J.S.F. v. K.G.S. ( 2016 )

J-A22021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.S.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.G.F., N/K/A K.G.S. :
:
Appellant : No. 431 MDA 2016
Appeal from the Order Entered March 3, 2016
In the Court of Common Pleas of Lancaster County
Civil Division at No(s): CI-09-09368
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 18, 2016
K.G.F. n/k/a K.G.S. (“Mother”) appeals from the March 3, 2016 order
in the Court of Common Pleas of Lancaster County that modified the existing
custody order with respect to her son, P.F., born in May 2009 (“Child”). We
affirm.1
This appeal arises from a petition for modification and contempt in
custody filed by Mother against J.S.F. (“Father”) on April 15, 2015, wherein
she requested primary physical custody and that Child be enrolled in the
Cocalico School District for the 2015/2016 school year, among other things.
Father filed an answer and new matter, wherein he requested primary
____________________________________________
1
The Honorable Jeffrey J. Reich issued the subject order. The record reveals
that he has presided over the underlying custody matter since it commenced
in 2009.
J-A22021-16
physical custody and for Child to continue attending elementary school in the
School District of Lancaster.
A hearing occurred on January 8, 2016, January 14, 2016, and
February 17, 2016. Mother testified on her own behalf, and she presented
the testimony of A.M.W., her boyfriend; R.E.H., Jr., Child’s maternal great
uncle; P.B.S., Child’s maternal grandfather; and Kate Egerter, a caseworker
from Lancaster County Children and Youth Services. In addition, Mother
presented the testimony of A.R.E., her then twelve-year-old son, who is
Child’s half-brother. Father testified on his own behalf, and he presented the
testimony via telephone of M.D., his colleague, and A.C., his neighbor whose
son is a friend of Child.
In its opinion pursuant to Pennsylvania Rule of Appellate Procedure
1925(a), the trial court set forth factual findings, which the testimonial
evidence supports. As such, we adopt them herein. See Trial Court Opinion,
4/15/16, at 3-12.
Importantly, the trial court found that the parties lived a driving
distance of 35 to 45 minutes apart and had been operating “under a court
order with a shared physical custody arrangement . . . whereby the Child
was exchanged several times each week on a rotating bi-weekly schedule.”
Trial Court Opinion, 4/15/16, at 3, ¶ 5; see also Trial Court Opinion,
3/3/16, at 9. Further, Mother and Father are employed as educators in the
School District of Lancaster. See id. at 3, ¶¶ 2-3. At the time of the subject
-2-
J-A22021-16
proceedings, Child was attending first grade in the School District of
Lancaster. See id. at 5, ¶¶ 19-20. Specifically, Child was attending the
Buchanan Elementary School, which was a driving distance of five minutes
from Father’s home and thirty minutes from Mother’s home. See id. at 7, ¶¶
28-29.
By order entered on March 7, 2016, the trial court granted Father
primary physical custody during the school year, and Mother partial physical
custody on alternating weekends, from Friday at 5:00 p.m. until Sunday at
5:00 p.m., and every Wednesday from after school until the beginning of
school on Thursday. The court directed that Child continue to attend the
Buchanan Elementary School. The court granted the parties shared physical
custody on an alternating weekly basis during the summer. Further, the
court granted the parties shared legal custody.
Mother timely filed a notice of appeal and a concise statement
pursuant to Rule 1925(a)(2)(i) and (b). On April 15, 2016, the trial court
filed its opinion pursuant to Rule 1925(a).
On appeal, Mother presents the following issues for our review:
I. Did the [t]rial [c]ourt err as a matter of law by its failure to
adhere to Pa.R.C.P. 1915.4(c) in that the trial shall be
commenced within 90 days of the date the scheduling order is
entered?
II. Did the [t]rial [c]ourt err and/or abuse its discretion in
denying Mother’s Emergency Petition to Bypass the custody
modification conference, when it knew that there was limited
availability to hold a hearing on the school district issue prior to
the beginning of the 2015-2016 school year?
-3-
J-A22021-16
III. Did the [t]rial [c]ourt err and/or abuse its discretion in
deciding the school district issue in a manner not consistent with
its prior order?
IV. Did the [t]rial [c]ourt err and/or abuse its discretion in
denying Mother’s Emergency Petition to allow the telephone
testimony of the mother of Father’s youngest child, which would
have questioned the credibility of Father’s testimony, and which
would have substantiated claims made by Mother?
V. Did the [t]rial [c]ourt err and/or abuse its discretion in
refusing to follow its prior order allowing for the [i]n camera
examination of Father’s employment record, when said order
was entered as a result of suspension allegations which Father
denied?
VI. Did the [t]rial [c]ourt err and/or abuse its discretion in
misapplying the facts to the statutory factors under 23 Pa.C.S.
[§] 5328, resulting in numerous conclusions that are
unreasonable under the circumstances as shown by the record?
VII. Did the [t]rial [c]ourt err and/or abuse its discretion in that
it unreasonably did not give any consideration to Father’s history
of not testifying truthfully at a prior proceeding?
VIII. Did the [t]rial [c]ourt err and/or abuse its discretion in that
it unreasonably did not give any consideration to the fact that
Father was suspended from his employment yet again?
IX. Did the [t]rial [c]ourt err and/or abuse its discretion in that it
unreasonably found it would be detrimental to the [C]hild if time
with Father was minimized but was silent on the detrimental
implications of minimizing the [C]hild’s time with Mother?
