J.F. v. J.F. ( 2016 )

J-A02008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.F. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
J.F.
Appellant No. 1571 MDA 2015
Appeal from the Order Entered August 13, 2015
In the Court of Common Pleas of Berks County
Civil Division at No: 10-15544
BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 21, 2016
Appellant J.F. (“Father”) appeals from the August 13, 2015 order of
the Court of Common Pleas of Berks County (“trial court”), denying Father’s
petition for shared custody and granting J.F. (“Mother”) primary physical
custody of the parties’ minor twin daughters, R.F. and A.F. (“Children”).
Upon review, we affirm.
On September 9, 2011, the trial court entered a custody order,
incorporating an agreement by the parties pursuant to which Mother was
awarded, inter alia, primary physical custody and Father partial physical
custody. On August 1, 2013, Father filed a petition to modify custody,
seeking shared physical custody of Children. On September 17, 2013,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Mother filed an answer to Father’s modification petition, seeking an increase
in her and a reduction in Father’s custodial time with Children. The trial
court held a three-day custody trial, at which both parties testified and
presented the testimony of various witnesses. Following trial, the trial court
issued a decision and order, denying Father’s petition for shared physical
custody and increasing Mother’s custodial time with Children. In so doing,
the trial court rendered the following factual findings:
1. [Mother] is an adult individual currently residing . . . [in]
Douglasville, Berks County Pennsylvania 19518.
2. [Father] is an adult individual currently residing . . . [in]
Royersford, Montgomery County, Pennsylvania, 19468.
3. The parties are the natural parents of two minor twin
daughters, R.F. and A.F., born April 21, 2009 . . . .
4. The parties were formerly husband and wife, having been
married on July 5, 1997 in Berks County, Pennsylvania. The
parties separated in the summer of 2010 and a [d]ivorce
[d]ecree was signed on February 17, 2012.
5. Since the time of separation, Mother has been the primary
custodian of the Minor Children.
6. Following separation, Mother and [Children] moved to
[m]aternal [g]randparents home . . . [in] Douglasville,
Pennsylvania, which was only several blocks from the marital
home.
7. Maternal grandparents have now relocated to Hazelton and
Mother rents the home from her parents.
8. Father remained in the marital home following separation
and saw [Children] on a regular basis until he moved in with his
then girlfriend now wife [A.F.] in Montgomery County.
9. The distance between the parties [sic] home is
approximately 35-40 minutes.
10. [A.F.] has three children: L.M. (age 15), A.M. (age 13) and
T.M. (age 9). She recently obtained a 50/50 custody agreement
with her ex-husband.
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11. Both parties are college graduates, both are teachers and
both hold Master’s Degrees and additional credits.
12. Mother is employed at Owen J. Roberts School District
where she teaches Fourth Grade.
13. Mother has been employed by the Owen J. School District
for approximately twenty (20) years and her work schedule is
Monday through Friday during the school year from
approximately 7:50 a.m. to 3:15 p.m. She has most of the
same holidays during the school year as [Children] and does not
work during the summer.
14. Father has been employed as a special education teacher
for the Spring-Ford Area School District for approximately eleven
(11) years and his work schedule is similar to [M]others [sic],
although his work day begins at 7:15 a.m.
15. Father’s wife, [A.F.], is also employed by the Spring-Ford
Area School District.
16. Mother resides within the Daniel Boone School District.
17. Father resides within the Spring-Ford Area School District.
18. [Children] are entering first grade and attending the Daniel
Boone School District.
19. [Children] attend St. Paul’s Daycare both prior to and after
school. St. Paul’s is minutes from [M]other’s home and provides
transportation to and from Daniel Boone School District.
20. Mother grew up in the Daniel Boone School District and
after both parties attended college at Slippery Rock University,
Father agreed to move to the Daniel Boone School District where
they built their marital home.
21. The Daniel Boone School District is a good school district
providing quality education.
22. Neither party, including Father’s wife, has a criminal
record.
23. On December 8, 2010, following separation, Mother filed a
Custody Complaint seeking primary custody of the minor
children.
24. On March 2, 2011, [the trial court] entered a Custody
Evaluation Order, whereby Dr. Peter Thomas was directed to
perform a custody evaluation of the [p]arties. Dr. Thomas
completed the report, which is part of the record, dated March 6,
2011. This evaluation recommended Mother have primary
physical custody.
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25. On September 8, 2011, the parties, by agreement, entered
into a Custody Order which the parties currently follow, whereby
the parties share legal custody and Mother has primary physical
custody. The order [sic] Custody Order provides, inter alia, that
the parties share custody of [Children] during the school year on
a four week rotating schedule pursuant to the agreement as
follows:
During the school year:
Week one: Mother has custody of [Children] from Sunday
at 6:30 p.m. until Wednesday morning when she will
deliver [Children] to daycare. Father has custody from
Wednesday, when he picks [Children] up from daycare
until Friday morning when he delivers [them] to daycare.
Week two: Father has [Children] from Wednesday after
daycare until Sunday at 6:30 p.m. Mother has [them]
from Sunday at 6:30 p.m. until the following Wednesday
morning when she delivers [Children] to daycare. Week
three: Father has [Children] after daycare until Friday
morning when he delivers [them] to daycare. Mother has
[Children] from Friday after daycare until the following
Thursday morning, when [s]he delivers [Children] to
daycare. Week four: Father has [Children] from Thursday
after daycare until Sunday at 6:30 p.m.
During the summer:
The parties share custody of [Children] during the
summer, which spans from June 10 until August 25 on a
two[-]week rotating schedule pursuant to the agreement
as follows: Week one: Father has [Children] Sunday at
6:30 p.m. until Wednesday at 6:30 p.m. and again on
Friday at 6:30 p.m. until Sunday at 6:30 p.m. Mother has
[Children] from Wednesday at 6:30 p.m. until Friday at
6:30 p.m. Week two: Mother has [Children] from Sunday
at 6:30 p.m. until Wednesday at 6:30 p.m. and again on
Friday at 6:30 p.m. In addition, the Custody Order
directed that the custodial parent shall make reasonable
efforts to facilitate phone contact between the non-
custodial parent and [Children] between 7:40 p.m and
8:00 p.m. each evening.
26. The Current Custody Order was entered prior to [Children]
being school age and prior to [Father] relocating to Montgomery
County.
27. On August 1, 2013, weeks after his marriage, Father filed a
Petition to Modify Custody, seeking equal time with the Children.
28. On September 17, 2013, Mother filed an Answer to Father’s
Petition to Modify Custody, requesting an increase in her time
and a reduction in Father’s custodial time with [Children].
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29. On September 27, 2013, the [p]arties were ordered to
participate in an Updated Custody Evaluation with Dr. Thomas in
consideration of Father’s remarriage and the addition of Father’s
step-children into [Children’s] lives. Father objected to his Order
and petitioned the Court for the removal of Dr. Thomas, a
motion that was denied. Dr. Thomas completed the report,
which is part of the record and is dated February 12, 2014. Dr.
Thomas recommends Mother continue to have primary physical
custody.
30. In 2014, Father filed for Special Relief, seeking to have
[Children] attend kindergarten in the Spring-Ford School District
despite the fact that Mother had primary custody and the parties
had agreed to raise their children in the Daniel Boone School
District where [M]mother was raised and is living. This Relief
was denied by th[e trial court].
31. On January 6, 2015, th[e trial court] appointed Claire
Monfaro, M.A.-L.P.C. of Berkshire Psychiatric to perform
counseling for [Children].
32. Ms. Monfaro has recommended that counseling of [Children]
continue.
33. Ms. Monfaro testified to lack of communication and co-
parenting.
