Township.
Howeve'r, commenci ng with. the 2014-15 schoo l year, rarher , who
did not have primary physical cus~ody nor any legal. custody
pµrsuant to the court 9r.der, enrolled_ cllllf in the Hempfield
school District in westm~reland county. This enrollment is
·-directly in contravention. of the October 1, 2013, court order
and wa~ done without court approval. Thus, ct1111is faced with
having to be returned to the Neshannock school District if the
custody order does not change. clearly his family life is
undermined in that the result of the extensive litigation is
that he has not had contact with his mother and mother'·s family
since oecember, 2013. c1111111t's sense of stability is further
disrupted by the fact that Mother and Father have a complete
inability to communi~ate with each oth~r in a civil manner.
. .
.......... . . . . - -Although-E----i··S·· . de:i.ng we.1-L.-i.n hf.s, cu.r..r. ent
v e.o.r.Qllm~D.:t; i..!t ..~_l!_~ - .
\ .
Hempfield school District, Ctlll is a~ intelligent young man
53RC
JUDICIAL and will do well in any educational environment. The
DISTRICT
instability results ·from the manner of interaction between his
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ENNSYLVII.NIA
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parents. The court further finds that the pattern of conduct
whereby Father drives c I from Greensburg, Westmoreland
county to Neshannock Township, Lawrence county each week so that
conner may exit his father's car, knock on Mother's door and
tell her he is not staying, and then proceed to the residence of
Father's _si gni fi cant other, videotaping the entire proceeding,
even beginning the videotaping in Father's car without objection
from Father, i.s not indicative of stability in his family' life.
(5) The availa_bility of extended family.·
The maternal grandparents live near the residence of Mother
- and have the desire and the ability to assist Mother in caring
for ct11111and are available on a daily basis.
grandparents express great love for
c .. s alienation
C- The maternal
and are devastated by
from Mother and from maternal Q.randfather.
c .. does express a fondness for maternal grandmother and did
invite her to have lunch with him, which was successfully
accomplished. It is noteworthy, however, that in expressing his
fondness for maternal grandmother, cllllll also expresses,
without foundation,. that she is abused. ·Father does not have
extended family that lives in proximity to nis residence.
(6) The child's sibling relationships.
. This factor is not. applicable as ctlllllf is an only child,
-~nd nei the r p``-;·~·t· · h~;·· · ·;·~-y-·-_;the_r ch i l d ren-:··-·-·-· ,- _, __ .: ·-- -·--
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OISTRIC1"
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(7) referen e of t e child bas d on the
maturity an Judgment.
c is fourteen.ye!rs of age, clearly possessing a high
degree of intelligence, and displays a high level of maturity
for his age. c S does not only demons tr-ate preference to
live with his father, he di~plays a total disdain for Mother.
He states that he is fe.arful that his mother and/or maternal
grandfather will physically harm him. He testified that his
mother.would threaten him, dig her fingernails into his arm,
yell at him and otherwise physically abu~e him. Cllllf 'himself
.has stated that he wanted to kill his mother and blow up his
school. ctlllllstates that Moth~r and maternal grandfather
attacked him on November 25, 2012 and then on ·January 1, 2014,
Mother attempted to harm him in the incident when clllll exited
'the·car driven by maternal grandmother with Mother seated in the
back seat with cllllJ.
The court specifically finds that cllll's perception of
the· events of November 25, 2012 and January 1, 2014 are
completely unfounded and that there is absolutely no basis for
cllll to believe that his mother will harm him in any way.
In.answering each question put to him by counsel. in the
court, ctlllllll answered each question in such a way ·as to place
Mother in the worst light possible. Cllllltould ~ot identify a
single positive memory of any event involving his mother. when
-``ked-·-abo·ut~·-·fly-i-ng---le-s-sons. :that--be __to~ok.....u_p__!,J_r:tti l 2011.J
downplayed Mother's support of the lessons. when he described
f- - - .
53RO
JUDICIAL.
their va~ation taken to south Carolina, he indicated his mother
DISTRICT
paid little attention to him.
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Although clJllllllllt states that he is fearful of his mother, a
video introduced into evidence by Father shows the contrary.
Father depicts c .... on the telephone with his father and
Mother telling him to get off the phone because of the length of
time that he has been on the phone. It is clear in the video
and the ·statements made by him and in the manner of expression
that cg 2 is clearly goading his mother. He is videotaping
her being upset with him being on the phone and the court finds
that this was in effort by clll!llll*to get Mother to do something
physical that could be used against her in court. His efforts
were unsuccessful. Mother's reaction to his obstinance was
.understandable under the circumstances. one cannot ·view this
videotape and conclude that Cllllllllhas any fear whatsoever of
his mother.