X. Did the [t]rial [c]ourt err and/or abuse its discretion in that it
unreasonably found that [F]ather is more capable than Mother of
encouraging and permitting frequent and continuing contact
between the Child and the other parent, which is not supported
by the record?
XI. Did the [t]rial [c]ourt err and/or abuse its discretion by
stating that the parents had shared physical custody of the child
since birth, which is not supported by the record?
-4-
J-A22021-16
XII. Did the [t]rial [c]ourt err and/or abuse its discretion in that
it unreasonably found Mother intent upon restricting Father’s role
in the Child’s life, is not supported by the record?
XIII. Did the [t]rial [c]ourt err and/or abuse its discretion in
finding that Mother does not engage in afterschool activities,
which is not supported by the record?
XIV. Did the [t]rial [c]ourt err and/or abuse its discretion in
stating that Mother has had at least one paramour live in her
residence, which is not supported by the record?
XV. Did the [t]rial [c]ourt err and/or abuse its discretion in
magnifying Mother’s relationships since the birth of the [C]hild,
highlighting that Mother has two children with two different
fathers and is suggesting that primary custody of the Child would
interfere with Mother’s social and romantic life, while minimizing
Father’s relationships including the birth of an additional child
born after the separation of the parties?
XVI. Did the [t]rial [c]ourt err and/or abuse its discretion in that
it unreasonably found that Mother chooses to forgo travel time
with the Child, which is not supported by the record?
XVII. Did the [t]rial [c]ourt err and/or abuse its discretion in that
it unreasonably found that certain patterns of Mother’s behavior
impedes the Child’s relationship with Father and that Mother
creates situations that frustrate Father, thereby justifying
Father’s volatile behavior, which is not supported by the record?
XVIII. Did the [t]rial [c]ourt err and/or abuse its discretion in
that it unreasonably minimized Father’s behavior toward Mother
when it characterized it as inappropriate, and suggested that
Mother deliberately provokes Father, which is not supported by
the record?
XIX. Did the [t]rial [c]ourt err and/or abuse its discretion in
unreasonably interpreting testimony to suggest that Father
attempts to work with Mother with regard to the Child, which is
not supported by the record?
XX. Did the [t]rial [c]ourt err and/or abuse its discretion in
unreasonably interpreting the testimony to suggest that Mother
-5-
J-A22021-16
wants primary physical custody of the Child because it would be
more convenient for her, which is not supported by the record?
XXI. Did the [t]rial [c]ourt err and/or abuse its discretion when it
ordered that Mother’s custodial time would begin at 5:00 p.m.,
when it knew that would require Mother to wait somewhere for
over an hour after work before being allowed to pick up the
Child?
XXII. Did the [t]rial [c]ourt err and/or abuse its discretion in that
it unreasonably suggests that Mother desires that Father only
see the Child once a month on a random schedule, which is not
supported by the record?
XXIII. Did the [t]rial [c]ourt err and/or abuse its discretion in
that it unreasonably inferred that Mother kept her older child
from his biological father, which is not supported by the record
or biological father’s testimony at the prior hearing?
XXIV. Did the [t]rial [c]ourt err and/or abuse its discretion in
that it unreasonably did not give consideration to the fact that
[F]ather refused to continue with co-parent counseling as
ordered and as supported by the record?
XXV. Did the [t]rial [c]ourt err and/or abuse its discretion in that
it unreasonably did not give adequate consideration to the
extended family and friends of Child in close proximity to
Mother’s home?
XXVI. Did the [t]rial [c]ourt err and/or abuse its discretion in
that it unreasonably did not to give adequate consideration to
the strong relationship that the Child shares with his sibling in
Mother’s home?
XXVII. Did the [t]rial [c]ourt err and/or abuse its discretion in
that it unreasonably did not consider the adverse effect Father’s
uncontrolled anger toward Mother has on the Child, as well as
the repeated unfounded reports to the police and the doctor?
XXVIII. Did the [t]rial [c]ourt err and/or abuse its discretion
when it reached inconsistent conclusions, which are not
supported by the record?
Mother’s Brief, at 23-31.
-6-
J-A22021-16
Issue selection is a key hallmark of appellate advocacy. Mother raises
an astonishing number of issues—28. This shotgun approach reeks of
careless, uninformed appellate advocacy. Justice Robert H. Jackson warned
of the dangers of this approach many years ago:
Legal contentions, like the currency, depreciate through
overissue. The mind of an appellate judge is habitually receptive
to the suggestion that a lower court committed an error. But
receptiveness declines as the number of assigned errors
increases. Multiplicity hints at a lack of confidence in any one. Of
course, I have not forgotten the reluctance with which a lawyer
abandons even the weakest point lest it prove alluring to the
same kind of judge. But experience on the bench convinces me
that multiplying assignments of error will dilute and weaken a
good case and will not save a bad one.
Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs and Oral
Argument,” at 129 (2d ed. 2003) (quoting Robert H. Jackson, “Advocacy
Before the United States Supreme Court,” 37 Cornell L.Q. 1, 5 (1951)). This
“much quoted” advice, unfortunately, “often ‘rings hollow’….”
Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004) (citing
Ruggero J. Aldisert, J. “The Appellate Bar: Professional Competence and
Professional Responsibility–A View From the Jaundiced Eye of the Appellate
Judge,” 11 Cap. U.L. Rev. 445, 458 (1982)). But its importance cannot be
overstated. See, e.g., Jones v. Barnes, 463 U.S. 745, 751-752 (1983)
(“Experienced advocates since time beyond memory emphasized the
importance of winnowing out weaker arguments on appeal and focusing on
one central issue if possible, or at most on a few key issues”); Howard v.