34. On March 2, 2015, per Father’s request, th[e trial court]
appointed Lauren Marks, Esq. Guardian ad Litem (“GAL”), with
Father paying 100% of the costs.
35. The GAL testified that Father is rigid and refuses to accept
opinions which do not match his own.
36. The GAL found [Children] have been influenced by Father in
their statements regarding equal time with Mother.
37. The GAL did an extensive report and investigation into this
case and recommends Mother have primary physical custody.
38. Mother resides in a nice home in an area where she grew up
and has numerous neighbors and friends. [Children] have their
own room at [M]other’s house.
39. Father and his wife reside in a nice home in Montgomery
County in a nice neighborhood. His wife’s three minor children
are at the home 50 percent of the time. [Children] share a
bedroom with each other at Father’s home.
40. Since birth, [Children] have attending [sic] Reading
Pediatrics in Wyomissing, Berks County.
41. Father unilaterally attempted to have a second Pediatrician
for [Children] in Montgomery County, Allstar Pediatrics.
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42. Allstar Pediatrics informed Father they could only be used in
case of emergencies.
43. Father has obsessed [sic] with Mother’s whereabouts and
what is going on in her home by following Mother’s friends on
social media sites, enlisting the help of a neighbor to sneak into
Mother’s home to take pictures and by speaking to [Children].
44. Father has obsessed over minor child’s [sic] R.F.’s diagnosis
of [f]ructose [i]ntolerance by seeking the opinion of Reading
Pediatrics, doctors at Children’s Hospital of Philadelphia, doctors
at Dupont Medical and a dietician. All agreed that [R.F.’s]
fructose diet need[s] to me [sic] monitored with a good diet.
45. Father has allowed his wife [A.F.] to overstep her bounds as
a step-parent by allowing her to attend a [d]octor’s visit at
DuPont without the knowledge of Mother and without the
knowledge of the [d]octors who have [A.F.] listed as mother in
their reports.
46. [R.F.]. rarely complains of stomach issue [sic] when in the
care of Mother but does complain when in the care of Father.
47. Father is oblivious [of] his controlling nature as is evident of
the overabundance of documents, many of which were not in his
favor, he submitted to the GAL and various experts in his case.
48. If mother is in need of babysitting for [Children] she uses
her parents.
49. [Children] have a loving, bonded relationship with their
maternal grandparents.
50. Father does not have a close relationship with his family as is
evident by his sister having to contact Mother after the divorce
so that she could see and spend time with [Children].
51. Mother actively participates with [Children] in a variety of
school and community functions.
52. Father actively participates with [Children] more at home
than the community.
53. During the parties [sic] marriage they attended UCC church,
however Father decided to have [Children] baptized [C]atholic.
54. Father has obsessed over a relationship Mother has had off
and on again with [M.K.], from South Carolina. Father insists
Mother is going to relocate.
55. Mother has no intentions of relocating. Mother plans on
maximizing her Pennsylvania teacher pension for retirement
purposes.
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56. Father and Mother are not able to effectively co-parent.
Trial Court Opinion, 8/13/15, at 1-7. Based on the foregoing findings, the
trial court concluded that the custody factors set forth in 23 Pa.C.S.A.
§ 5328 weighed in favor of awarding Mother primary physical custody.
Section 5328 factors to be considered are as follows.
(a) Factors.--In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(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.
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(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(a).1 The trial court provided a detailed discussion of
each Section 5328 factor.2 With respect to the first factor, the trial court
determined that Mother “[was] more likely to encourage and permit frequent
and continuing contract between [Children] and Father.” Id. at 9. The
second factor, the trial court determined, favored Mother even though the
court did not believe “that [Children] [were] at risk of abuse by either
Mother or Father.” Id. 10. The trial court determined that the third factor
favored Mother in part because Father spent the majority of his time with
Children at home when they were not at their extra-curricular activities. Id.
____________________________________________
1
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). Because
Father’s petition to modify was filed prior to the effective date of the
subsection, the subsection does not apply to the present case. See § 6 of
Act of December 18, 2013, P.L. 1167, No. 107, effective 1/1/14.
2
In expressing the reasons for its decision, there is no required amount of
detail for the trial court’s explanation of the Section 5328 factors; 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).
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at 10-12. The trial court further determined that the fourth factor also
favored Mother because Mother would provide stability and continuity in
Children’s education, family life and community life. Id. at 12-13. The trial
court determined that the fifth factor, relating to the availability of extended
family, also favored Mother. Id. at 15. The sixth and seventh factors
favored neither parent. Id. at 15-16. The eighth factor favored Mother in
part because Father engaged in “borderline stalking” and questioned
Children about Mother’s personal affairs. Id. at 17-18. The ninth factor
likewise favored Mother because she, compared to Father, was more
nurturing toward Children and Children expressed closeness to Mother. Id.
at 18. The trial court determined that the tenth factor favored Mother in
part because Mother socialized Children “on a regular basis with activities
and friends outside of the home.” Id. at 20. The eleventh and twelfth
factors favored Father as he chose to relocate to Montgomery County. Id.
at 20-21. Factors thirteen and fourteen did not favor either party. Id. at
21-22. The trial court determined that the fifteenth factor favored Mother in
part because of Father’s “controlling personality.” Id. at 23. The final factor
did not favor either parent. Id. at 24.
Father timely appealed to this Court. Following Father’s filing of his
Pa.R.A.P. 1925 statement of errors complained of on appeal, the trial court
issued a Pa.R.A.P. 1925(a) opinion largely incorporating its August 13, 2015
decision. Nonetheless, in its Rule 1925(a) opinion, the trial court addressed
Father’s contention that its August 13, 2015 order failed to consider “the
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possible effect on Children” of the new custody arrangement and deprived
Children of “Father’s care for extended periods during the school week.”
Trial Court’s Rule 1925(a) Opinion, 10/6/15 at ¶ 5. Disagreeing with Father,
the trial court noted that the Section 5328 factors did not require it to
address this argument.3 Id. The trial court, throughout its Rule 1925(a)
opinion, noted that it is decision was guided by the best interest of Children.
The trial court next addressed Father’s contention that it awarded less
custodial time to Father than recommended by the experts, Dr. Thomas and
the GAL. The trial court noted that it considered the experts’
recommendation, but because it heard testimony from witnesses not
interviewed by the experts, it decided to award Father less custodial time “to
promote stability and consistency during the school week.”4 Id. at ¶ 4(a).
Father next argued that the trial court’s finding of fact number 9—the
____________________________________________
3
We observe that Father’s contention is adequately addressed by the
custody factors set forth in Section 5328. It is worth noting that whenever a
trial court weighs the custody factors, children often are bound to be
deprived of the care of one parent.
4
Although a trial court is not required to accept the conclusions of an expert
witness in a child custody case, it must consider them, and, if the trial court
chooses not to follow the expert’s recommendations, its independent
decision must be supported by competent evidence of record. Nomland v.
Nomland, 813 A.2d 850, 854 (Pa. Super. 2002) (citations omitted).
Therefore, it is not the function of this Court to determine whether the trial
court reached the “right” decision; rather, we must consider whether, “based
on the evidence presented, given due deference to the trial court’s weight
and credibility determinations,” the trial court erred or abused its discretion
in awarding custody to the prevailing party. Hanson v. Hanson, 878 A.2d
127, 129 (Pa. Super. 2005).
