B.C. v. J.M.C. ( 2016 )

J-S19045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.C., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
J.M.C. : No. 3022 EDA 2015
Appeal from the Order entered August 26, 2015
in the Court of Common Pleas of Monroe County,
Civil Division, No(s): 469 DR 2014, 3528 CV 2014
BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED March 24, 2016
B.C. (“Father”) appeals from the Order modifying the Custody Order
with respect to his minor daughter, S.C. (“Child”). We affirm.
J.M.C. (“Mother”) and Father are the parents of Child, born in 2010.
Mother and Father separated as a couple in May 2014, shortly after their
rental home was damaged in a fire. Mother now resides in Slatington,
Pennsylvania, and Father resides in Easton, Pennsylvania.
The initial Custody Conference was held on May 19, 2014, and the
Custody Conciliator issued a recommendation for shared legal and physical
custody, and a 3-day/4-day rotating custody arrangement. On May 23,
2014, the trial court entered an Interim Order adopting the Conciliator’s
recommendation.
Father subsequently filed a Petition for Modification and Contempt of
Court Order. Mother filed a Counter-Petition for Modification. The Custody
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Conciliator again issued a recommendation for shared custody, the
provisions of which substantially mirrored the original recommendation. On
October 3, 2014, the trial court entered an Interim Order adopting the
Conciliator’s recommendation.
A custody trial was held on July 21, 2015 and August 12, 2015.
Because Mother and Father reside in different school districts, and Child was
to begin kindergarten in August 2015, both Mother and Father sought
primary custody of Child. The trial court thereafter awarded the parties
shared legal custody, Mother primary custody during the school year, and
the parties shared physical custody during the summer.
Father filed a timely Notice of Appeal and a Pennsylvania Rule of
Appellate Procedure 1925(b) Concise Statement.
On appeal, Father raises the following questions for our review:
I. Whether [the trial] court’s conclusion [was] unreasonable that
factor #1 of the Custody Statute weighed in favor of Mother[,] in
[THE] face of evidence that this factor weighed in favor of
Father[?]
II. Whether [the trial] court’s conclusion [was] unreasonable that
factor #8 of the Custody Statute weighed against Father[,] when
evidence suggests this factor was neutral[,] or weighed in favor
of Father[?]
III. Whether [the trial] court’s conclusion was unreasonable that
factors #9 [and] #10 of the Custody Statute favored neither
party[,] when evidence showed they favored Father[?]
IV. Whether the [trial] court’s conclusion was unreasonable
[under factor #11, where] Father is only entitled to less than six
days per month (every other weekend) with Child (except
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summer), despite finding both parents are good parents who live
in relatively close proximity[?]
V. Whether [the trial] court’s conclusion was unreasonable that
factor #12 of the Custody Statute (about child-care
arrangements) favors neither party[,] when evidence showed it
favored Father[?]
VI. Whether [the trial] court’s conclusion that Mother’s repeated
“sexting[,]” even while driving and with Child[,] did not impact
her parenting abilities was unreasonable under the Custody
Statute[?]
VII. Whether [the trial] court’s failure to order co-parent[ing]
counseling, after finding that under factor #13 of [the] Custody
Statute[,] the parties have a high level of conflict[,] was
unreasonable[?]
Father’s Brief at 2-3 (renumbered for ease of disposition).
In custody cases,
our scope [of review] is of the broadest type and our standard is
abuse of discretion. We must accept findings of the trial court
that are supported by competent evidence of record, as our role
does not include making independent factual determinations. In
addition, with regard to issues of credibility and weight of the
evidence, we must defer to the presiding trial judge who viewed
and assessed the witnesses first-hand. However, we are not
bound by the trial court’s deductions or inferences from its
factual findings. Ultimately, the test is whether the trial court’s
conclusions are unreasonable as shown by the evidence of
record. We may reject the conclusions of the trial court only if
they involve an error of law, or are unreasonable in light of the
sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
Additionally,
[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
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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).
In any custody case decided under the Child Custody Act (“Act”),1 the
paramount concern is the best interests of the child. See 23 Pa.C.S.A.
§§ 5328, 5338; see also E.D. v. M.P., 33 A.3d 73, 80-81 n.2 (Pa. Super.