Gramley, 225 F.3d 784, 791 (7th Cir. 2000) (“[O]ne of the most important
-7-
J-A22021-16
parts of appellate advocacy is the selection of the proper claims to urge on
appeal. Throwing in every conceivable point is distracting to appellate
judges, consumes space that should be devoted to developing the
arguments with some promise, inevitably clutters the brief with issues that
have no chance … and is overall bad appellate advocacy.”); Aldisert, supra
at 129 (“When I read an appellant’s brief that contains more than six points,
a presumption arises that there is no merit to any of them.”)
Mother’s raising of such a staggering number of issues causes her
another problem. The Rules of Appellate Procedure limit a principal brief to
14,000 words, unless the brief does not exceed 30 pages. See Pa.R.A.P.
2135(a)(1). Where the brief exceeds 30 pages, a certificate of compliance
with the 14,000 word-count limit must be filed. See id.
Here, the substantive portion of Mother’s brief spans 54 pages and it
fails to include a certificate of compliance. Rule 2101 underscores the
seriousness with which this Court takes deviations from procedural rules, as
it permits us to quash or dismiss an appeal for procedural noncompliance.
Because Mother’s violation of the Rules of Appellate Procedure does not
hamper our ability to dispose of the matters on appeal, we do not quash or
dismiss the appeal. However, we conclude that all content of Mother’s brief
beyond page 53, which correlates to the first 30 pages of the substantive
portion of her brief, is waived for failure to abide by the Rules.
-8-
J-A22021-16
We recognize that all but Mother’s first nine issues, therefore, are
waived. Even if the issues were not waived for failure to abide by the Rules
of Appellate Procedure, we would conclude, based upon thorough review of
the certified record before this Court, and in light of the foregoing applicable
law, that the court did not commit an error of law or abuse its discretion in
fashioning the custody order.
With these admonitions in mind, we proceed to the merits. Perhaps
not surprisingly, none of Mother’s first nine issues has merit.
Our scope and standard of review in custody matters is as follows.
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is
whether the trial court’s conclusions are unreasonable as shown
by the evidence of record. We may reject the conclusions of the
trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted)
(emphasis added).
Further, we have stated:
[T]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge gained
by a trial court in observing witnesses in a custody proceeding
-9-
J-A22021-16
cannot adequately be imparted to an appellate court by a printed
record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
Pursuant to the Child Custody Act, 23 Pa.C.S.A. §§ 5321-5340, in
considering modification of an existing custody order, “a court may modify a
custody order to serve the best interest of the child.” 23 Pa.C.S.A. §
5338(a). “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual well[-]being.” Saintz v. Rinker,
902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted). Section 5328(a)
provides the following enumerated list of factors a trial court must consider.
§ 5328. Factors to consider when awarding custody.
(a) Factors. – In ordering any form of custody, the court
shall determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1)
and (2) (relating to consideration of child abuse and
involvement with protective services).
- 10 -
J-A22021-16
(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.
(16) Any other relevant factor.
- 11 -
J-A22021-16
23 Pa.C.S.A. § 5328(a); see also J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.
Super. 2011) (stating that trial courts are required to consider “[a]ll of the
factors listed in section 5328(a) . . . when entering a custody order”).
We have explained:
Section 5323(d) provides that a trial court “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). Additionally,
“section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, 70 A.3d 808 (Pa. 2013). . . .
A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).
Instantly, the trial court considered all of the Section 5328(a) custody
factors and delineated the reasons for its decision in its opinion that
accompanied the subject order. See Trial Court Opinion, 3/3/16, at 2-14.
The trial court found Section 5328(a)(1), (4), (8), (9), and (10) in favor of
Father, and it found the remaining factors equal between the parties or not
applicable in this case. With respect to Section 5328(a)(16), any other
relevant factor, the court explained its rationale, in part, as follows.
Father (and the home/community setting Father offers) provide
the Child with a nominally more supportive environment than
does Mother in her home/community setting, and, further, given
both parents’ employment in [the School District of Lancaster],
the opportunity for both parents to have frequent contact with
the Child during his waking hours is enhanced if primary physical
custody of the Child is awarded to Father during the school year.
Similarly, given both parents[’] occupations, the Child should
have the benefit of optimizing his time with each parent during
the school summer vacation, when a week-to-week shared
- 12 -
J-A22021-16
physical custody schedule is feasible and is likely to benefit to
the Child’s relationships not just with both parents but with other
family members.
Id. at 14.
In her first issue on appeal, Mother asserts that the trial court erred in
failing to commence the custody trial within 90 days of the date that the
scheduling order was entered pursuant to Pennsylvania Rule of Civil
Procedure 1915.4(c). Mother requests that this Court reverse the custody
order on this basis. The issue involves a pure question of law. Therefore, our
standard of review is de novo, and our scope of review is plenary. See
Harrell v. Pecynski, 11 A.3d 1000, 1003 (Pa. Super. 2011) (citations
omitted).
Rule 1915.4(c) provides:
Rule 1915.4. Prompt Disposition of Custody Cases
...
(c) Trial. Trials before a judge shall commence within 90 days
of the date the scheduling order is entered. Trials and hearings
shall be scheduled to be heard on consecutive days whenever
possible but, if not on consecutive days, then the trial or hearing
shall be concluded not later than 45 days from commencement.
...
Pa.R.C.P. 1915.4(c).