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distance between the parties’ home is approximately 35-40 minutes—was
not supported by the record. The trial court concluded that, even though its
time estimate was off by about 10 minutes, the commute from Father’s
house was still significant.5 Id. at ¶ 4(c). The trial court lastly addressed
Father’s contention that its August 13, 2015 order “increases the number of
parent-to-parent custody exchanges, despite the trial court’s finding that
fewer custody exchanges would be appropriate to minimize” interaction
between Father and Mother. Id. at ¶ 4(d). In rejecting this argument, the
trial court noted that the August 13, 2015 custody order was in the best
interest of Children and that “[e]xchanges between Mother and Father are
necessary” and “only incidental to the custody arrangement’s purpose.” Id.
On appeal,6 Father repeats the foregoing issues for our review,
reproduced here verbatim:
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5
As Mother aptly notes, “Father’s argument is pure inconsequential
nitpicking.” Mother’s Brief at 49. The precise time between the parties’
home is immaterial, so long as the trial court’s finding that the commute was
significant has support in the record. Here, the parties agree that the
commute between the parties’ homes is 20 to 25 minutes. Father’s Brief at
64; Mother’s Brief at 49.
6
In reviewing a child custody order,
[O]ur our scope is of the broadest type and our standard is
abuse of discretion. We must accept findings of the trial court
that are supported by competent evidence of record, as our role
does not include making independent factual determinations. In
addition, with regard to issues of credibility and weight of the
evidence, we must defer to the presiding trial judge who viewed
and assessed the witnesses first-hand. However, we are not
bound by the trial court’s deductions or inferences from its
(Footnote Continued Next Page)
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1. Whether the trial court erred and/or abused its discretion in
failing to address the fact that [Children] will now be deprived
of Father’s care for extended periods during the school week
and failed to discuss the possible effect on [Children] of the
proposed transfer of custody?
2. Whether the trial court’s analysis of the Section 5328 factors
is supported by the record?[7]
3. Whether the trial court’s decision to award Father less
custodial time than recommended by the custody evaluator,
Dr. Thomas, less time than recommended by [GAL], Lauren
Marks, Esq., and less time than Father had spent with
[Children] under the parties’ existing custodial arrangements
[sic] over the past four (4) years is supported by the record?
4. Whether the trial court erred in repeatedly misstating the
amount of travel time for [Children] in traveling between the
parties’ homes, school, and daycare?
5. Whether the trial court erred in entering an [o]rder that
significantly increases the number of parent-to-parent
custody exchanges, despite the [c]ourt’s finding that fewer
custody exchanges would be appropriate to minimize the
frequency of interaction between Mother and Father[?]
Father’s Brief at 8-9.8,9
_______________________
(Footnote Continued)
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.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
“When a trial court orders a form of custody, the best interest of the child is
paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)
(citation omitted); see Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super.
2006) (“The primary concern in any custody case is the best interest of the
child. The best-interest standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual well-being.”) (citation omitted).
7
Father abandons his challenge to the sixteenth factor on appeal. See
Father’s Brief at 54.
8
In his second argument, Father essentially advances his version of the
facts and invites us to accept the same. We, however, are obliged to reject
(Footnote Continued Next Page)
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After careful review of the parties’ briefs, the record on appeal, and
the relevant case law, we conclude that the trial court’s August 13, 2015
decision and its Rule 1925(a) opinion, both authored by the Honorable M.
Theresa Johnson, cogently dispose of Father’s issues on appeal. See Trial
Court Opinion, 8/13/15, at 8-24; Trial Court’s Rule 1925(a) Opinion,
10/6/15. We, therefore, affirm the trial court’s August 13, 2015 order. We
direct that a copy of the trial court’s August 13, 2015 decision and its
October 6, 2015 Rule 1925(a) opinion be attached to any future filings in
this case.
Order affirmed.
Judge Panella joins the memorandum.
Justice Fitzgerald notes his dissent.
_______________________
(Footnote Continued)
the invitation as we are bound by the trial court’s findings. Johnson v.
Lewis, 870 A.2d 368, 372 (Pa. Super. 2005) (“The fact-finder is free to
believe all, part, or none of the evidence, and this Court will not disturb the
trial court’s credibility determinations.”).
9
With the exception of finding of fact number 9, as alluded to in Father’s
fourth argument, Father fails to challenge the trial court’s factual findings.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2016
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Circulated 03/31/2016 08:50 PM
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RULE 1925(!1(2)(ii) Opinion October-6, 201">
On July 27, 28 and 30, 2015, a custody bench trial was held before this Comito
determine the parties' custody of their minor children, R.F. and A.F. On August 13, 2015 the
Court entered a Decision and Order after consideration of the testimony of the parties, testimony
of both expert and fact witnesses, as well as the (?.arties' respective exhibits. The Decision and
..
Order is attached and is specifically incorporatedherein. [August 13, 2015 Decision and Order,
Exhibit "A"]. On September 11, 2015, Defendant J.. Feillm timely appealed this Court's
August 13, 2015 Decision and Order. The appeal was designated as a Children's Fast Track
Appeal. On the same day, Defendant filed his Concise Statement of Errors Complained of on
Appeal, which provides:
1. The Trial Court erred and/or abused its discretion in analyzing the factors to
be considered in a custody matter pursuant to 23 Pa.C.S.A. §5328, as the
Court's analysis (a) is not supported by the record, (b) is based on only
portions of the record; and/or (c) is based on predictions/ speculation about
what may occur in the future.
2. The Trial Court erred and/or abused its discretion in limiting the ability of
each party to call witnesses at trial and/or limiting the evidence to be
submitted by each party at trial ruling on the relevance of said evidence, and
without making a finding which wbuld otherwise support exclusion of the
evidence. . · ! .,·i·
3. The Trial Court erred and/or' abusect' its discretion in summarily rejecting the
expert testimony of Dr. Shanken-Kaye.
4. The Trial Court erred and/or abused its discretion in that its Decision and
Order is not supported by the record and/or is based only on portions of the
record, including, but not limited to, the following:
•( I'
t;1.Ht a.t 'The Triitt court awarded Father less custodial time then recommended by the
custody evaluator, Dr. Thomas, less time than recommended by the Guardian
Ad Litem, Lauren Marks, Esq., and less time than Father had spent with the
children under the parties' existing custodial arrangements over the past four
(4) years.
b. The Trial Court erred and/or abused its discretion in reviewing evidence,
during the trial, which was not admitted into the record.
c. The Trial Court repeatedly misstated the amount of travel time for the children
'· . ,· •-in travelmg between the parties' homes, school, and daycare, and classified
Father's move from Douglasville to Royersford as a "relocation" without
addressing the statutory definition of relocation nor the statutory factors which
must be considered in a relocation case.
d. Despite the Court's finding that fewer custody exchanges would be
appropriate to minimize the frequency of interaction between Mother and
Father, the Court's Custody Order significantly increases the number of
parent-to-parent custody exchanges (as compared to the prior custodial
arrangement). ,·
5. The Trial Court erred and/or abused. its discretion in failing to address the fact
that the Children will now be deprived of Father's care for extended periods
during the school week and failed to discuss the possible effect on the
Children of the proposed transfer of custody.
[Defendant/ Appellant's Concise Statement of Errors Complained of on Appeal].
To the extent that the errors complained of in Appe11ant's Concise Statement are not covered
by the Decision and Order, the Court addresses Appellant's averrnents in tum.
l , The Trial Court erred and/or abused its discretion in analyzing the factors to be considered in
a custody matter pursuant to 23 Pa.C.S.A. §5328, as the Court's analysis (a) is not supported
by the record, (b) is based on only portions of the record; and/or (c) is based on predictions/
speculation about what may occur in the future.