~estified that his mother would take a voodoo doll
hanging above the kitch~n sink, and ~tab the voodoo doll with a
knife and smash in the drawer as though she were displaying such
aggression against Father. The voodoo doll was stated by him to
appear to be wearing scrubs and his father is a physician, would
therefore represent Father. when shown the voodoo doll on cross
·examination, ctlllllcould not exp~ain why the voodoo doll was in
excellent condition, other than showing age, containe9 no
evidence of any damage to it and.clearly no knife marks. His
pnly explanation was that perhaps the doll had been substituted .
~;t~-~·~·;, g_r.an.dmother.
. ,_u,._, • ,, • ., ••__ ,.,,._,._, •
Testimony from was .. that the dol'T"at'·····a-- ·
53P!D
recess was removed from its place above the kitchen sink by
JUCICIAJ..
OISTRICT
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having to unscrew the handle on the cabinet door at it had never
been removed prior to having been put there originally.
c II testified that on one occasion his mother answered
.the door. totally naked. Mother testified that the occasion ·
c is referring to was an occasi'on where she answered the
door in a nightgown and the nightgown was shown to the court,
with the court 9bserving that there was nothing improper about
it. Early in the trial, Father claimed to have a video of this
occurrence. counsel for Mother demanded the video. It has been·
produced and entered·into evidence, and it does not show Mother
without:any clothes. All that the video shows is Mother's arm
·and does not support c.... 's testimony.
In testifying as to living with Father, Ctllldescribes
everything in a positive manner. He enjoys living with his
father, enjoys the school he presently attends, describes the
school that he presently attends ~s being a much better school
than the school in Neshannock Township, describes Father as good
~ .
at helping him with homework where Mother was not, gets along
well with Father's significant other and enjoys the time that he
spends with Father.
In view of the foregoing, the court finds that ·Ctllllr's
preference is not well-reasoned; that there is no basis for his
disdain ·towards his mother and that his testimony relative to
the conduct of Mother·and his fear of her is not credible. ·
·~-'·s · ·atti tud~ ·t``ards his mother ·;:s ·-the _. . u'nfortunatEf'"N~-strlt . - · -. ·
!13RO
of the fact that the parties have been in constant litigation
JUDICIAL
DISTRICT
IU::l'ICI!: COUNTY
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over him during most of his life and that Father has succeeded
in alienating him against Mother.
Mother's position is that Father has clearly turned~
against her. The court finds that there is merit to Mother's
contention.
c 's total refusal to be with Mother did not come about
untri 1 _shortly after· the october- 1, 2013 custody order that gave·
primary custody to Mother. Until then~ c~ did spend an
equal amount of time with Father and Mother, changing custody on
a weekly basis, and had done so since at least February, 2012.
Therefore, it appears that c 's behavior was simply a way of
·-avoidi.ng compliance with the October 1, 2013 court order and
that c is behaving the way that Father wants him to jn
order .to retain physical custody.
Father and c.....-both state that Father tells c..., that
he must comply with the court order and he must go to Mother and
that each week at each appointed time of custody excha~ge Father
drops cu off at Mother's house but c simply won't go.
Cl£ will either knock on the door and tell his mother he is
not staying or will simply walk through the yard and end up at
the Fireside residence of Father's significant other. Father
wi 11 pi ck c I $ up at Fireside, email Mother as to where c••
is and then return·with c to Greensburg. However, the
..
~ourt fi.nds that Father is only paying lip service to the
· ~-~-````j"~.= order- know·i·~·g··· ·fu1·,·· we"fi·· · that . . c. . is not going·· to· srav:':
"'''' '''•"•-•~•••••••• • O• ,, .. ,.,
. ·., '
531tO
and that Father does not expect him to stay. There is no
JUOlCIAL
DISTRICT evidence whatsoever of Father doing anything to require
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to stay. Father drops c"IIII off in the driveway of Mother's
house but does not· get out himself to.take C ..... to the door.
These exchanges are ~enerally videotaped.by c&illlll an~ there is
no indication in any videotape of any effort by Father to make
cs :ar stay. In fact, the video tape introduced into evidence
by Father shows- c • commencing the videotaping as the car +n
which he is riding with Father is pulling into the driveway.
Father can obvious·ly see that c- is vtdeotaptnq and thereis
no effort to discourage or forbid him from such conduct. The
court finds that ·thi"s is evidence of the Fat~er encouraging and
condoning clllllll's behavior. Each time an incident occurred
that involved any type of physical contact, Father would
immediately file a PFA on behalf of conner when in reality the
occurrences became physical only because of the need to-restrain
clllllto keep him from hurting himself.