Instantly, the record reveals that, by order entered on June 8, 2015,
the trial court scheduled the custody hearing for September 1, 2015, at
10:00 a.m., which was within the requisite 90-day period. Thereafter,
- 13 -
J-A22021-16
following a pretrial conference on August 19, 2015, by order dated August
21, 2015, and entered on August 24, 2015, the trial court provided, in
pertinent part, as follows:
The significance of this case being scheduled for a 10:00 a.m.
starting time was discussed. As of the date of this Order, the
[c]ourt has not received word that the 9:00 a.m. hearing has
settled. The [c]ourt and counsel agreed that unless the 9:00
a.m. case resolved by August 21, 2015, the hearing in this case
will be rescheduled.
Order, 8/24/15, at ¶ 2. By order entered on September 2, 2015, the trial
court re-scheduled the hearing for January 8, 2016, as a result of the
unrelated case proceeding as scheduled at 9:00 a.m. on September 1, 2015.
Thus, the custody hearing commenced approximately 128 days after the
September 2, 2015 scheduling order.
However, Mother fails to provide any statutory or case authority to
support her argument that a custody order shall be reversed on the basis of
the trial not commencing within 90 days of the entry of the scheduling order,
and nor are we aware of any. As such, we conclude that Mother’s issue is
without merit. Mother’s first issue fails.
In her second issue, Mother argues that the trial court erred and/or
abused its discretion in denying her “request to bypass the custody
conciliation conference and to refer this case directly for a trial.” Mother’s
Brief, at 43. Mother baldly asserts that Pa.R.C.P. 1915.4-1 (Alternative
Hearing Procedures for Partial Custody Actions) and Pa.R.C.P. 1915.4-3
(Non-Record Proceedings. Trial) do not make custody conciliation
- 14 -
J-A22021-16
conferences mandatory. She complains that the court “caused inexcusable
delay to this case by making the parties appear at a custody conciliation
conference at which there was no hope of settlement. . . .” Id. at 44.
Mother states in her brief that, on April 15, 2015, she “made her
request to bypass the custody conference when she presented her Petition
for Modification at Family Business Court, the local motions court in the
Court of Common Pleas of Lancaster County. . . .” Id. at 43. The record
reveals that by order the same date, on April 15, 2015, the trial court denied
Mother’s request and scheduled a custody conciliation conference for May
28, 2015.
The Rules referenced by Mother, along with Rule 1915.4-2, allow
courts to adopt alternative hearing procedures in partial custody actions
involving an office conference conducted by a conference officer. See
Pa.R.C.P. 1915.4-1, 1915.4-2, 1915.4-3. The trial court properly observed,
however, that Mother cites “no statute, rule of law[,] or local rule of
procedure to support” her argument that it erred in not granting her request
to proceed directly to a hearing in this case, and nor are we aware of any.
As such, we conclude that Mother has waived this issue. See In re W.H., 25
A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that issues are waived if
appellate brief fails to provide meaningful discussion with citation to relevant
authority); Pa.R.A.P. 2119(b).
- 15 -
J-A22021-16
In her third issue, Mother argues that the court erred and/or abused
its discretion in deciding the parties’ school district dispute in a manner not
consistent with its prior order. Specifically, Mother asserts that the prior
agreed-upon order, dated May 14, 2014, directed that Child
would attend kindergarten at the School District of Lancaster,
but that the issue could be brought up in the future without
prejudice. The modification petition was filed on April 15, 2015,
in time to address the 2015-2016 school year, however [it was]
not heard until [Child] was halfway through [his] first grade
year. The trial court’s finding[s] were anything but non-
prejudicial regarding the school district issue.
Mother’s Brief, at 45.
The May 14, 2014 custody order incorporated the parties’ stipulation
as follows, in part:
The Child shall be enrolled at, and attend, Buchanan Elementary
for the 2014-2015 school year. The agreement for the [C]hild to
attend Buchanan Elementary for the 2014-2015 school year shall
be without prejudice to either party raising the ongoing school
arrangement that will be in the Child’s best interests for
subsequent school years.
Order, 5/14/14, at ¶ 1.
We discern no prejudice by the trial court. Upon review, the court
carefully and thoroughly considered the parties’ requests regarding the
school district issue. Further, there is no evidence in the certified record that
the court unnecessarily delayed the matter. We conclude that Mother’s
argument is without merit. Mother’s third issue fails.
In her fourth issue, Mother argues that the trial court erred and/or
abused its discretion in not permitting the testimony via telephone of the
- 16 -
J-A22021-16
mother of Father’s younger child.2 Specifically, Mother asserts that, “[t]he
witness was central towards rebutting the self-serving testimony of Father
regarding his parenting abilities, and central to determining the credibility of
Father as well.” Mother’s Brief, at 46.
The record reveals that Mother filed a petition for special relief on
January 6, 2016, wherein she requested the testimony via telephone of L.C.,
whom she alleged is the mother of Father’s daughter and lives in Iowa. In
the petition, Mother asserted that the witness “will substantiate some of the
claims that have been made by Mother, and is necessary.” Petition, 1/6/16,
at ¶ 6. The court denied the petition by order dated January 7, 2016.
When we review a trial court ruling on admission of evidence, we
must acknowledge that decisions on admissibility are within the
sound discretion of the trial court and will not be overturned
absent an abuse of discretion or misapplication of law. In
addition, for a ruling on evidence to constitute reversible error, it
must have been harmful or prejudicial to the complaining party.