Initially, the Court notes that on August 25, 2015, Father's attorney who represented him
at trial withdrew her appearance. On the same day, Father's current attorney entered her
appearance. Father's appellant attorney, who d'r~'fted and signed Father's Concise Statement,
was not present during the July 27, 28 and 30, 20 l S trial. In addition, Father's Concise
Statement, filed September 11, 2015, was drafted without the benefit of a review of the trial
transcript as the Notice of Lodging Transcript of Record on Appeal was filed on September 24
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2015. Thus, respectfully, Father's appellant attorney drafted the Concise Statement without
::1 observing the trial or reading the trial transcript.
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"The Custody Act requires only that the trial court articulate the reasons for its custody
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decision in open court or in a written opinion or order taking into consideration the enumerated
factors." M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013) citing 23 Pa.C.S.A. §§ 5323(d),
5328(a). In reaching a custody decision, the best interest of the children in paramount. J.R.M. v.
J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011).
Here, the Court, in writing its twenty-seven page Decision and Order, took into
consideration the entire record as well as the sixteen enumerated actors in making its custody
determination. The Court reached its decision, holding paramount the best interest of the minor
children A.F. and R.F. In addition, the Court did not base its decision on future predictions or
speculation. Rather, the Court based its opinion on what is in the best interest of the children.
2. The Trial Court e1Ted and/or abused its discretion in limiting the ability of each party to call
witnesses at trial and/or limiting the evidence to be submitted by each partv at trial ruling 011
the relevance of said evidence, and without making a finding which would otherwise support
exclusion of the evidence.
A three day trial was held wherein both parties were provided a full opportunity to
present their respective cases. In addition, it is well established that the "court may exclude
relevant evidence if its probative value is outweighed by a danger of. .. undue delay, wasting
time, or needlessly presenting cumulative evidence." Pa.R.E., Rule 403. "Admission of
evidence is within the sound discretion of the trial court and will be reversed only upon a
showing that the trial court clearly abused its discretion." Com. v. Drumheller, 808 A.2d 893,
904 (Pa. 2002).
Here, Father does not point to a specific instance, either prior to or during the trial, where
this Court improperly limited the witnesses or evidence he sought to introduce. Provided that
Father does identify a specific instance where this Court improperly limited evidence, this Court,
,, as the gatekeeper of evidence, did not abuse its discretion in doing so.
3. The Trial Court erred and/or abused its discretion in summarily rejecting the expert
testimonv of Dr. Shanken-Kaye.
"[W]hen expert evaluation is contradicted ... the [trial court] abuses its fact finding
discretion if it totally discounts expert evaluation." King v. King, 889 A.2d 630, 632 (Pa. Super.
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2005) quoting Nomland v. Nomland, 813 A.2d 580, 854 (Pa. Super. 2002). "While a trial court
is not required to accept the conclusions of an expert witness in a chi Id custody case, it must
consider them, and if the trial court chooses not to follow the expert's recommendations, its
independent decision must be supported by competent evidence of record." M.A.T. v. G.S.T.,
989 A 2d 11, 20 (Pa. Super 2010). Here, Dr. Shanken-Kaye' s testimony and report were
contradicted by Dr. Thomas' testimony and expert reports as well as by Claire Monfaro's
evaluation and testimony.
A trial court is "under no obligation to delegate its decision making authority to [an
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expert]." M.A.T. v. G.S.T., 989 A.2d at 19. In. ~:~aching a custody decision, the Court
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considered Dr. Shanken-Kaye's testimony as well as his expert report. In doing so, the Court
found significant that Dr. Shanken-Kaye did not conduct any interview of the participants
himself. Rather, he relied on Dr. Thomas' notes and report. As stated provided in the Decision
and Order, Dr. Shanken-Kaye's major criticisms of Dr. Thomas' reports were: 1. Dr. Thomas did
not specifically address each on the of sixteen factors in 23 Pa.C.S.A. §5328; and 2. Dr. Thomas
did not commit enough hours when he conducted interviews and observations of the parties and
children to produce a competent recommendation. However, as stated in the Decision and
Order, 23 Pa.C.S.A. § 5328 applies to the courts alone and does not require a custody evaluator
such as Dr. Thomas to address each or any of the sixteen factors. Additionally, Dr. Thomas
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testified that he in fact invested more hours than required by the rules and ethics of psychiatry.
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; In sum, the Court did not summarily reject Dr. Shanken-Kaye's testimony. Rather, the court
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considered his testimony and disagreed.
4. (a) The Trial court awarded Father less custodial time then recommended by the custody
evaluator, Dr. Thomas, less time than recommended by the Guardian Ad Litem, Lauren
Marks, Esg., and less time than Father had spent with the children under the parties' existing
custodial arrangements over the past four (4tyears.
Dr. Thomas interviewed the parties of this custody action the minor children subject to
this custody action, A.F. and R.F., L.,...., AIIIII and T. M., Father's step-children, and
between Mother and Father, individually, and their interaction and dynamic with A.F. and R.F.
Lauren Marks, Esq., Guardian Ad Litem (hereinafter, the "GAL"), met with the parties and
minor children R.F. and AF. She conducted a home assessment of Father's home wherein she
met Father's wife, A-,F.S and her children L-,., A... and T.. M•. At trial,
the Court had the opportunity to observe sever~L'fiit,nessesthat neither Dr. Thomas nor the GAL
met with or interviewed in preparation of their respective reports. The testimony of the
witnesses at trial influenced the Court to enter a custody order that differs from the
recommendations of Dr. Thomas and the GAL.
Both Dr. Thomas and the GAL recommended that the children have one overnight per
week with Father during the school year. In an effort to promote stability and consistency during
the school week, the Court instead ordered that the children visit with Father every Wednesday
from 4:30 p.m. to 6:30 p.m. When the children are with Father, their bedtime is 7:00 p.m., much
earlier than their bedtime when they are in Mother's custody. Because of differing bedtimes, the
Court believes that awarding Father one ovemi``t per week during the school year would disrupt
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the children's sleeping schedule and bedtime routme,
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In addition, the Court found concerning that fact that "[ujnbeknownst to Mother until this
past April, Father was getting a second copy of the homework and making the children do the
homework twice ... While homework in kindergarten may be minor, the Court is concerned that
as the girls move forward in their academics years he will continue the same pattern." [August
t 3, 2015 Decision and Order, pg. 11]. Again in rhe interest of stability and routine in the
children's school week routine, the Court believes that it is in the best interest of the children for
Father to have custody every Wednesday from 4_:30 p.m-,.t~ 6:3~.1\m. rather than one overnight
per week.
4. (b) The Trial Court erred and/or abused its discretion in reviewing evidence, during the trial,
which was not admit1ed into the record.
The Court considered only the evidence admitted into the record in making its custody
determination,
4. (c) The Trial Court repeatedly'misstated the amount oftravel'time for the children in
traveling between the parties' homes, school, and daycare, and classified Father's move from
Douglasville to Royersford as a "relocation" without addressing the statutory definition of
relocation nor the statutory factors which must be considered in a relocation case.
In the Decision and Order, the Court statJ~ the travel time between Father's house and
Mother's house was between thirty five' Jnd fo~irftn'inutes. A quick Google Maps search shows
that the estimated time between the residences is between thirty one and thirty seven minutes
without taking into account traffic. In the Decision and Order, the Court stated that the travel
time between Father's house and the children's daycare, located at 548 Old Swede Rd.,
Douglasville was thirty to forty minutes. A Google Maps search shows that the estimated travel
time, depending on traffic, is 23 minutes. In any event, despite this discrepancy, the Court finds
that the commute from Father's house to the daycare is significant and that factor eleven weighs
in favor of Mother.