2011). Section 5328(a), which sets forth a list of sixteen factors that the
trial court must consider when making a “best interests of the child” analysis
for a custody determination, provides as follows:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical safeguards
and supervision of the child.
1
See 23 Pa.C.S.A. §§ 5321 et seq. Because the custody hearing was held in
July and August 2015, the Act applies to this case. See C.R.F., 45 A.3d at
445 (holding that, if the custody evidentiary proceeding commences on or
after the effective date of the Act, i.e., January 24, 2011, the provisions of
the Act apply).
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(2.1) The information set forth in section 5329.1(a)(1) and (2)
(relating to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf of
the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of
the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or member
of a party’s household.
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(16) Any other relevant factor.
23 Pa.C.S.A. § 5328;2 see also E.D., 33 A.3d at 80.
“All of the factors listed in section 5328(a) are required to be
considered by the trial court when entering a custody order.” J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted). Moreover,
section 5323(d) mandates that, when the trial court awards custody, it “shall
delineate the reasons for its decision on the record in open court or in a
written opinion or order.” 23 Pa.C.S.A. § 5323(d). The trial court may not
merely rely upon conclusory assertions regarding its consideration of the
section 5328(a) factors in entering an order affecting custody. M.E.V. v.
F.P.W., 100 A.3d 670, 681 (Pa. Super. 2014). However, “[i]n expressing
the reasons for its decision, there is no required amount of detail for the trial
court’s explanation; all that is required is that the enumerated factors are
considered and that the custody decision is based on those considerations.”
A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (citation and quotation
marks omitted).
We will address Father’s first six claims together. Father contends that
the trial court erred in finding that the custody factors at section 5328(a)
either weighed in favor of Mother or were neutral. See Father’s Brief at 15-
24.
2
Effective January 1, 2014, the statute 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) and, therefore,
was in effect at the time of the custody hearing in this matter.
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With regard to the factor at section 5328(a)(1), Father asserts that the
trial court’s conclusion that this factor weighs in favor of Mother is
unreasonable. Id. at 15-16. Father claims that, contrary to the trial court’s
findings, Mother is not more likely to encourage continuing contact between
Father and Child. Id.
With regard to the factor at section 5328(a)(8), Father contends that
the trial court’s finding that this factor weighs in favor of Mother was
erroneous because there was also evidence that might have allowed the trial
court to infer that Mother attempted to turn Child against Father. Id. at 16-
17. Father argues that this factor is either neutral or weighs in favor of
Father. Id. at 17.
With regard to the factor at section 5328(a)(9), Father asserts that the
trial court erred in finding that this factor is neutral, and improperly failed to
adequately consider his income, employment and housing in rendering the
primary care determination. Id. at 17.
With regard to the factor at section 5328(a)(10), Father claims that
the trial court’s finding that this factor weighs in neither party’s favor is
erroneous. Id. at 17-18. Specifically, Father directs our attention to
evidence that he lives in a better school district and has a more regular work
schedule than Mother’s schedule. Id. at 18. Additionally, he argues that he
works with Child at night to reinforce what Child learned in school. Id.
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With regard to the factor at section 5328(a)(11), Father contends that
the terms of the custody arrangement are insufficient in light of the
proximity of Mother and Father. Id. at 23-24. Additionally, he claims that
the trial court’s Order does not comply with the typical local practice
respecting shared physical custody between good parents who live in close
proximity. Id. at 24.
With regard to the factor at section 5328(a)(12), Father asserts that
the trial court’s conclusion that this factor does not weigh in favor of either
party was unreasonable in light of evidence that tends to favor Father. Id.
at 18-20. Specifically, Father argues that because he works standard weekly
hours, as opposed to Mother’s varied retail schedule, he is better able to
care for Child himself. Id. at 18-19. Father also contends that his childcare
arrangements with the Creative Learning Center, where he hopes Child will
begin kindergarten, are superior to Mother’s arrangement, where maternal
grandfather cares for Child. Id. at 19-20. Additionally, Father claims that
the trial court’s finding that Mother will adjust her work schedule is
unsupported by the evidence. Id. at 20.
Father raises an additional claim, which we will address as “other
relevant factors” under section 5328(a)(16). Father contends that the trial
court’s determination that Mother’s “sexting” did not impact her parenting
abilities was unreasonable. Id. at 21-22. Father argues that Mother’s
actions distracted her from Child. Id.