An abuse of discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will, as shown by the evidence
or the record, discretion is abused.
Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (citation omitted).
Mother argues that, “[i]t is patently unfair and unreasonable that this
witness, who knows Father intimately and resides in Iowa, was not
____________________________________________
2
Father testified that, in July 2015, he learned that he has a four-year-old
daughter who resides in Iowa, whom he has never met. See N.T., 1/8/16,
244-245.
- 17 -
J-A22021-16
permitted to testify at all. In contrast, one of [F]ather’s witnesses, [A.C.], a
resident of Father’s neighborhood in Lancaster, Pennsylvania, was permitted
by the court to testify by telephone.” Mother’s Brief, at 47. We disagree.
Contrary to Mother’s assertion, there is no record evidence that the
witness possessed any relevant knowledge in this case. Indeed, the record
demonstrates that the witness lives in Iowa; the female child born from the
relationship between her and Father is four years old; and Father learned of
his daughter’s existence approximately six months before the subject
proceedings and had yet to meet her. Upon careful review of the testimonial
evidence, we discern no abuse of discretion by the trial court in this
evidentiary ruling.
Even if the court abused its discretion, we would conclude that it does
not constitute reversible error as Mother fails to assert how she was harmed
or prejudiced by the ruling. Mother’s fourth issue fails.
In her fifth issue, Mother argues that the trial court erred and/or
abused its discretion in failing to examine in camera Father’s employment
records. We disagree.
The trial court found that, “[d]uring 2014/2015 academic year, Father
was on leave with pay due to his suffering a concussion after a fall at work
and to due to an accusation by a student of inappropriate behavior. Father’s
physical condition healed and the accusation was resolved in Father’s favor,
- 18 -
J-A22021-16
and he returned to work full time for the 2015/2016 academic year.” Trial
Court Opinion, 4/15/16, at 10, ¶ 50 (footnote omitted).
By order dated August 21, 2015, the court provided:
8. Counsel for Mother has subpoenaed Father’s employment
records. Counsel for Father considers these records to be
irrelevant. The court will examine Father’s employment records
in camera with counsel present to ascertain relevancy as to proof
of facts pertaining to parenting in the Child’s best interests
and/or, potentially, for impeachment purposes. The content of
such records shall be maintained in confidence except to the
extent necessary for disclosure in the context of this litigation.
....
Order, 8/21/15, at 2, ¶ 8. The court explained, however, that it did not
review the records in camera because “the School District of Lancaster filed
a motion to quash the subpoena and the records were not produced. The
motion was not disposed of, but Mother did not move to enforce the
subpoena.” Trial Court Opinion, 4/15/16, at 10, n. 4.
Mother disagrees that a motion to quash was filed in this case.
Nevertheless, she fails to assert in her brief that she obtained the records
and provided them to the trial court for review. Therefore, we conclude that
Mother’s argument is without merit. Mother’s fifth issue fails.
In her sixth issue, Mother argues that the court abused its discretion in
its consideration of the Section 5328(a) custody factors, supra. Specifically,
she states, “[f]or example, the factors involving extended families and the
child’s sibling relationships clearly and importantly favor Mother. Yet, the
- 19 -
J-A22021-16
trial court seems to have difficulty in merely stating that.” Mother’s Brief, at
50.
With respect to Section 5328(a)(5), the availability of extended family,
the trial court found that, “[b]oth sets of [maternal and paternal]
grandparents are substantially involved with the Child’s life.” Trial Court
Opinion, 3/3/16, at 5. The court further found that, “Mother has several
members of her extended family (in addition to her parents) who reside in
the community and who are involved in the Child’s life.” Id. The court
specifically noted Child’s great uncle and aunt. With respect to Section
5328(a)(6), the child’s sibling relationships, the court found, in part, that
Child “has a half-sibling in Mother’s household, a brother who was
approximately twelve years of age. . . .” Id. at 6.
Upon careful review, we discern no abuse of discretion by the court in
the weight it placed upon Section 5328(a)(5) and (6). As mentioned above,
the court placed greater weight upon Section 5328(a)(1), (4), (8), (9), and
(10), which it found in favor of Father. In addition, the court weighed under
Section 5328(a)(16) the fact that both parents are employed by the School
District of Lancaster. Therefore, the court concluded, “the opportunity for
both parents to have frequent contact with the Child during his waking hours
is enhanced if primary physical custody of the Child is awarded to Father
during the school year. . . .” Trial Court Opinion, 3/3/16, at 14. Because the
court carefully and thoroughly considered all of the Section 5328(a) factors
- 20 -
J-A22021-16
in its opinion accompanying the subject order, and further explained its
rationale for the custody order in its Rule 1925(a) opinion, we adopt the
court’s March 3, 2016 and April 15, 2016 opinions as our own. 3 Mother’s
sixth issue fails.
In her seventh issue, Mother argues the court erred and/or abused its
discretion in failing to “give any consideration to Father’s history of not
testifying truthfully at a prior proceeding.” Mother’s Brief, at 51. Specifically,
Mother asserts:
The trial court has used its faulty memory to base this decision
on prior testimony when it serves Father. Yet, it does not
remember the testimony of the father of Mother’s older son who
testified at a prior hearing that Mother is a great mom. The trial
court forgets that Father lied about his first suspension from his
position as a school principal at a prior hearing, and the trial
court forgets the testimony it heard at a recent support hearing
involving Father when the mother of Father’s youngest child
testified by telephone.
Id.