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Further, the Court simply used the term "relocation" to describe Father's move to his
Royersford home. Relocation, as defined in 23 Pa.C.S.A.§ 5337 was not at issue at trial. Thus,
·::- the Court did not address the relocation statute or the factors therein.
4. (d) Despite the Court's finding that few~r custody exchanges would be appropriate to
minimize the freguency of interaction between Mother and Father, the Court's Custody
Order significantl:l'. increases the number of parent-to-parent custody exchanges (as compared
to the prior custodial aiTangement).
The Court believes that the parties' custody schedule as ordered in the Decision and Order is
in the best interest of the minor children A.F. and R.F. Exchanges between Mother and Father
are necessary and the fact that the Decision and Order increased the number of exchanges is only
incidental to the custody arrangement's purpose-it is best for the children.
5. The Trial Court erred and/or abused its discretion in failing to address the fact that the
Children will now be deprived of Father's care for extended periods during the school week
and failed to discu_ss the possible effect on the Children of the proposed transfer of custody.
'
23 Pa.C.S.A. § 5328 requires that the court issue an order and supporting opinions
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specifically addressing the sixteen factors contained therein. A trial court is required to address
all sixteen factors of§ 5328, and the failure to do so amounts to an error of law. J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011). However, none of the sixteen factors require a trial
court to "address the fact that the Children will now be deprived of Father's care for extended
periods during the school week." The Court entered its Decision and Order in consideration of
the sixteen factors and what is in the best interest of the minor children.
WHEREFORE the Court would respectfully request that the Superior Court AFFIRM the
August 13, 2015 Decision and Order and DENY appellant's appeal.
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BY THE COURT:
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: NO. 10· 15544
r,I v.
: CIVJL ACTION -LAW
: CHILD CUSTODY
J9F I •. : ASSIGNED TO: M. THERESA JOHNSON, J.
DEFENDANT
Randy A. Rabenold, Esquire-attorney for Plaintiff, Julie Feldmann
Tina M. Boyd, Esquire, attorney for Defendant. John Feldmann
DECISION AND ORDER, M. THERESA JOHNSON, JUDGE August 13, 2015
The matter before this Court is the Petition of Defendant, J• Fd g (hereinafter
"Father"), for a Modification .of a Custody Order entered by agreement of the parties on
September 8, 2011. Trial was held on July 27, 28 and 30, 2015. The Court enters the following
Findings of Fact:
I. FINDINGS OF FACT
l. Plaintiff, J• FMIP, (hereinafter "Mother"), ls an adult iadividual currently residing ate
Yellowhouse Drive, Douglassville, Berks County Pennsylvania 19518.
2. Defendant, - F•W ("Father"), is an adult individual currently residing at. Crosshill
Road, Royersford, Montgomery County. Pennsylvania 19468.
3, The parties are the natural parents oftwo minor twin daughters, RF. and A.F., born April 21,
2009, (hereinafter "Minor Children").
4. The parties were formerly husband and wife, having been married on July 5, 1997 in Berks
County, Pennsylvania. The parties separated in the summer of 2010 and a Divorce Decree was
signed on February 17, 2012.
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S~ttheitime·of:separation, Mother has been the primary custodian of the Minor children.
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c: p. 6. Following separation, Mother and the Minor Children moved to Maternal Grandparents home at
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5 Yellowhouse Drive Douglassville, Pennsylvania, which was only several blocks from the
marital home.
7. Matemal~dpotents have now relocated to Hazelton and Mother rents the home from her
parents.
8. Father remained in the marital home following separation and saw the minor children on a
regular basis until he moved in with his then girlfriend now wife A4 F'.4' U I in Montgomery
County.
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·9. The distance between the parties home is approximately 35-40 minutes.
10. A-, FJ81 has three children: L.M. (age 15), A.M. (age 13) and T.M. (age 9). She recently
obtained a 50/50 custody agreement with her ex-husband.
11. Both parties are college graduates, both are teachers and both hold Master's Degrees and
additional credits.
12. Mother is employed at Owen J. Roberts School District where she teaches Fourth Grade.
13. Mother has been employed by the Owen J. School District for approximately twenty (20) years
and her work ~p)ledule is Monday through Friday during the school year from apW,Vximately
7:50 a.m. to 3: 15 p.m, She has most of the same holidays during the school year as the minor
children and does not work during the summer.
14. Father has been employed as a special education teacher for the Spring~Ford Area School
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District for approximately eleven (11) years and bis work schedule is similar to mothers,
although his work day begins at 7;15 a.m.
15. Father's wife,~ r••, is also employed by the Spring-Ford Area School District
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16. Mother resides within the Daniel Boone School District.
17. Father resides within the Spring-Ford Area School District.
18. The Minor Children are entering first grade and attending the Daniel Boone School District.
19. The minor children attend St. Paul's Daycare both prior to and after school. St. Paul's is minutes
from mother's home and provides transportation to and from Daniel Boone School District.
20. Mother grew up in the Daniel Boone School District and after both parties attended college at
Slippery Rock University, Father agreed to move to the Daniel Boone School District where they
built their marital home.
21. The Daniel Boone School District is a good school district providing quality education.
22. Neither party, including Father's wife, has a criminal record.
23. On December 8, 2010, following separation, Mother filed a Custody Complaint seeking primary
custody of the minor children.
24. On March 2, 201 J, this Court entered a Custody Evaluation Order, whereby Dr. Peter Thomas
was directed to perform a custody evaluation of the Parties. Dr. Thomas completed the report,
which is part of the record, dated March 16, 201 I. This evaluation recommended Mother have
primary physical custody.
25. On September 8, 2011, the parties, by agreement, entered into a Custody Order which the parties
currently follow, whereby the parties share legal custody and Mother has primary physical
custody. The order Custody Order provides, inter alia, that the parties share custody of the
children during the school year on a four week rotating schedule pursuant to the agreement as
follows:
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During ilie school year:
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I ~.eo, W~k one: Mother has custody of the children from Sunday at 6:30 p.m, until Wednesday
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•) morning when she will deliver the children to daycare. Father has custody from Wednesday,
when he picks the children up from day care until Friday morning when he delivers the children
to daycare. Week two; Father has the children from Wednesday after daycare until Sunday nt
6:30 p.m, Mother has the twins from Sunday at 6:30 p.m. until the following Wednesday
morning when she delivers the children to daycare. Week tru«~ Father has the children after
daycare until Friday morning when he delivers the children to daycare. Mother has the children
from Friday after daycare until the following Thursday morning, when he delivers the children to
daycare. Week four: Father has the children from Thursday after daycare until Sunday at 6:30
p.m.
DurinJ?: the Summer:
Toe parties share custody of the children during the summer, which spans from June 10 until
August 25 on a two week rotating schedule pursuant to the agreement as follows: Week one:
Father has the children Sunday at 6:30 p.m. until Wednesday at 6:30 p.m. and again on Friday at
6:30 p.m. until Sunday at 6:30 p.m. Mother has the children from Wednesday at 6:30 p.m, until
Friday at 6:30 p.m. Week two: Mother has the children from SUJ:J.day at 6:30 p.m, until
Wednesday at 6:30 p.rn. and again on Friday at 6:30 p.m, until Sunday at 6:30 p.m. Father has
the children form Wednesday at 6:30 p.m, until Friday at 6:30 p.m. 1n addition, the Custody
Order directed that the custodial parent shall make reasonable efforts to facilitate phone contact
between the non-custodial parent and the children between 7:40 p.m, and 8:00 p.m, each
evening.
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:. ~ 26. The Current Custody Order was entered prior to the children being Schoo] age and prior Mr.
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1 :<.i Feldman relocating to Montgomery County,
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J· 27. On August 1, 2013, weeks after his marriage, Father filed a Petition to Modify Custody,
seeking equal time with the Children.