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In its Opinion, the trial court undertook an analysis of the factors
under section 5328(a), and determined that it was in Child’s best interests
to modify the existing custody Order and to grant Mother primary custody
during the school year. See Trial Court Opinion and Order, 8/26/15, at 3-
13. Father’s arguments challenge the trial court’s credibility determinations
and the weight given to each of these factors, and would require this Court
to reassess and reweigh the evidence in Father’s favor. It is well-established
that we cannot disturb the trial court’s credibility determinations or reweigh
the evidence. See E.D., 33 A.3d at 76 (stating that “with regard to issues of
credibility and weight of the evidence, this Court must defer to the trial
judge who presided over the proceedings and thus viewed the witnesses first
hand”); see also Robinson v. Robinson, 645 A.2d 836, 838 (Pa. 1994)
(stating that on issues of credibility and weight of the evidence with regard
to custody orders, “appellate courts must defer to the findings of the trial
judge who has had the opportunity to observe the proceedings and the
demeanor of the witnesses.”). Although Father is not satisfied with the
weight that the trial court afforded to each of the factors in rendering its
custody decision, our review of the record reveals that the trial court’s
findings of fact and conclusions of law are thoroughly supported by the
record. See C.R.F., 45 A.3d at 443 (stating that this Court cannot reweigh
the evidence supporting the trial court’s determinations as long as there is
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evidence to support the conclusions). Therefore, we conclude that the trial
court did not abuse its discretion, and defer to its custody decision. See id.In his seventh claim, Father argues that, given the trial court’s finding,
in its section 5328(a)(13) analysis, that Mother and Father have a high level
of conflict, the trial court erred by failing to order co-parenting counseling.
Brief for Appellant at 20-21.
Section 5333 of the Custody Act provides, in relevant part, that “[t]he
court may, as part of a custody order, require the parties to attend
counseling sessions.” 23 Pa.C.S.A. § 5333 (emphasis added). The trial
court’s power to order co-parenting counseling is discretionary rather than
mandatory. Additionally, in light of Mother and Father’s contentious
relationship, the trial court’s Order provided a specific time and location for
custody changes, as well as times for calling Child. See Trial Court Opinion
and Order, 8/26/15, at 17-19. Upon our review, we conclude that the trial
court adequately considered the level of conflict between Mother and Father,
as required by section 5328(a)(13). See id. at 9-10. The trial court did not
abuse its discretion or commit an error of law by failing to order co-
parenting counseling. See id. Thus, we cannot grant Father relief on this
claim.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2016
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Circulated 03/04/2016 04:21 PM
:S-5/1 ol(S-1/;J
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIALDISTRICT
COMMONWEALTH OF PENNSYLVANIA
KC.
NO. 469 DR 2014
NO. 3528 CV 2014
Plaintiff
vs.
I, M-(_
Defendant IN CUSTODY
BACKGROUND
regarding modificatiori of custody. (Mother) also seeks modification of
S, C -
custody. They are the parents of- age 5. Hearings were held on July 21, 2015 and August
12, 2015. Both parties seek primary physical custody of their daughter.
The most recent Custody Order provides for shared legal custody and shared
physical custody on an equal basis of three (3) days with Father, then four (4) days with Mother,
then four (4) days with Father and three (3) days with Mother. The parties have maintained this
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custody schedule since about the time of their separation in May 2014. - will start
kindergarten the week of August 31, 2015, and both parties agree one of them needs to be the
primary custodian, since they reside in separate school districts, and about thirty (30) miles from
each other. Both parties seek to be the primary custodian, at least during the school week.
()
Both parties lived in Monroe County for the majority of the child's life until May
2014. Mother now lives in Lehigh County, Pennsylvania and Father lives in Northampton
County, Pennsylvania. The parties stipulated to keeping this matter in Monroe County,
Pennsylvania for now.
DISCUSSION
A change in physical custody is to be decided in consideration of the factors set
forth in 23 Pa. C.S.A. 5328. Those are:
(a) Factors.-In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors giving weighted consideration to those factors which affect
the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(2) The present and past abuse committed by a party or
member of the party's household, whether there is a continued risk
of harm to the child or an abused party and which party can better
provide adequate physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.l(a) (relating to
consideration of child abuse and involvement with protective
services)
(3) The parental duties performed by each party on behalf of
the child.