Mother alleges evidence that is not a part of the certified record before
this Court. “For purposes of appellate review, what is not of record does not
exist.” Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996)
(citation omitted). Therefore, we have no basis upon which to analyze her
claim. We conclude that Mother’s seventh issue is without merit.
____________________________________________
3
The parties are directed to attach a copy of these opinions in the event of
further proceedings in this matter.
- 21 -
J-A22021-16
In her eighth issue, Mother argues that the court abused its discretion
in failing to “give any consideration to the fact that Father was suspended
from his employment.” Mother’s Brief, at 52. The crux of Mother’s argument
is that the court failed to weigh against Father his paid leave during the
2014-2015 school year due, in part, “to an allegation of inappropriate
behavior by a student.” Id. We reject Mother’s claim. Based on the court’s
finding, stated above, that Father was on paid leave due to suffering a
concussion, as well as an accusation by a student of inappropriate behavior,
both of which were resolved in his favor, we discern no abuse of discretion
by the court in the weight it placed upon this evidence in fashioning the
subject order. Mother’s eighth issue fails.
Finally, in her ninth issue, Mother argues that the court erred and/or
abused its discretion in “finding that awarding primary physical custody to
Mother would restrict Father’s contact with the child. However, the trial court
goes on to award primary physical custody to Father without any analysis or
consideration of how that award would minimize the child’s time with
Mother.” Mother’s Brief, at 53. Mother’s claim is without merit.
In its opinion accompanying the subject order, the court stated, in
part:
Mother seeks primary physical custody of the Child not only
during both the school year but also during the school summer
vacation. She provided no credible rationale for limiting Father’s
exposure to the Child your round. This arrangement would have
a severe impact upon the Child’s time and, by extension, his
relationship with Father.
- 22 -
J-A22021-16
Trial Court Opinion, 3/3/16, at 12. Further, the court emphasized in its Rule
1925(a) opinion:
It is highly significant that Mother believes that during the
extended time period when all three members of this triangular
relationship - Mother, Father, and Child - are free of their full-
time “occupations”, i.e., during the school summer vacation,
Mother should nonetheless have primary physical custody of the
Child, with Father’s time with the Child being confined to a
limited schedule plus two weeks of vacation. By contrast, Father
supported an alternating week fully shared schedule of physical
custody of the Child during the summer.
Trial Court Opinion, 4/15/16, at 19. We deem the foregoing conclusions
reasonable in light of the court’s sustainable findings of fact. As such,
discern no abuse of discretion in this regard. Mother’s ninth issue fails.
Upon review, we conclude that the trial court carefully and thoroughly
considered Child’s best interests in fashioning its custody award, and the
record supports the court’s decision. Accordingly, we affirm the order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
- 23 -
Circulated 11/02/2016 10:28 AM
...
IN THE COURT OF COMMON PLEAS OF LANCASTER ·COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
~RE)1{x:xxxx~ J.S.F. "O
I
,.
Plaintiff ~ ~·
' ~.-1
v. No. CI-09-09368
>t;;r:
"\'::::,
~.Z· ·...,..I ,..,
K.G.F >.:.?
;rJ "1 0
>
``~'
~)00(~
n/k/a
K.G.S
``·-
``
~ '·'
. (,/) ·~ .·~
'1'
• I-
Defendant :i•,!,o
,,q:i
"'1
r
q ~
rt'!
OPINION SUR APPEAL
This appeal concerns a child custody case. A Final Custody
Order was entered on March 3, 2016. The Defendant (hereinafter,
"Mothern) filed a timely appeal on March 16, 2016.
PROCEDURAL HISTORY
Mother filed a Petition for Modification and Contempt in
Custody on April 15, 2015·, seeking, inter alia, primary physical
P.F.
custody of the parties' child, `` (hereinafter, the
"Child"). The Plaintiff (hereinafter, "Father") filed an Answer
to Petition for Modification on the same date; Father's pleading
included "New Matter" which was in essence a counter-claim for
primary physical custody of the Child. Mother requested to
bypass a Custody Conciliation Conference and proceed directly to
a Custody Hearing.1 The-Court denied this request. A Custody
Conciliation Conference was held May 28, 2015, and no agreement
.was reached by the parties. The Custody Conference Officer
Mother cited no statute, rule of law or local rule of procedure to
support such relief.
78
maintained the present custodial arrangement in which the parties
share legal and physical custody of the Child pursuant to an
Order dated February 28, 2012, A Custody Hearing was scheduled
for September 1, 2015, at 10: 00 a. m. 2
The thrust of Mother's Petition for Modification which is
the subject of this appeal was that she be g~anted primary
physical custody ~fter which the Child would attend school in the
Cocalico School Dis~rict where she resides. Father's position is
that he should be granted primary physical custody of the Child,
as a result of which the Child would continue to attend school in
the School District of Lancaster, where he attended full-day
kindergarten during the prior academic year and where he is
presently in the first grade. Both parents are employed as
educators by the School District of Lancaster.
Hearings were held on January 8, 2016, January 14, 2016, and
February 17, 2016.
2
As a courtesy to the parties and counsel, rather than compelling
the parties, counsei, and witnesses to be ready to proceed on September 1,
2015, regardless of the status of the case scheduled for 9:00 a.m. on that
date, counsel were advised that if the 9:00 a.m. case came off the Court's
schedule for any reason, the Court would advise them in sufficient time so
they could be prepared to proceed with the Hearing on September 1. By the
time the Court was advised by counae l in the case listed for 9: 00 a. m . that a
settlement had been reached, it was too late for counsel to be prepared to
proceed with the hearing on September 11 2015, and by agreement and without
objection from either party the instant case was rescheduled to January B,
2016,
-2-
79
FINDINGS OFFACT
P.F.