· Each trime conner would refuse to stay at his mother's he
would run over to the Fireside residence. Entry into the
Fireside residence was gained with a code which Cllllt knew. No
effort has ever been made to change t~e code to prevent c~
from entering that residence. No effort has been made to forbid
ctllllfrom entering· that residence~ The Fireside residence has
been made available to conner by Father and Father's s·ignificant
other as a place of refuge to avoid having to stay with Mother.
it is c~ear·to the court that if ctlllllwere to be left in the
.· .. -·- · phys+ca] .. custody of Father,-- there, is no reasonab.1e."-Ti'ke11ho'od_.......~··:·
that ct111could ever have any type of meaningful relationship
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JUDICIAL
DISTRICT with Mother as that would.be contrary to Father's wishes and
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expectations and that under current circumstances, c111111will
do whatever he has to do to meet those wishes and expectations.
In July of 2014, Judge Thomas M. Piccione ordered an
updated custody evaluation be prepared by Bruce chambers, Ph.D.
Dr. chambers conduc~ed the evaluation, prepared a report and
testified at the trial in this case. or. Chambers recommended
that Father be granted full legal and physical custody of
c• s. Dr. chambers concluded that there was no evidence to
suggest active alienation on the part of one parent or· the
other. Dr. chambers opi~ed that Cl T's preference to reside
with his father and to avoid custody with his mother is due to
personality issues in Mother whereby she has manifested her
anger toward Cfll///l· in a variety of ways. or. chambers stated
that Mother appears to have issues with anger management
referencing Cllllt's statements about her yelling and screaming.
or. chambers believed that Cllllf was credible in his interviews
with him and. in his prior interviews with or .. Darnell. or.
chambers concluded that in Mother's household and with the
interaction of Mother's parents, there is a lot of animation and
yetling in day-to-day communications. Chambers also accepts as
'
credible c s statements that his grandfather could go to
jail if he talked about what happened; that .no one would believe
c f and that he would be sent to a mental hospital. chambers
'a'l so noted in his interview wi~h CQI r that c commented
•'that' indst nights when they had dinner- t'ogethe'r ··w~'t'fi" ::fr;e·- .
53RD
grandparents they were nasty, mean, and rude to each other. or.
JUDICIAL
DISTRICT chambers gives Cb I credence in these statements noting that
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this type of activity would be stressful to CIIIII'· Repeatedly,
throughout his report and his testimony, chambers indicates that
cs a is credible and what he states about Mother and her
explosiveness, display of anger, and Mother's behavioral issues
.that have caused c to fear his mother.
or. -Chambers also notes that in concluding that there is
not parental alienation being engaged in by Father, in true
cases of·parental alienation the·resulting·behavior and attitude
toward the alienated pa~ent tends to be much more polarized,
with children being unable to talk about little positive if
anything about the alienated parent. Dr. chambers noted that
·this was not the case in his evaluation, chambers noting that
Cl :0 did describe some positive moments he had with his mother
in the past.
or. chambers conceded in his testimony that his conclusions
are based upon the fact that he finds c•• to be credible and
that he has been consistent in his statements when his present
statements are compared with statements he has made in prior
evaluations. He also notes that Mother. was pessimistic tha~ any
positive outcome could come from the evaluation, that she was
·less than fu'l'ly cooperative, with or. chambers noting that
Mother's contempt for the process was evidenced in her·
incomplete pre-evaluation questionnaires .. chambers noted that
~he was sparse in her information in those questionnaires in
regard rovher-se l f , ~$5-Ues With Fatfi'er;·· ·and·· c : . · -· ·-- . ~·- - . ·-··- · · ·---· -.
The court here concludes that Dr. chambers' conclusions are
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DISTRICT not supported by the record for two distinct reasons. First of
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all, the court does not find CCIIIIIIIF• to be credible in his
statements relative to Mother's conduct. The Court has had the
benefit of a tri'al whereby c••' s statements relative to
Mother's conduct has been subject to the test of cross-
examination and rebuttal by other evidence.· In th1s record,
there is no indication of Mother being explosive or expressing.
anger towards c At best ·all that one can say is that she
is· understandably· frustrated by a process whe'reby she has had by
court order primary custody since October 1, 2013 ye~ has not
had c since December, 2013. The court has had the
opportunity to view the demeanor of Mother as well as the
·maternal grandparents and they all appear to be individuals who·
exercise good common sense, love c very much, are dealing
with a difficult emotional situation as best as anyone could in
these·circumstances --and are truly heartbroken over the course
this case has taken. -As above indicated, any claim that c:•••
fears his mother is clearly negated by the very videos that were
introduced by Father where cg S can be seen being aggressive
in his desire to anger his mother and in his calculating conduct
in videotaping every possible exchange he can, with the purpose
of having evidence in court to use against his mother, by his
-own admission. unfortunately, or. chambers accepted a view of
Mother from his limited ability to analyze the evidence, which
·js directly contrary to-the evidence that the court was able to
. · -·····- ···~-``·,· ``~-~·· · i··~·· ··;·· ·t·~·i-~1··:--;etti ~g. - Th.e court -·finds ·that the _ : _ . · ·· ·· ·-··
53RD
underlying factual bases for Dr. Chambers' opinion have been
JUDICIAi.