( 4) The need for stability and continuity in the child's
education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
2
(7) The well-reasoned preference of the child, based on the
child's maturity and judgment.
(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child's emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to
make appropriate child-care arrangements.
( 13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one another.
A party's effort to protect a child from abuse by another party is
not evidence of unwillingness or inability to cooperate with that
party.
( 14) The history of drug or alcohol abuse of a party or member
of a party's household.
(15) The mental and physical condition of a party or member
of a party's household.
(16) Any other relevant factor.
23 Pa. C.S.A. §5328.
The first factor to consider in awarding custody is which party is more likely to
encourage and permit frequent and continuing contact between the child and another party. This
factor slightly favors Mother. Mother's testimony and demeanor at the hearing, and her prior
actions, are convincing that she is more likely to encourage contact, even beyond what is Court
3
Ordered. Mother has been more positive about Father than Father has been about Mother. Of
particular note by the Court was Father's strong animosity toward Mother due to the reasons for
(' r
) -"-·
the marital break-up; Father enrolling- in a pre-K program without consulting Mother;
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Father not considering returning-to Mother's care when he needed a surgical procedure at
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the time of-birthday; and, Father refusing to allow -to be in Mother's care shortly
S'-C.
after separation and prior to the first custody conference when-was staying with Father's
parents in Maryland. For these reasons, this factor favors Mother as she will be more
encouraging and will permit more frequent contact.
The present and past abuse factor is not relevant in this matter. There was no
evidence presented that either party has been abusive to each other, or anyone else in the
household or to the child. There is no risk of harm to the child from abuse within either
household. Furthermore, both parents are equally capable of providing adequate physical
safeguards and supervision for the child. Father raised a concern that more convicted sex
offenders reside near Mother's residence; however, we note convicted sex offenders reside
everywhere, and it is an unfortunate fact of life. It is important that parents supervise and raise
their children appropriately regarding matters like this. We find both parents can supervise and
protect the child from potential harm from such people.
The consideration of child abuse and involvement with protective services does
not apply as a factor. There is no past child abuse or involvement of child protective services.
The parental duties performed by each party on behalf of the child slightly favors
Mother. Both parties have cared for the child for significant periods of time following
separation. However, while the parties were living together, Mother met most of the child's
4
daily needs as she was a stay-at-home Mother for most of that time. We believe both parties will
continue to provide for the child's needs in the future and both will perform parental duties.
Mother having performed most of the parental duties prior to the parties' separation combined
with the needs the child will have as she gets older, favors Mother having primary physical
custody.
The needs for stability and continuity in the child's education, family life and
community life favors a change in custody and one parent having primary physical custody
during the school week. The parties live about thirty (30) miles away from each other. Mother
lives in Slatington, Lehigh County, Pennsylvania, which is in the Northern Lehigh School
District. Mother proposes the child living with her and attending elementary school in that
school district for kindergarten this school year. Father lives in Forks Township, Northamton
County, Pennsylvania in the Easton School District. Father proposes the child living with him
and continuing to attend the Creative Learning Center for Kindergarten and then attending
elementary school for first grade in the Easton School District. This necessitates a change in the
current custody schedule because of the distance the parties reside from one another, and the
child starting school.
We find both parties are able to provide stability and continuity in the child's
education, family life and community life. Father believes the child would do better if she
remains for another year at the Creative Learning Center (CLC) for Kindergarten, before she
starts first grade next year in public school. He cites the friends and activities the child is
involved with at CLC. However, we believe the child is young enough, and socialized enough,
to find new friends and similar activities whether at CLC or in Kindergarten in a public school.
5
A decision about Kindergarten at a program like CLC or in public school is one of personal
preference. It was not shown that CLC is the necessary or better placement in Kindergarten for
the child. We also find both parents can and will adequately provide the care and attention to the
child's educational needs. Other than the need for a primary household for schooling at this
time, stability and continuity of the child's family life and community life can be met regardless
of whether in Mother's or Father's primary care. Therefore, this is not a factor favoring one
party or the other.
Both parties have extended family involved in the child's life. This will not be
changed by having one parent as primary custodian instead of the other. Father's parents live in
Maryland. Father visits with them in Maryland, and they come to see Father and child. A
change in the custody schedule will not effect this relationship. Nor will the selection of one
parent or the other as primary custodian. Mother's father lives two (2) miles from Mother. He
sees the child regularly, assists with child care, and enjoys his time with the child. A change in
the custody schedule, and whether one parent or the other is the primary custodian during the
school week will not impact this family relationship. Therefore, this factor does not favor one
party more than the other.