1, ~X, the child o f the parents, was born May 1,
2009. He is hereinafter referred to as the "Child". (N.T.
01/08/2016 at page 6 and page 244; Findings and Order dated March
3 I 2016)
2, Mother has been employed as an educator in the School
District of Lancaster for eleven years. (N.T. 01/08/2016 at page
6 and page 54)
3. Father also is employed as an educator in the School
District of Lancaster. (N.T. 01/08/2016 at pages 225-226 and
pages 234-235)
4. Both parents have been employed as educators in the
School District ·of Lancaster since before the Child was born.
(N.T. 01/08/2016 at page 234)
5·. Prior to the beginning of the present hearings, the
parties operated under a court order with a shared physical
custody arrangement in respect to the Child whereby the Child was
exchanged several times each week on a rotating bi-weekly
schedule. (N.T, 01/08/2016 at page 7 and page 247)
6. Mother did not like the then current custody schedule
because she believed there was too much back and forth for the
Child's well being. (N.T. 01/08/2016 at page 7)
7. Father had concerns about the then current physical
custody schedule because it lacked the consistency and routine he
-3-
80
believes is in the Child's best interest. (N.T. 01/08/2016 at
page 247)
A.E.
8. Mother has another child, ~)E}~)~,)(~a, who is 12 years
old and lives with her. (N.T. 01/08/2016 at pages 5 and page 7)
9. When Father and Mother were an intact family, Father
was substantially the "father" figure for Mother's son ``-E.
(N.T, 01/08/2016 at page 68 and N.T. 01/14/2016 at page 19)
A.E.
10. Mother permitted Father to see Xl<~ after they
separated; she then stopped contact, reinstated it, and then
stopped it again. (N.. T. 01/08/2016 at pages 115-117, 160 and
Plaintiff's Exhibit 2, 01/08/2016)
A.E. R.E.
11. The biological father of ``~a< is``~,
A.E.
who sees~ about once a month. (N.T. 01/08/2016 at pages 75-
76 and pages 162-163)
12. Mother is comfortable with that arrangement in respect
A.E.
to JU(OOc' s father. (N.T, 01/08/2016 at pages 76-77)
13. Father has a second child who is a girl. Father did
not learn that he is the parent of a second child until July of
2015 when the second child was four years of age. (N.T.
01/08/2016 at page 244 and N.T. 02/17/2016 at page 49)
-4-
81
14. Father's second child resides in Davenport, Iowa.
Father has not seen his second child because that child's mother
does not divulge information.3 (N.T. 02/17/2016 at page 49)
15. Mother had a current boyfriend whom she had been seeing
for seven months as of the time of the first hearing on January
8, 2016. (N.T. 01/08/2016 at pages 16-17)
16. Mother's boyfriend was known to the Child. Mother's
boyfriend was very supportive of Mother and her children in
respect to the children's various activities. (N.T. 01/08/2016
at pages 52-53)
17. By the time of the final hearing, Mother had ended her
relationship with the boyfriend. (N;·T. 02/17/2016 at page 55 and
page 65)
18. Both parents attend the Child's medical appointments.
(N.T. 01/08/2016 at page 49)
19. The Child is presentiy in the first grade. · (N. T.
01/08/2016 at page 6)
20. Mother desires that the Child attend school at
Reamstown Elementary in the Cocalico School District for the
upcoming sohool year which is close to where she lives, as
opposed to Buchanan Elementary School, the school the Child
3
L.V.
Mother requested that the mother of Father's second child, ~Jlti
``' be permitted to testify against Father. Father objected as to
relevancy. By Order dated January 7, 2016, the court denied Mother,.s request.
Mother did not renew her request to have this witness testify on the record,
and therefore Mother failed to preserve this ruling as an alleged error for
review upon appeal.
-5-
82
presently attends within the School District of Lancaster where
she works. (N.T. 01/08/2016 at page 6 and page 54)
21. Mother prefers Reamstown Elementary School based upon
A.E.
her personal experience with son~' who attended that school
for five academic years. (N.T. 01/08/2016 at pages 54-5)
22. As academic year 2014-2015 approached, both parents
agreed that the Child remain in the School District of Lancaster.
The agreement was made without prejudice to future determinations
regarding where the Child should attend school. (N.T. 01/08/2016
at page 55)
23·. Mother agreed to that arrangement because Buchanan
Elementary School offered full-day kindergarten while Reamstown
Elementary School offered only half-day kindergarten. (N.T.
01/0ij/2016 at page 55 and pages 104-105)
24. The Child has an established routine at Buchanan
Elementa~y School. (N.T. 01/08/2016 at pages 247)
25. The Child sustained a puncture wound to his upper thigh
in November of 201~, apparently while he was at school. (N.T.
01/08/2016 at pages i2-13)
26. Mother is concerned that the Child is bullied at
Buchanan Elementary School. Mother reported her concern to the
school nurse but she has not reported her concern to the
principal, to the Child's teacher, or to a guidance counselor.
(N.T. 01/08/2016 at pages 87-88)
-6-
83
27. The incidence of bullying within the School District of
Lancaster is statistically insignificant. (N.T. 01/08/201~ at
pages 110-111)
28. Father's home is five minutes in travel time from the
child's present school, Buchanan Elementary School. (N.T.