DISTRICT disproven or are unsupported by the record.
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secondly, or. chambers in concluding that there was no
.indication of parental alienation by Father, bases his
conclusion, at least in part, by his determination that c111111t
did have positive memories of times with his mother and in true
parental alienation cases, the situation is much more polarized
with the alienated child having little or no positive statements
to make.a~out the parent being alienated. Here, when one views
c lf's testimony, c :S has nothing positive to say about his
mother and the court cannot conceive of how c 's attitude
towards· his mother could be any more polarized. He displays
nothing but disdain for her. He entered every question in a
· manner calculated to place Mother in the worst light possible.
when the. court questioned cg 9 about positive memories with
Mother,·c..1111•would put a·negative spin on any .Possible memory
that could be considered to be a positive.
on cross examination,. or. chamber's conceded that if the
.events that c••
described never happened then the basis for
his opinion would be incorrect. The Court concludes t~at such
is the situation in that cg has consistently attributed to
Mother and the maternal grandparents conduct that has in fact
not occurred and that a finding of parental alienation is
supported by Dr. chambers own observation that in true parenta'l
alienation cases the effected child has little or nothing
positive to say about the alienated parent and the child's
. -- - .. )
. . .
··-"" --·- _ - __ ""'"---·······--·--- ..--·----·---··-··· --· .. ---·--
_, , , .
perception of the a 1 i enated parent . is po 1 arfzea:-------·----·-~-·-· · _,_ ·
A psychological evaluation was done of c 9 at the
53RD
JUDICIAL.
OISTRICT request of the court by Martin Myer, Ph.D., psychologist. In
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his conclusion, or. Myer notes that the evaluation focused
solely on the mental status of cg g and not the psychological
or emotional status of the parents. or. Myer concluded that the
current findings do not suggest significant psychological damage
to c t W; that he is.fairly resilient and even flourishing in
the current situation. However, or. Myer notes that Mother has
not had a chance·to parent largely through the willful behavior
of c or. Myer also recommends that counseling occur
between cg; and his mother. or. Myer even comments.that both
Mother and Father should seek their.own counseling. or. Myer
does not address the.issue of.parental alienation other than to
;i"ndicate that he does not rule it out.
It is also noteworthy that Dr. chambers referr.ed to tQe
report of Dr. Darnell as support for or. chambers.' own
.con cl usi ons , .i ndi cati ng that Dr. Darne 11 's concl usi ans
paralleled his own. However,.Judge Piccione noted in his
opinion ·of August 1, 2013, that when Dr. Darnell, in his
testimony, was presented with hypothetical questions regarding
behaviors displayed by Clit over the course of the past year,
or. · oarne 11 testified that those behaviors we re consistent with
behaviors exhibited by a child suff~ring from parental
·alienation. see Trial court opinion, October 1, 2013, page 24,
25.
a
.. - -- .
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'UDICIAL
Both·parents love CB!.7 and wish to see c1111 flourish in
)!STRICT
every aspect of his life. Unfortunately, . they have a total
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inability to co-parent and have exposed Cllllllf to over a decade
of litigati"on that has clearly affected him emotionally.
c R's negative and i rrati ona 1 attitude toward his mother
demonstrates that his emotional needs are not being met by
Father. contrary to court order, c111111thas remaine~ in ·the
actual physical custody of Father without legal basis, and this
has a11owed the situati"on to get worse in regard to c 's
feelings toward Mother. Cg I's testimony and that of his
Father par~llel each other, both being quick to lay blame·on
Mother who has been put tn an almost impossible situation,
including.her being criticized for not following Fath~r's lead
·on various issues regarding c when Father is clearly acting
in corrtr'aventrl on of the cus.tody order.
The court further notes that the di scussi.on contained
relative to factor· (8) applies also to relative to the
discussion relative to the within factor.
Both parents have the ability to meet the daily physical,
developmental, educational ~nd any special needs of c :r.
Both maintain more than ad~quate households, have the ability to
clothe and feed CUJ g and support him in his educational
. .p-ro·gre:s-s-···and···-suppor't-·· h"
· ·1·m· · 1·n' ····extr.acu.r.r.-1.cu
. 1 ar._.act:1.v..1..
. .t.1.es
. ·-···.
However, Ct1£••:, s emotional needs are not being met by Father
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while in his custody as allowing to remain in his custody has
DISTRICT
escalated Clllllf's negative perception of his mother.
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(11) Ihe proximi·tx of the residences of the parties.