28. On September 17, 2013) Mother filed an Answer to Father's Petition to Modify Custody,
requesting an increase in her time and a reduction in Father's custodial time with the Children,
29. On September 27, 20131 the Parties were ordered to participate in an Updated Custody
Evaluation with Dr. Thomas in consideration of Father's remarriage and the addition of Father's
step-children into the children's lives. Father objected to his Order and petitioned the Court for
the removal of Dr. Thomas, a motion that was denied. Dr. Thomas completed the report, which
is part of the record and is dated February 12, 2014. Dr. Thomas recommends Mother continue
to have primary physical custody.
30. In 2014, Father filed for Special Relief:_ seeking to have the minor children attend kindergarten in
the Spring-Ford School District despite the fact that Mother had primary custody and the parties
had agreed to raise their children in the Daniel Boone Schoo] District where mother was raised
and is living. This Relief was denied by this Court.
31. On January 6, 2015, this Court appointed Claire Monfaro, M.A.-L.P.C. of Berkshire Psychiatric
to perform counseling for the minor children.
32. Ms. Monfsro has recommended that counseling of the minor children continue.
3 3. Ms. Monfaro testified to lack of communication and co-parenting.
34. On March 2, 2015, per Father's request, this Court appointed Lauren Marks, Esq. Guardian ad
Litem ("GAL"), with Father paying l 00% of the costs.
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35. The GAL testified that Father is rigid and refuses to accept opinions which do not match his
own.
36. The GAL found the minor children have been influenced by Father in their statements regarding
equal time with Mother.
37. The GAL did an extensive report and investigation into this case and recommends Mother have
primary physical custody.
38. Mother resides in a nice home in an area where she grew up and has numerous neighbors and
friends. The minor children have their own room at mother's house.
39. Father and his wife reside in a nice home in Montgomery County in a nice neighborhood. His
wife's three minor children are at the home 50 percent of the time. The minor children share a
bedroom with each other at Father's home.
40. Since birth, the minor children have attending Reading Pediatrics in Wyomissing, Berks County.
41. Father unilaterally attempted to have a second Pediatrician for the minor children in
Montgomery County) Allstar Pediatrics.
42. Allstar Pediatrics informed Father they could only be used in case of emergencies.
43. Father has obsessed with Mother's whereabouts and what is going on in her home by following
Mother's friends on social media sites, enlisting the help of a neighbor to sneak into Mother's
home to take pictures and by speaking to the minor children.
44. Father has obsessed over minor child's R.F.'s diagnosis of Fructose Intolerance by seeking the
opinion of Reacting Pediatrics, doctors at Children's Hospital of Philadelphia, doctors at Dupont
Medical and n dietician. AJI agreed that the minor child fructose diet need to me monitored with
a good diet.
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45. Father has allowed his wife Aill F- to overstep her bounds as a step-parent by allowing
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her to attend a Doctor's visit at DuPont without the knowledgeof Mother and without the
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knowledge of the Doctors who have. F: MPlisted as mother in their reports.
46. Minor child RF. rarely complains of stomach issue when in the care of Mother but does
complain when in the care of Father.
4 7. Father is oblivious to his controlling nature as is evident of the.overabundance of documents,
many of which were not in his favor, he submitted to the GAL and various experts in this case.
48. If mother is in need of babysitting for the minor children she uses her parents.
49. The minor children have a loving, bonded relationship with their maternal grandparents.
50. Father does not have a close relationship with his family as is evident by his sister having to
contact Mother after the divorce so that she could see and spend time with the minor children.
51. Mother actively participates with the minor children ht a variety of school and community
functions.
52. Father actively participates with the minor children more at home than the community.
53. Owing the parties marriage they attended UCC church> however Father decided to have the
children baptized catholic.
54. Father has obsessed over a relationship Mother has had off and on again with M• K 87f,
from South Carolina. Father insists Mother is going to relocate.
55. Mother has no intentions of relocating. Mother plans on maximizing her Pennsylvania teacher
pension for retirement purposes.
56. Father and Mother are not able to effectively co-parent,
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f,J II. CONCLUSION§.OF LAW
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'" Cl'I I. Actions in Child Custody are decided under tile Pennsylvania Child Custody Act, 23
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Pa.C.S.A. 5321 et.seq and the decisional law that flows therefrom.
2. The Court has jurisdiction of the parties. the minor children and the custody issues in thls
case. See 23 Pa.C.S.A. 5321.
3. The paramount concern in a custody proceeding is the best "interest of the minor children.
CosteUp v. Coste1lo, 666 A.2d 1096 (Pa. Super. I 995),
4. In a custody dispute, the trial court is to determine what is in the best interest of the minor
children, considering the "facts and circumstances having impact on the children's physical,
intellectual, moral and splrltual well-being." Johnson_y, Lewis. 870 A.2d 368, 371 (Pa.
Super. 2005).
5. In ordering any form of custody, the court shall determine the best interest of the child under
of the sixteen factors enumerated in 23 Pa.C.S.A §5328. In doing so, the Court is to give
weight to those factors that which affects the children's safety. 23 Pa. Cons, Stat. Ann.§
5328{WesQ.
Ill. DISC!)SSION
Father is seeking to modify the Custody Order to obtain primary custody of the minor
children. Mother is likewise seeking to increase her physical custody time with the children. In
making disposition, the Court considered the testimony of the parties. Father's wife, Aw,
grandfather,11- S.... , the children's maternal grandmother, counselor, Frank Scavo. -
F •1 S father,``. M.S., L.P.C., GuardianAd Lltem, Lauren Marks, Esq.(" the
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Exhibits of the parties.
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(1) Whichparty is more like.ly to encourage and permitfrequent and continuing contact
between the child and anotherparty.
Mother is more likely to encourage and permit frequent and continuing contact between the
minor children and Father.
Father has played word games with the wording of the telephone contact provisions of the
Custody Order. Mother avers that Father routinely does not comply with the phone call
provision of the Custody Order. Father's own testimony indicated that he routinely fails to
foJJowthe phone call provision of the Custody when the Children are in his care by putting the
Children to bed at 7:00 p.m. Father testified that the children cannot talk to their Mother prior lo
this time because it is family time. Mother's testified Father does not allow the children to speak
with Mother when they are in his custody because it is his time, and that Father does not feel that
it is appropriate for him to call the Children when they are with Mother. Father does not dispute
this testimony. The GAL's testimony echoed the allegations of Mother.
Another point of contention between the parties involves Mother's family reunion. Mother
testified that her family reunion in North Carolina is always the third Saturday of August. She
further testified that she and Father always attended this reunion when they were married. This
year Father notified Mother that he is taking the girls on vacation over August 15, so the
Children will not be able to attend the annual reunion.
(2) Thepresent and past abuse committedby 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 adequatephysical safeguards and supervision of the child.
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Mother testified that during the marriage father was emotionally abusive and controlling. In
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I N addition she testified fhat prior to her marriage father slapped her in the face while out to dinner
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,,· '·" with her parents. Father denied striking mother and minimized the incident. ~ Sllllllt,
maternal grandfather testified, he witnessed the incident whereby Father slapped Mother across
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the face. This incident was additionally corroborated by the testimony of HpS,Qi 1,
maternal grandmother. Mr- Steppler also testified that he witnessed, on more than one occasion,
Father "flicking' the girls on the forehead as a form of discipline. This occurred prior to the
parties separating. Mother corroborated this incident. The Court notes that neither the parties
nor the Children reported abuse to Dr. Thomas, Ms. Monfaro, nor the GAL. The Court found the
testimony of maternal grandfather and maternal grandmother credible. Father's denial or
minimizatlon of this incident is damaging to Father's credibility.