The child has no siblings, and therefore, this factor does not apply. The child's
preference does not apply as a factor either. The parties stipulated to the child not testifying due ·
to her age. We also find the child does not have the maturity or judgment to adequately express
a preference at this time. From the photographs submitted, and the testimony of the parties, it is
apparent she enjoys time with both parents and would want to see them both as much as possible.
6
There is a certain amount of animosity and mistrust between the parties, There is
some evidence, which we find credible, that Father has attempted to turn the child against
Mother. We do not find evidence that Mother does the same. Mother testified the child told her
to "stop taking Daddy's money" shortly after she filed for child support. Mother suspects Father
has discussed other adult issues with the child that is negative toward her as well. The parties'
friend, Megan Hutson, stated that she heard Father say negative things about Mother in front of
the child. We find Mother and Ms. Hutson credible in this regard. Father's other testimony
about Mother at the hearing, including reasons for the marital break-up and Mother's past
employment, together with his demeanor at the hearing also indicates he harbors very negative
feelings about Mother. For these reasons, we find Father has attempted to turn child against
Mother, and this factor slightly favors Mother.
Both parties are equally capable of maintaining a loving, stable, consistent and
nurturing relationship with the child that is adequate for the child's emotional needs. This factor
does not favor one party over the other. Both parents are close to and have a loving relationship
with the child. They are both consistently involved with the child. Both provide a nurturing
environment and relationship with the child. Both parents are stable.
Father believes his housing, work schedule, and proximity to open space and
schools creates a more stable and consistent relationship the child needs. Father lives in a two
(2) bedroom townhouse, with a large backyard, and close to a school. He works as an IT
consultant and is self-employed. Mother resides in a two (2) bedroom apartment in a third floor
walk-up apartment in the downtown area of Slatington. There is a park nearby and the school is
about one mile away. Mother works as a cashier at Aldi's in Lehighton, Pennsylvania, about a
7
20 minute drive from Slatington. Both parties have resided in the same housing since separation.
Although Father is more affluent, has a larger residence in a more suburban area, and usually
works from 9-5 Monday through Friday, we do not believe this provides a more stable,
consistent, or nurturing relationship with the child for the child's emotional needs.
Although Father's income, employment and housing is arguably better than
Mother's, there was no evidence of it impacting the child one way or another right now. Mother
provides adequate housing, she has child care while she is working and still spends quality time
with the child, and the child is doing fine. Therefore, we find this factor does not favor either
party over the other.
We do not find that either party is more likely than the other to attend to the daily
physical, emotional, developmental, educational and special needs of the child. Both can
adequately provide for these things for the child. The schools for both proposed households are
adequate. Both the Easton and Northern Lehigh School Districts have positives and negatives.
Easton is a much larger school district encompassing a city and suburban area; Northern Lehigh
is a smaller district that is suburban and rural. We don't see significant advantages or
disadvantages to either district.
Father has a more regular schedule, but he works outside the home and his
employment will also require some child care. Mother's schedule changes, but she has tried to
work mostly when the child was in Father's care. Her father assists with child care whenever
needed. Mother's father was credible and genuine, and we do not doubt that he will continue to
assist Mother and child. We believe Mother will continue to adjust her work schedule to
maximize time with the child, particularly during the school week. Therefore, we find both
8
parties are equally capable of providing for these needs of the child, that both will spend time
consistently with the child, and both can provide needed stability.
The proximity of the residences allows for a lot of shared time between the
parties. This includes weekends and weeknight visits, holidays, and other times with the parent
who does not have primary physical custody. The distance and locations between the parties
requires one parent to be the primary caretaker during the school week with significant time to
the non-custodial parent. This factor will be reflected in the attached Custody Order.
Both parties work and will need child care. Father believes he will need less child
care due to his schedule and because he is self-employed. He believes Mother's changing
schedule will require her to need more child care. Father also questioned the reliability and/or
relationship of Mother with her father, who will provide most of the child care for her. Father
works in I.T. and testified he works jobs until completed, usually within a 9-5 workday during
the school week. Father's child care is mostly through the CLC. We do not know what his plan
will be when the child attends public school next year. Mother and her father were credible.