During the time that Mother and Father exercised shared
physical custody on a week~to-week basis, the parties lived in
the same neighborhood. However, Father has relocated to
Greensburg, Westmoreland county, which ts approximately an hour
and a half drive between the residences of Mother and Father.
This distance requires a determination that one party must have
primary physical custody, at least during the school year.
(12) Each art's availabi i abilit
to make appropriate
There is no indication in this case that childcare is an
issue. c•• is fourteen years of age and attends school
regularly, both parents are.employed, Father as a professor at
.'LECOM located in Greensburg, Pennsylvania and Mother being
·employed in the medical field. The parties had enjoyed shared
physical custody with .childcare never having been an issue.
Mother has the availability of her parents to assist her in·
attending to c••111111• if necessary and Father has his significant
oth~r, Ms. $I I ?, to assist him.
(13) The level of conflict between the parties and
the willingness ana abi1fty of the parties
to cooperate with one another.
A party's effort to protect the child from abuse by another
··· · -party··ts .. not -~v-i-denGe o:f unwi.lli.ngness or . ..i..n.ab.i.l.tt.Y ~9 f.'?9.P.~t.~t~ ·
with that party.
53RD
JUDICIAL Mother and Father are unable to cooperate with one ·another.
DISTRICT
The level of conflict is apparent from a history of constant
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litigati~n between the parties that exceeds ten years. Mother
and Father are unable to communicate with each other and what
communication that has existed has occurred through emails or
text messages. It is necessary for one parent to be awarded
sole legal custody because of the inability'.to agree on any
major decision to be made on C11111t's behalf.·
(14) The histor¥ of drug abuse or alcohol abuse of a party or
· member or
a part¥'S household.
N~ither party has any history of drug or alcohol abuse.
(15) The mental and oh¥sical conditions of the parties
of caring for
· . hea] th disorder.
c.....
Mother and Father are both health.y and physically capable
Neither party suffers from any mental
DISCUSSION
The parties hereto are each seeking modification of the
existing custody order o'f October 1, 2013. Modification of an
existing cust~dy order is addressed in 23 Pa.c.s.A. §5338(a)
which provides that a. court may _modify a custody order to serve
the best interests of the child. The comment thereto provides
.that this subsection codifies the standard used in Karis v.
Karis, 518 Pa. 601, 544'A.2d 1328 (1988) where the supreme court
.he'td=that+a reques·t-·-to--modi·fY····a· ··GU.stody orden naqui.res .the c.ou.c!; ~ .
to enquire into the best interests of the child regardless of
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JUOICIAI.
whether a "substantial" change of circumstances has be~n shown.
OISYRICT
Karis, 518 Pa. at 607-8.
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Additionally, Mother is requesting special relief so that
her award of primary physical custody may be materialized. A
tequest for ~pecial relief is iddressed in 23 Pa.c.s.A. §5323(b)
provides that the court may issue an interim award of custody to
a party who has standing in .the manner. prescribed by the
Pennsylvania Rules of Civil Procedure governing special relief
in ·custody matters.
Although extensive proceedings have been held on the
competing requests for modi.ficatiori, and for special relief and
finding~ of contempt, essentially nothing has changed subsequent
to the proceedings that resulted in the October 1, 2013 custody
· .:·order except that c adamantly refuses to be with his
mother. cqjgzp's recalcitrance to being with his mother was
recognized by the trial judge in the prior proceedings.· In the
.October 1, 2013 opinion, the -cour-t noted that Father encourages
c 's unreasonable apprehensions regarding Mother (Page 25);
that Father has demonstrated a desire to frustrate Mother's
relationship with cg 9 (Page 29); that if Father is awarded
primary physical and sole· legal custody, cg 3 's relationship
with Mother will dissipate to the point of disrepair (Page 33);
that the foregoing analysis finds fault in F~ther for enabling
c 's unwarranted fears and
'
trepidations of Mother;
' '
the court
believes that Father's actions have caused Mother's relationship
with c to suffer, but the court does not believe that
.............................................................
·Father's actions should be characterized as alienating (Page_ ..
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33).
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Although the trial court in the prior proceedings stops
short ·of characterizing Father's actions as alienating, the
court did attribute c 's unfounded.perceptions of his Mother
to be caused by Father's actions and that Cllllllf'S thoughts
about Mother paralleled those of Father.5 The court's prediction
proved to be true, that if cs t were· left in the custody of
Father, the relationship wi th cc I and Mother wou'l d only
deteriorate. However, the circumstance that allowed Father to
have the custody was not brought about by court order, but·by
the fact that c•• s'imp'ly refused to be _with Mother, and that
'cf rcumerance has been allowed to exist without being
:specifically addressed by the court re'l at lve to the aspect of
·enforcement of the October 1, 2013 order.