The Court also has a concern about what appears to be Father's obsessiveness with the minor
child, R.F. • s diagnosis of fructose malabsorption, This concern is discussed in greater detail
below. While this factor weighs decisively in favor of Mother} the Court does not believe that the
Children are at risk of abuse by either Mother or Father.
(3) The parental duties performed by each party on he half of the child.
Dr. Thomas, in his testimony as well as in his April 41 2011 Custody Evaluation, provided to
the Court that Mother and Father cohabitated with the Children for 16 months after they were
bom, During that time, Mother was the primary caregiver of the Children. Father took off of
work two to three weeks after the birth of the minor children while Mother took off eight weeks.
Mother estimates that she performed 70 percent of the childcare work, including getting up in the
middle of the night and feeding and dressing the children in the morning. Father related to Dr.
Thomas as welJ as testified before this Court the parental duties were split 50/50, and that Father
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evenly. However> mother testified that Father was heavily Involved in gambling at that time and
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spent the majority of his time on the phone. His heavy gambling resulted in the parties incurring
significant debt. Maternal Grandfather confirmed Father's gambling addiction and testified that
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during the course of the parties' marriage he provided a. great deal of financial support because of
the debt.
Both parties have signed the minor children up for extra-curricular activities. The problem is
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Father has signed the minor children up for activities in Montgomery County without discussing
this with Mother and without giving any concern to the unnecessary commuting for the minor
children. The activities Father has signed the children up for are just as available in Berks
County as they me in Montgomery County. The Court finds this is another example of Father's
inability to act in the best interest of his children. These activities required mother to pick the
children up from daycare and rush to Montgomery County so the girls could participate. This
left Mother with little choice after work other than eating dinner quickly, Father then attempted
to use this against Mother in an attempt to show she refused to follow the recommended diet for
minor child R..F.
Mother has been responsible for the minor children's homework as she has had primary
custody. Unbeknownst to Mother until this past April, Father was getting a second copy of the
homework and making the minor children do the homework twice. Father should know, as an
educator, the importance of communicating to Mother what is occurring with the children's
school work. While homework in kindergarten may be minor, the Court is concerned that as the
girls move forward in their academic years he will continue the same pattern, This is another
example of Father's need to control every situation.
11
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majority of Father's time with the children is spent at home when they arc not at their extra-
curricular activities.
This factor favors Mother.
(4) The need/ors/(lbi/ity and continuity in the child's education famtty life and
community life.
As indicated above both Motlier and Father have signed the minor children up for a number
of extracurricular activities including soccer, swimming, dance, music lessons, ballet, track and
horseback riding and cheerleading. However, Father has signed the minor children up for
basketball and swimming in Royersford, Montgomery County. In the interest of promoting
stability and continuity in the children's lives, the Court feels believes that all of their activities,
especially the team sports, should be close to Mother's home, their primary residence. As the
girls grow older, having the activities in the same area as their school will foster the
strengthening of'relatlonships with her teammates. Once the girls begin to participate in school
team sports and activities, they will be doing so in the Daniel Boone School District so it makes
sense that these activities should take place in that area now. Moreover, it is unreasonable and
inconvenient for the kids to continue to commute a half hour's distance between their school and
their extracurricular activities.
The minor children have Jived theirentire lives in the Daniel Boone School District. They
have been attending a daycare that provides transportation to and from their school and is
minutes from Mother's residence.
12
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When the parties separated mother moved only several blocks from father so this allowed
Father to have regular coo tact with the minor children. Father, without informing Mother
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Mother has raised the children in the same UCC church she was raised in and the same
church she attended while married. Curiously, Father insisted that the Children be baptized
Catholic, the same religion as his current wife.
Mother has worked at the. same job for the past twenty (20) years and testified that she will
continue to work at this employment until she reaches maximum PSEA retirement benefits.
Father expressed a baseless concern that Mother was going to relocate to South Carolina because
she is in a relationship with an individual named M.r¥a& g. Mother testified that this is an
on again off again relationship and she has not introduced the girls to Mr. K!ez • Father is so
obsessed with this notion that be stalks the Facebook pages of Mother's friends to find any
information he can find about 1',WKz 5 • He even enlisted the aid of Mother' s best friend's
husband who went through his wife's phone to find a phone number of M•l'i:• •
Father, on the other hand> had some conflict as a coach at his last employment and was
removed from that coaching position. While there was no testimony as to why be no longer bad
his teaching employment, the court notes he has only been with his current employer for eleven
(11) years. This factor favors mother. ,
(5) The availability of extended family.
The GAL testified, and it is undisputed that the Children love step-mother and step-
siblings and the love is reciprocal. However, this Court finds that step-mother has overstepped
her rote on more than one occasion. ln addition to step-mother and step-siblings, Father's has
two sisters live in Indianapolis, Indiana and his brother lives in Long Island, New York. The
13
paternal. grandmother lives in Delaware. Father's parents live near Scranton, PA and they visit
the twins once every 3 weeks .. However. this Court finds that father does not maintain a close
relationship with his family. Mother testified that Fathers sister contacted her after the divorce
and informed Mother that she had not seen the minor children and could she stop by Mother's
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home. Mother welcomed her former sister-in-law to her home. The visit went well and sister-in-
law extending her visit to an overnight visit. When father learned of this visit he had his current
wife confront Mother to tell Mother she WBS out ofJine. This Court commends Mother for
fostering a relationship between the minor children and their Aunt.
As for Mother's side of the famiJy, the minor children enjoy a close relationship with
maternal grandparents. The maternal grandparents live j.n close proximity from Mother's
residence and visit with the Children on a regular basis. They have been heavily involved
• in the
children's lives, especially prior to the parties' separation. Father testified that the maternal
grandparents were so involved in raising the . girls that at times, they were overbearing. Maternal
Grandmother testified that following the birth oftbe minor children Father informed them they
had to make an appointment to come over to the house. Inaddition Maternal Grandmother
testified that she had family that had traveled from out of town to bring a present and see the
minor children and Father would not allow them in the home. The Court found the maternal
grandparents' testimony to be credible regarding the existence of a strong bond between them
and the girls and the Father's control over blocking visitation of family.
Father bas continued to stop the minor chi1dren with visits with extended family by his
scheduling of vacation over the time period which he knows is always Mother's family reunion
that she attends each year. This is yet another example of Father's passive aggressive behavior.
14
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The parties live approximately 30 to 40 minutes apart from one another and the Children
will have the opportunity to continue their relationships with the extended family of both Mother
and Father. The Court's custody decision wiJl not preclude the children from continuing to have
a relationship with the parties' extended family. This factor weighs in favor of Mother.
(6) The child's sibling relationships
As stated above, by all accounts the minor children have a loving, quality relationship
with the three step-siblings. Toe OAL, in her home observation of Father's house, observed that
the twins and the step-children interacted and played together. T.M., one of the step-children,
wrote a letter to the GAL in which he expressed that he wishes the minor children would be able
to stay with Father more often. The Court found this letter, even if it was well intentioned, to be
inappropriate given the ongoing custody proceedings. The Court found this letter to be evidence
of the ongoing discussions of the custody dispute in Father's household. The GAL concluded,
and the Court cannot disagree, that "[i]t is clear that the children all have au excellent
relationship." However, it is evident to the Court that in the coming years, the children's
interaction with the step-siblings may be minimal. The girls and their step-siblings are already
busy with various extracurricular activities and will only become busier as they grow older. In
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necessarily coincide with Father's custodial time. Furthermore, Father testified that al! of the
children have a staggered bedtime. The minor children's bedtime in his household is 7;00 p.m.