Mother will adjust her schedule as much as she can and her father will provide child care
whenever needed. Therefore, we find both parties will be available for the child or have
adequate child care, and this factor does not favor either party.
As stated herein, the parties do not have an amicable relationship. There is a high
level of conflict between the parties. The parties showed little proof of any ability to cooperate
with one another. The parties do not talk to each other, beyond custody matters. Father does not
contact Mother regarding child care and pre-school. Mother does not always appear on time for
custody exchanges ( although we were not convinced as to the extent of that problem as there was
9
no testimony whether Mother called or not; or whether she was only a few minutes late, or
longer periods oftime). Neither party offers additional custody time to the other. Mother calls
and Father does not always answer. Mother has called after the time Father has put the child to
bed. Neither makes concessions for the other. We believe this conflict is caused by both parties
and will likely continue until they put the past aside, and work together to co-parent for their
daughter. The Order will provide specific times and location for changes of custody and times
for calling the child as a result of this conflict.
Both parties admitted to marijuana use in the past. Father also had a DUI in 2004.
Based upon the testimony, we find both parties credible that their use of marijuana stopped prior
to the birth of their daughter. Father stated his use was to medicate his Crohn' s disease, and new
medications have alleviated symptoms. Father had concerns about Ms. Hutson remaining in
mother's life because of past marijuana use. However, Ms. Hutson was credible that she used to
smoke marijuana with Father, and she stopped. Father brought up a failed drug test that caused
Mother to be fired from a personal care position in 2006. That was prior to the child's birth and
at the same time Mother and Father both admitted marijuana use. We find no evidence of any
current use. This is not a factor at this time.
There are no mental conditions of a party or the party's household. Father has
Crohn's disease; however, we are not convinced it affects his ability to care for the child. We
find his testimony credible that his medications keep symptoms to a minimum and that it has not
impacted his ability to care for the child. Mother has no physical conditions that are a concern.
Therefore, this is a non-factor.
10
Father raised a few concerns that do not fall directly under the enumerated factors.
We find they are not a negative impact to the child at this time. Father testified about the facts
occurring at the time the parties separated. Father stopped just short of blaming Mother for the
fire that burned down the parties' residence they were renting (her E-cigarette), but there was no
proof established at the time of hearing as to the actual cause so no blame will be assigned in this
custody matter.
Father also testified about Mother renting her current apartment in Slatington after
the fire, without telling Father, and then representing she, Father and child would all live at the
apartment. Father felt this was a poor choice and/or intended for the parties' eventual separation.
This is not relevant to this custody situation. It may explain one reason for the ultimate
separation of the parties, but not as to Mother's care of the child.
Father also testified about Mother going to Father's parents' house in Maryland,
where the child was staying after the fire, demanding custody of the child. Father believed it
showed Mother making a bad choice and scaring the child, while causing the police to be called.
Father insisted the parties agreed the child would stay at his parents for a while. However,
testimony also confirmed that Father had filed for custody and was planning to keep the child at
his parents' home until the time of the custody conference. We find this incident has no bearing
on Mother's ability to care for or parent the child. This was a course of conduct consistent with
parties separating and anticipating a custodial fight.
Father also testified about his suspicion that Mother has returned to a prior
occupation of stripping. Mother denied this and we find her credible. Mother testified she has
not worked as a stripper since 2006, three years before the child was born. We also note that
11
Father met Mother while Mother was working at a strip club called Spankey's West, in
Brodheadsville, Pennsylvania, which he frequented. Father apparently had no problem with that
occupation at the time he met Mother. She continued in that occupation until at or about the time
of the parties' marriage on May 27, 2006. Therefore, this is not a factor.
Father also provided extensive testimony and evidence concerning text messages
Mother was sending and receiving with a former high school boyfriend. The texting was of a
sexual nature. It appears to have been the catalyst for the marital breakup. The content of the
texting itself has no correlation with Mother's ability to parent the child appropriately.
Father produced the actual text messages sent on a day in April 2014. Father
contends the times of the texts coincide with times that the child was in Mother's care that day.