The issue of a ch+Id refusing to see his mother, although
u~usual, has been·addressed by our appellate court?. In Nancy
E.M. . v. -Kenneth D.M., 316 Pa.super. 351, 462 A.2d 1386 (1983),
.
the superior court held that the fact that a child does not want
to see his parent is not a sufficient reason to deny the parent
'
visitation. The court further held that ordering visitation at
the desire of the child was tantamount to denying mother her
visitation rights and therefore constituted error.
In ~om.Ex Rel. stoyko v. stoyko, 267 Pa.super. 24, 405 A.2d
1284 (1979), the court set down a specific standard to be
..... ......... - ····- .. -··············--·····- .
sMore r-ecerrt ly, Mother filed an in~unction proceeding against ·Father·•s·-···-· .. ·-·····
significant other, seeking to en'oin her from interfering in the custody
matters. a . E 1 · a , No. 10191 of 2014, C.A. The
53RD same trial ju ~et at issue the octo er l, 2013 custody order in this case
JUDICIAL denied injunct1ve re1ief1 but in a Pa.R.P. 192S(a) opinion found that the
DISTRICT "root of the mi nor chi1 d s behavior seems to have been derived from or.
Thomas." (Pa.A.R.P, 192S(a) opinion dated February 4, 2015, page 10.
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followed in addressing the child's refusal to see his parent.
In stroyko, the superior court held that the stubborn refusal of
a child not see his mother should not be allowed to destroy the
parent's visitation rights unless some good reason can be shown
for the child's attitude. In determining whether the child is
justified in his behavior, exploration should be made into
Mother's past and present to decide whether the causes for th~
chi"ld's fear and resentment had ever existed or have since ·
vanished. Here, after evaluating all of the available evidence,
· the court finds not only that there is no basis for c to
· 'have any fear of his mother, the court al so .finds that in
•reality cg I has no fear towards his mother nor of his
~aternal grandfather. The court finqs that c expresses this ·
fear only for the purpose of fulfilling his father's
· expectations that he have no contact with Mother.
In concluding that the conduct of Father is. alienating
conner from his mother, the court points to the following
factors:
Both c 3 and Father express the ·fear that Mother will
harm both c and Father. Father has even expressed his fear
to the point that he obtained a ~oaded firearm that he carried·.
with him during the custody exchanges out of fear that.Mother
·would kill him. He has gone as far as carrying this loaded
firearm into the Westmoreland county courthouse during PFA
1
P roceedt n9s ; nvo ~i. ``- . -h·i·;;·~·,·i . . . .
M~t'tie·~- . -in·d· . E. . . . -- . · ·--·-;· . --,..e"a"a,. .,-~T-·fo. . 'fili·· ·
53AO
arrest. These fears have been repeated by both cs A and
JUDICIAL
OISTRICT Father repeatedly during these proceedings, prior proceedings of
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this case and in all of the related proceedings in this court
and in Westmoreland county .. other than the testimony of cqg111..-
and Father, t6ere has not been one iota of evidentiary support;
for these expressed fears. Neither this court nor any other
court has found any support for these expressed.fears. The
available evidence leads to the conclusion that the expression
of fear is contrived. similarly, c 's expression of fear
. .
towards his maternal grandfather is incredulous, and has been so
found by this court and in prior court proceedings in this court
and in Westmoreland county. Equally incredulous is ca D's
statement that the maternal grandfath.er .called him a "worthless
:pi-ece of shit", the court making this finding after observing
the grandfather and ~ssessing his testimony and demeanor.
ot~er claims of~ have.been dispr~ven. c:•slll• claimed
that Mother answer.ed the door on one occasion naked and it was
represented that there existed a video to support the claim.
The video that was requested to be produced did not show what he
had described.
cj R claimed that Mother had stabbed and smashed a voodoo
doll representing her desire to kill Father. The exact voodoo
doll produced was not damaged in the least. Further evidence ·
showed that the doll cou~d not be easily removed from w~er~ it
was affixed, and when c•• was confronted with the doll he
$Uggested that perhaps it had been replaced.
.. ·-···
-v ., ca
,,-,,.~ '
9·9
a1 so s·~· ``·t;ci·- . th~t . Mother had P 1 ace,rh:rs· i:i'fcfiir.e... . ··
!531'10
next to the voodoo doll indicating her desire that c should
JUDICIAL
DISTRICT also be harmed just like Father should be. Evidence showed that
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the picture ca z p p was referring to was a picture of c.a R that
Mother carried, out of love, on her keychain, which hung on a
hook. next to the "voodoo doll" .