The children are unavailable to talk with Mother prior to bedtime because he is doing his family
time. This family time cannot be inclusive of the children in the household as they are teenagers
participating in middle and high school sports. Therefore, they would only be walking in the
door for dinner as the minor children or going to bed. If the step-children have games scheduled
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on a school night they would not see the minor children at all. The Court further recognizes that
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Therefore the Court gives minimal weight to this factor as far as custody during the school week.
(7) The well-reasonedpreference of the child, based on the child's maturity and Judgment.
The Court did not take testimony from the minor children since they rue only six (6) years
old. The Court had previously appointed a guardian at Iirern for the minor children who did a
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thorough investigation. testified and filed an extensive report. The Court agrees with the GAL,
the Children are not old or mature enough to make a welt-reasoned decision or judgment as the
where they want to reside. By all accounts, including Dr. Thomas' report, and the testimony of
Ms. Monfaro, the Children are bonded and Jove Mother and Father.
(8) The attempts ofa 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.
Mother believes that Father is talking to the minor children regularly about the custody
arrangement. Father, likewise believes mother Is talking to the minor children. The Court finds
that both parties may be speaking to the children, however this Court finds that Father in addition
to directly speaking to the minor children is also using his step-children to manipulate them and
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discuss the custody arrangement. Father testified that his wife and her ex-husband have recently
agreed to a 50150 custody arrangement. Father testified that the minor children ask why they
have to leave the home when the step-children get to stay and they also want 50/50. This Court
finds that the minor children are too young to understand what a 50/50 custody agreement is and
the more appropriate conversation would be that all the children switch between parent's homes.
This Court also docs not find credible Father's testimony that the minor children come to rum
and provide him with detailed information about what happens at Mother's home. This Court
16
finds that Father is constantly questioning the minor children as to what is occurring in Mother's
home. An example is Father's exaggerated testimony that Mother has left the children at home
alone. The Court finds Mother's testimony credible that she was merely outside talking in the
neighbor's next door driveway which was within earshot and eyeshot of her home.
This Court finds that Father is obsessed with what Mother is doing on a regular basis even
when she does not have the children. Father constantly watches Mother's best friends Facebook
page to see ifhe can find out information on Mother. In addition Father has enlisted Mother's
best friend's husband to go into Mother's home while she is not there to take pictures, to inform
him of where Mother ls going even when Mother does not have custody of the children. When
Father found out that Mother and her best friend went to dinner on a regular basis when she did
not have the minor children, Father went so far as to state that he was considering trying to get
the receipts from the restaurant to see what Mother had to drink. Father's behavior is borderline
stalking. This Court fears that Father will continue to quesrionthe minor children and would not
be surprised if he begins to include the minor children in spying on Mother. Dr. Thomas opined
that Father presents as intense with obsessive qualities, controlling in his behaviors and his
personality structure is not particularly strong for nurturing events.
In addition, The GAL provided in her report that the twins are caught in the middle of the
feuding parents. They play up to each parent. For example, R.F. complains to Mother about
attending a dietician and then cries to Father that her stomach hurts.
As discussed in more detail below, RF. has gastrointestinal issues and has been diagnosed
with fructose malabsorption, RF.'s condition requires the par.lies to monitor her diet to ensure
she limits the amount of fructose she consumes. As relevant under this factor, when RF. is with
Fo1her after being with Mother, Father questions her to the degree that he is "drilling" her about
17
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(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.
Both parties are loving, stable, and maintain consistency in their lifestyles and with their
interaction with the children. Dr. Thomas, in his reports, opines that Mother presents with
personality structure that is positive for nurturing events and moments, and that her overall skills
for nurturing functions were good. Mother seems to be consistent with her punishment of the
Children and does so by making the children sit in "timeout," apologizing and then tell her how
they could have made a better behavioral choice. Dr. Thomas concluded that Mother displays a
better capacity for nurturing than Father. The girls indicated f~eling somewhat closer and more
comfortable to Mother than Father.
As Dr. TI10mas explained in his 2014 report, Father, is a better taskmaster and problem
solver than he is a nurturer. Dr. Thomas opined that Father's personality structure is not
particularly strong for nurturing events. Father's responses to Dr. Thomas' hypothetical
questions were more focused on problem solving rather than nurturing. Father will typically take
away a snack from the Children as a punishment, Father has some difficulty with managing
conflict with other people. This manifested, for example, when Father had a conflict with the
children's daycare employees. The Court agrees with Dr. Thomas and this factor weighs in
favor Mother.
( I 0) Which party is more likely lo al/end to the daily physical, emotional, developmental,
educational and special needs of the child.
18
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Another point of contention between the parties concerns RF.'s gastrointestinal issues, RS.
has been diagnosed with fructose malabsorptlon which requires limiting the amount of fructose
that RF. consumes. While Father appears to obsess over this disorder perhaps to a fault, the
Court believes that he does so with the best interest of her health in mind. Father closely
regulates and monitor's R.F.'s diet, and strictly and rigidly follows the diet plan prescribed by
tho doctors and nutritionist. Mother feels that R.F. is playing up her stomach problems when she
is with Father and that R.F. does not voice similar complaints when with Mother. Father
believes that strict compliance with a fructose free diet is critical to R.F. 's physical development
and well-being and that Mother's Jack of strict coherence is harmful to R.F. father has obsessed
over this diagnosis to the point he has a chart prepared for daycare so that they can document her
bowels movements. When he did not like the diagnosis from one expert, the doctors at CHOP he
took her to DUPONT without notify mother. What is also concerning is that the doctors notes
from DUPONT reflect mother was present, when in fact it was step-mother who was present.
Following the diagnosis with DUPONT Father continued by scheduling an appointment with a
dietician, Mother indicates that she has gone along with Fath~r's request to see a dietician and
the dietician's recommendations, even though she believes this to be unnecessary in light of the
recommendations from the pediatrician and the doctors at CHOP and DUPONT.
This Court agrees with the concerns expressed by the GAL and Mother that the minor child
R.F. is aware of the differences of opinions between the parties and therefore complains about
her stomach in the presence of Father but not in front of Mother.
Father has concerns with the quality of education at the Daniel Boone School District, the
school district where the custodial mother resides. Father testified that he believes better options
would be available in the school district of his home. Father never expressed these concerns
19
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school personnel at every school. In addition, Father admitted during testimony that the success
of a child in large part depends on their home environment.
Both parentsspend time reading with the children. As stated above, Mother appears to be the
parent who socializes the minor children on a regular basis with activities and friends outside of
the home, whereas Father and his wife tend to spend time with the minor children at home.
(11) The proximity of the residences of/he parties.
Mother lives in Berks County and Father lives in Montgomery County. The parties'
residences are approximately 30-40 minutes apart. Th.is is significant to the Court because the
current custody schedule was entered when the children were not school age. In addition the
current order requires the parties to exchange the children2 or 3 times per week. Given the
distance between the residences, this is too much back and forth and too much time spent in the
car for the minor children during the school week. · This 30-40 minute commute on a school
morning will require the children to rise earlier than necessary to get to daycare. This factor
weighs in favor of Mother as Father voluntarily chose to relocate.
(12) Each party's availability Jo care/or the child or ability to make appropriate child-
care arrangements
As stated above, both of the parties are full-time teachers with very similar work schedules.
Each works from approximately 7:30 a.m, to 3 :30 p.m. Monday through Friday and each has the
summers off. The minor children have been attending St. Paul's Daycare which provides.
transportation to and from school. When Mother is need of any assistance with the minor
20
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