Father appears to have introduced the actual text messages into evidence to show not only what
he believes was inappropriate supervision due to the number of texts sent, but also the content of
the texts. The texts were between two consenting adults and the content has no bearing on this
matter. We note Father even notified Mother's employer about one of the texts that included a
photo taken in the bathroom of Mother's work place prior to her shift. These matters relate to
Father's feelings about his relationship with Mother and the marital breakup, and not something
that is relevant here, concerning parenting ability and the best interests of the child.
Father's concerns about the number of texts and location of texts sent and
received on a day she had the child in the car with her in April 2014 are more legitimate. Father
expressed concern Mother was not watching the child closely and/or texting while in the car with
the child. Mother testified that she regretted the texting on the day in question. She stated most
were sent at a park she went to with her daughter, and in the parking lot of stores. She said the
12
ones sent while driving were on Route 209 on the way to work, when the child was not with her.
Father's exhibit of a map showing the locations of the texts plotted by coordinates, confirms
Mother's testimony. Therefore, we are not as concerned as Father with the texts sent on that day
in April 2014. We agree time with the child would be better spent engaging with the child
instead of sending repeated texts. Also, Mother should not text while driving, especially with her
child in the car, due to the dangers of an accident. However, this incident does not overcome the
other factors in Mother's favor which have greater weight.
Taking all of these factors together, we find Mother should have primary physical
custody, with substantial time with Father on weekends, a weeknight, shared holidays and
summer vacation. The parties should continue to share legal custody. The parties shall follow
the attached Order, unless they can mutually agree otherwise.
13
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEAL TH OF PENNSYLVANIA
B.c.
NO. 469 DR 2014
NO. 3528 CV 2014
Plaintiff
vs.
']'". v; - C, .
Defendant IN CUSTODY
ORDER
AND NOW, this 1 ``day of August, 2015, after a hearing before the
B.c c{
Court, wherein Father, , was present represented by Michelle F. Farley, Esquire,
T. 1v\. c.,
and Mother, , was present represented by Nancy G. Aaroe, Esquire, it is the
s·. c..
Order of this Court with respect to the parties' minor child, 111111, born February 5, 2010, as
follows:
BACKGROUND
This hearing was scheduled upon Father's Petition for Modification. Mother filed
a Counter-Petition for Modification as well.
1. SHARED LEGAL CUSTODY
Mother and Father shall share legal custody of their child. For purposes of this
Order, "shared legal custody" shall mean:
14
(a) All decisions affecting the child's growth and development, including but not
limited to education, choice of school, medical and dental treatment, religious training, athletic
pursuits and extracurricular activities shall be considered major decisions, and shall be made by
the parties jointly after discussion and consultation with each other with a view toward obtaining
and following a harmonious policy in the child's best interest;
(b) Each party agrees to keep the other informed of the progress of the child's
education and social adjustment. Each party agrees not to impair the parties' right to shared legal
or physical custody of the child. Each party agrees to give support to the other in the role as
parent and take into account the consensus of the other for the physical and emotional well-being
of the child with the recognition that their life styles may be different;
(c) While in the presence of the child, neither party shall make or permit any other
person to make any remarks or do anything which would in any way be construed as derogatory
or uncomplimentary to the other parent. It shall be the express duty of each parent to uphold the
other parent as one whom the child should love and respect;
(d) It shall be the obligation of each parent to make the child available to the other
in accordance with the following schedule and to encourage her to participate in the plan hereby .
set forth;
(e) Each parent shall have the duty to notify the other of any event or activity that
could reasonably be expected to be of a significant concern to the other parent or to the child;
(f) The parents shall communicate with one another concerning any parenting
issues requiring consultation and agreement regarding a proposed modification of the custody
schedule which may, from time to time, become necessary, and shall specifically not use the
15
child as a messenger at any time. Neither party shall discuss with the child any proposed
changes to this schedule or any other issue requiring consultation and agreement prior to
discussing the matter and agreement with the other parent;
(g) With regard to any emergency decisions which must be made, the parent with
whom the child is physically residing at the time shall be permitted to make a decision
necessitated by the emergency without consulting the other parent in advance; however, that
parent shall inform the other of the emergency and consult with him or her as soon as possible.