Father and·c engaged in a procedure whereby at the
time Mother was to receive ca C for her period of custody,
they would drive into Mother's driveway,. cs 3 would exit the
vehicle, videotaping all the way, either knock on Mother's door
and tell her he was not staying or simply bypass the house, and
then walk over to the Fireside residence, wait ·for his father
and then return to ~reensbur·g. The fact that this was a mere
-. charade for court purposes is indicated by the fact that a video
,shows ·that c••
. :
.
begins videotaping while in the vehicle with
his father, that father knows to wait for ca O at the· Fireside .
residence instead of simply leaving, and allows Clllllltto have
continued access to Fireside by not requiring
. .
that the code for
. .
entry ; nto the home be changed from the code that ca Sis
aware of, allowing conner·to have access to a safe haven to
avoid having to be with Mother.
cgpppp's claim of fear of his mother is dtsproven by a
video in which Mother atrtempts to direct ca I to get off the
phone, having spent a considerable time on the phone with his
. father .. In the video Mother is under.standab 1 y frustrated as
·c£ 9 is obstinate in his refusal to get off . the phone and can
-be seen· and heard taunting his mother in an obvious attempt to
•,,ir'•.1 ··get ·her .to lose her. temper while c ·-····i.s viileotapi'ng~. her:···.:-·····-. . ·:· : .....+:
cg R hi mse1 f testified that he uses the video for purposes to
53RD
JUDICIAL
DISTRICT be used in court against his mother.
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With regard to the use o~. the video, Father has the obvious
ability to prevent c · . from videotaping, even to the extent
of removing the phone.from him if necessary but makes no effort
to do so.
In every custody exch~nge attempted where Father drops
c off at Mother's house, there is not one initiative that
Father has done anything that- can be observed by any person
whereby·he attempts to make c:•• stay with his Mother.
Additi ona 11 y, the evidence in this case is compe 11 i.r:19 that
cB J wi 11 in fact do whatever his father ·di rects him to do.
The .. evidence is clear that Father directs every aspect of
·c 's life. It is. simply unbelievable that c will
adhere iockstep to every directive and expectation of Father
except as to this one aspect of·his'life relating to seeing his
mother. The court finds tryat if Father did in fact direct
cg ? to stay with his mother, he would obey his father.
The matters before the court include the emergency petition
for special relief filed December 3, 2013 as supplemented by the
emergency supplemental petition filed January 7, 2014. The
issues raised in these petitions are the same issues that wil.1
be considered as part of the determination of the competing
claims for modification of the custody order.. Thus, the .
disposition of these motions do not require a separate analysis
?ince these petitions addressed what has already been discussed,
,.... , . "the i nabi li.ty ·Of :.Mothe.r to effectuate ·the q.1stody. ··o·r·d·e-r·-:15y : :
S3RO
reason 9f cm · 's refusal to go to her home and Father's role v
JUDICIAL
DISTRICT
in- bringing that situation about or permitting it to exist.
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The court is required. to separately address the petition
for contempt filed April 8, 2014 and the petition for contempt
filed September 4, 2014.
The April 8, 2014 petition alleges that Father has denied
or coerced, conspired or otherwise controlled c p in an
effort to deny Mother her primary physical custody; that Father
pay lip service to the October 1, 2013 order by dropping cg 1
off at Mother's residence every other Sunday, at which time·
c gets out of the car, runs to Father's significant other's
r~sidence at Fireside where Father is waiting for c , and
they depart; that Father intentionally, willfully and wantonly·
· thwa:rts:Mother's relationship with c p; that Father fails to
uphold -Mother as a parent that cs 1 should love and respect;
that Father blatantly 1:1ndermines Mother's. role as a parent; and
that Father speaks in a ·derogatory, condescending, and otherwise
inappropriate manner. about Mother to .cg $ in an effort to .
./
reinforce c••t's unfounded, nonsensical beliefs about Mother;·
and that Father refuses to communicate with Mother and provide
.,
her any information about c••
The Petition for contempt filed September 5, 2014 alleges
that Father has willfully and wantonly withheld cs: S from the
Neshannock Jr./sr. High school where he was enrolled for the
2013-14. school year and, without any authority to do so,
enro l Ied ca I in the Hempfield school District in Westmoreland
......................................................... '
. , . · .. ·, . -ccuntv. Father also incorporates by. . r.efe-re'ri'c·e· . ·fo"··'the.:··p·eXf'EiOtf . . .
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for contempt filed April 8, 2014.
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The issue of contempt is addressed in 23 Pa.c.s.A.
§5323(9), addressing contempt for noncompliance within a custody
order. That subsection· provides as follows:
(1) A Rarty who willfully fails ·to comply with any custody
order may, as prescribed by general rule, be adjudged
in contemRt· contempt shall be punishable by any one
or more of the following:
(i) imprisonment for a period of not more than six
months.
(ii) a fine of not more than $500.00.
(iii) probation for a period of not more than six
months.
(iv) an order for nonrenewal, suspension or denial of
operating privile~e under §4355 (relating to
denial or suspension of licenses).
(v) counsel fees and costs.
(2) An order committing an individual to jail under this
section shall specify the condition which, when
fulfilled, will result in the release of that.
individual.
In order to support a finding of contempt, it must be found
that the offending party failed to comply with a clear and
specific provision of a custody order, and that the failure to
comP1Y w~s intentional and willful. A fin~ing of contempt
cannot be supported if based upon an original order. that is
vague. Mellgtt v. Mellott, 328 Pa.super. 200, 476 A.2d 961
(1984). A custodial parent's obstruction of the noncustodial
·parent's right to visit the child may serve as the basis of an
. prder finding the offending party in contempt. As held in
· .· :;·:·; · - ·~E~·g-1 . i··~·h-.::;~·-··E~gi i sh' 322. Pa·. super. 23'4, 4.69 A, 2cf"'"270"'(19'83)"~--·the···oooo• . , -.
S3RD
obstruction of a child's visits with a parent will not be
JUDICIAL
DISTRICT tolerated· and a parent who obstructed a child's visits with the
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other parent was in contempt of an order providing for
visitation. rights. Even an honest belief that visits between
~hild and parent waj causing the child psychological harm could
not justify the deliberate violation of a court order providing
for visitation. English v. English, supra.
The court here finds that the specific allegations of the
April 8, 2014 contempt Petition cannot form the basis for a
finding of contempt. Although the court has clearly indicated
that Father is alienating c:•• against Mother, the specific
allegations of the petition are either too general and vague or
were unproven. AS held in Sutliff v. Sutliff, 361 Pa.super.
194, ·5.22 · A.2d 80 (1987), a party cannot be held· in contempt for
failing to "encourage" visitation without a finding that a
specific provision of the order was violated and that the
provision ·was clear and.definite. such contentions.as allowing
cg fto have refuge at Fireside may violate the spirit of the·
order, not specific provisions thereof.
However, the court finds that Father is in contempt of the
October 1, 2013 order by enrolling cs Fin the Hempfield
school oistric~ in Greensburg, Pennsylvania. Paragraph 2 of the
October 1, 2013 custody order specifitally provides that Mother
·; s awarded so 1 e 1 ega 1 custody of cg S. That paragraph defines
legal custody as the legal right to make major decisions
~ffecting. the best interests of the child. Major decisions
:~if·;~·ii·:~g.: ''t'he c}ifi"d i° nc 1:ude·· iiduc·ati ori' ahd···:Eidtit-atlon·· ·ts··.· ': . =»: ..
53RD
specifically identified in the court order. At the time the
JUDICIAL
DISTRICT ·october 1, 2013 order was +ssued , c n p attended school in the
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Neshannock Township school District, the school district in
which Mother resided,. mother having been awarded primary
physical and legal custody and was the school district that
c S had been attending in recent years. c& I continued to
·attend the Neshannock school District through the end of the
2013-14 sch9ol year. Prior to the commencement of the 2014-15.
school .year, Father, willfully, and without authority, and
without·the consent of Mother, enrolled C( p in the Hempfield
school District in Westmoreland county, the county in which
Father resides- Father had absolutely no authority to do this
and sucli conduct was in direct contravention of the October 1,
2013·,cu-stody order. Father did not seek approval of the court
in enrolling c i~ the Hempfield sch~ol District but simply
took it upon himself ·to do so .. In accomplishing this
enrollment, Father represented on an enrollment form that he had
custody of cg ff, which is in contravention of the October 1,
2013 custody order. The court.finds that Father's actions in
this regard were intentional and willful.
The court finds that the conduct of Father violates
Paragraph 2 of the October 1, 2013' custody order.
CONCLUSION
For the forgoing reasons, the court will issue an order
·consi~tent with this Opinion which will dismiss the' claim of
-each . party -for modi fi cation .of fh°e."'ex,s"t"i n:g-·c(fs't'c>,ay'"O"rder"·of··-":-··•oo .. ,
OO> 0 ... ,,.••M•o0 .. 0,Ho,o0• 0 '"' o• ~.............. • ....... ~--·· 0
. ' '.:. -, .
October 1, 2013 as to primary physical custody, partial custody
53RO
JUDICIAi.
DISTRICT
and legal custody, but wi'll grant Mother speci-al relief relating
IR£NCE COUNTY
ltNNSVI.VANIA
. 90
IL Circulated 09/23/2015 11:13 AM
to enforcement of the order, and grant Mother's contempt
petition filed September S, 2014 .
.:.··
•:'
... · :~,: . :~. . . . . . . . . . . . j~.;-·:: _ .
53RO
JUOICl,'.'l.
DISTRICT
WRENClt COUNTY
•e;NNSYLVANIA
91