- I
Day to day decisions of a routine nature will be the responsibility of the parent having physical
custody at that time;
(h) Mother and Father agree to share complete and full information from any
doctor, dentist, teacher or other authority, and each parent may have copies of any reports given
to them as a parent. Each parent shall also request any authority to forward copies to both
parents at their respective addresses. Such documents include, but are not limited to, medical
reports, athletic and school reports, birth certificates, etc. Both parents may and are encouraged
to attend conferences and activities with the child. Both parents shall be listed with any school or
day care center as parents to be contacted in the event of an emergency and to be notified
regarding school events. Mother and Father agree to share copies of any school notices in a
timely fashion;
(i) Both parents shall attempt to avoid scheduling any activities or appointments
for the child which would require her attendance or participation during the time when she is
scheduled to be in the physical custody of the other parent without the parent's prior approval;
16
however, both parents agree to cooperate and be flexible in accommodating the child's scheduled
acti vi ti es.
2. SHARED PHYSICAL CUSTODY
Mother shall have primary physical custody of the minor child subject to Father's
periods of partial physical custody as follows:
(a) Every other weekend from 5:30 p.m. Friday to 7:30 p.m. Sunday, beginning
with Friday, September 4, 2015;
(b) Every Wednesday from 5:00 p.m. to 7:30 p.m., beginning Wednesday,
September 2, 2015;
(c) Starting the first full week of the child's summer vacation from school, Father
shall have one (I) full week of uninterrupted physical custody, then Mother shall
have one (1) full week of uninterrupted physical custody and continuing on a
rotating basis until the weekend prior to the child's first day of school.
(d) Any other time the parties mutually agree.
3. TRANSPORTATION
In order to facilitate the exchange of partial physical custody of the minor child, it
shall be the responsibility of the parties to pick up and deliver the child to the other parent in the
parking lot of the Golden Corral Restaurant located at the Lehigh Valley Mall, Whitehall,
Pennsylvania, in order that each parent may exercise their respective rights of partial physical
custody of the minor child. Mother and Father shall transfer the child in a registered and insured
vehicle, said vehicle shall be operated by an insured and licensed driver. Appropriate passenger _
restraint devices shall be. utilized by the child while being transported. The child shall be
17
transported with an appropriate car seat which complies with the laws of the Commonwealth of
Pennsylvania in the back seat of the motor vehicle.
4. HOLIDAYS
The following holiday schedule supersedes all other partial and vacation custody
schedules established in this Order:
The parties shall alternate the major holidays. The alternating holiday schedule
shall include the holidays of New Year's Day, President's Day, Easter, Memorial Day, Fourth of
July, Labor Day, and Thanksgiving. Mother shall have partial custody on Mother's Day and
Father shall have partial custody on Father's Day. Those periods of partial custody for which no
times for exchange were heretofore scheduled shall begin at 9:00 a.m. and end at 7:30 p.111.
These periods of Holiday custody shall begin with Mother on Labor Day 2015.
The parties shall alternate Christmas. In 2015, Father shall have physical custody
of the child from Noon on Christmas Eve continuing until Noon on Christmas Day. Mother shall
have physical custody of the child from Noon on Christmas Day until Noon on December 26th.
The above period shall alternate each and every year.
In the event that a holiday to which Mother or Father is entitled shall fall within a
day prior or subsequent to a weekend period of partial custody to which Mother or Father would
also be entitled, that period of weekend partial custody shall be extended to include Mother's or
Father's period of holiday partial custody.
5. TELEPHONE ACCESS
Each parent shall allow the other parent to have private, liberal and reasonable
telephone access with the minor child during that parent's period of partial custody. This shall
18
. I
include the child initiating such contact. Reasonable telephone access shall be construed to be
during the child's normal waking hours, emergencies excepted. If the calling parent leaves a
message at the residence of the custodial parent, custodial parent shall require the child to return
the telephone call to the non-custodial parent within a reasonable period of time. Telephone calls
shall not be ignored by the parties.
6. NOTICE: CHANGE OF RESIDENCE OR RELOCATION
Before a party may relocate the child or change the residence of the child in a
manner which significantly impairs the ability of other individuals with custody
rights to the child to exercise those rights, the party must comply with the requirements and
obligations of Pennsylvania's Custody Law set forth in 23 Pa. C.S.A. 5337.
BY THE C°VRT:
' l '
Ufa
DAVID J. WILLI
I
l
cc: Michelle F. Farley, Esquire
Nancy G. Aaroe, Esquire
Plaintiff
Defendant
Custody Conciliation
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