01/08/2016 at page 105)
29. Mother's home is thirty minutes in travel time from the
Child's present school, Buchanan Elementary School. (N.T.
01/08/2016 at page 106)
30. If the Child attends Reamstown Elementary School,
Mother will not be able to take the Child· to school or to pick up
the Child from school due to her work schedule. (N. T. 01/ O 8/2 016
at page 18 and page 100)
31. There is greater racial and ethnic diversity among the
student body at Buchanan Elementary School than there is at
Reamstown Elementary School. (N.T. 01/08/2016 at pages 108-109)
32. The Child is doing very well in school. (N.T.
01/14/2016 at page 30)
33 .. It would be traumatic for the Child to changes schools.
(N,T, 01/14/2016 at page 17)
34. Father avails himself of all opportunities to
participate in events at the Child's school, (N.T. 01/14/2016 at
pages 15-16)
-7-
84
35. Mother attends parent-teacher conferences in respect to
the Child at Buchanan Elementary School, (N.T. 01/08/2016 at
page 50 and page 99)
36. Father attends parent-teacher conferences in respect to
the Child and the annual back to school night at Buchanan
Elementary School, (N.T, 01/08/2016 at page 50 and pages 226-
227)
37. Since the Child has attended school, there have been
several after-hours school related events during Mother1s periods
of physical custody that Mother and the Child did not attend.
(N.T. 01/08/2016 at page 93 and page 98)
38. Mother has not facilitated Father having additional
time with the Child to take the Child to after-school events.
(N.T. 01/08/2016 at page 93 and page 98)
39. The Child has been subjected to injuries which caused
A.E. R.E.
bruising by~' by~' and by the Child's paternal
grandfather during Mother1s periods of physic'al custody, (N,T,
01/08/2016 at pages 78-80, 157-158 and 213-214, Plaintiff's
Exhibits 11 and 12, 01/14/2016)
40. Mother does not provide adequate supervision when the
Child is in her care and the Child has been injured as a result.
(N.T. 01/14/2016 at page 21)
41. In October and November of 2015, Mother noticed
concerning behaviors regarding the Child, but Mother took no
-8-
85
action with regard to these concerns. (N.T. 01/08/2016 at pages
111-112)
42. Father had enrolled the Child in counseling in 2013,
but Mother does not believe that the child needs therapy. (N.T.
01/08/2016 at pages 45-47 and pages 90-91)
43. Father has a very loying relationship with the Child
and Father. is attentive to the Child's needs. (N.T. 01/08/2016
at pages 228-230 and page 251)
44. Father ?Wns his home and has resided there for four
years. (N.T. 01/08/2016 at page 233)
45. Father provides ~n established schedule for the Child
while the Child is in his physical custody. (N.T. 01/14/2016 at
pages 7-9 and 11)
46. The Child has several friends in Father's immediate
neighborhood. (N.T. 01/08/2016 at page 255)
47. Father and the Child occasionally entertain friends of
the Child for sleep-overs at Father's home .. (N.T. 01/08/2016 at
page 259)
48. Mother has resided in her home for five and one-half
years. (N.T. 01/01/2016 at pages 5-6)
49. The Child spends significant social time at Mother's
parents home during warm weather (as they have a swimming pool)
and the Child socializes with extended family there. The Child
is the youngest child among the group of cousins. (N.T.
-9-
Sq
01/08/2016 at pages 64-65, pages 153-154, page 165, page 175, and
pages 195-196)
50. During the 2014/2015 academic year, Father was on leave
with pay due to his suffering a concussion after a·fall at work
and due to an accusation by.~ student of inappropriate behavior.
Father's physical condition healed and the accusation was
resolved in Father's favor, and he returned to work full time for
the 2015/2016 academic year.4 (N.T. 01/08/2016 at pages 237-240)
51. During the year that Father was on paid leave, Father
devoted himself to maximizing every opportunity to spend. time
with the Child. (N.T. 01/08/2016 at page 240)
52. Father prioritizes one-on-one time with the Child
during his periods of physical custody whereas Mother tends to
have her extended family around the Child constantly during her
periods of physical custody. (N.T. 01/14/2016 at pages 25-26 and
pages 42-43).
53. Mother does not believe that ~er relationship with the
Child would be hurt if Father was to have primary physical
custody of the Child because the relationship between Mother and
the Child is strong. (N.T. 01/08/2016 at pages 132-133)
4
Mother attempted to gain access to Father's confidential
employment records. The Court, by Order dated 8/21/2015, was willing to
examine the records in camera over Father's objection to relevancy. However,
the school District of Lancaster filed a motion to quash the subpoena and the
records were not produced. The motion was not disposed of, but Mother did not
move to enforce the subpoena.
-10-
87
54. ·Father suggests that Mother should have custody.on
school holidays that fall on her weekends and an expanded period
of physical custody of the Child during the Christmas holiday
school recess. (N.T. 01/14/2016 at pages 14-15)
55. Mother would not encourage contact between Father and
the Child if she were granted primary physical custody of the
Child. (N.T. 01/14/2016 at page 22)
56. Father earnestly attempts to co-parent with Mother.
(N.T. 01/14/2016 at page 24)
57. The Child is exposed to inappropriate movies for his
age during Mother's custodial periods. (N.T. 01/14/2016 at pages
59-60)
58. Father's phone calls to the Child during Mother's
custodial periods took place on a speaker phone with other people
speaking in the background1 which makes it all but impossible for
Father to have a conversation with the Child. (N,T. 01/14/2016
at pages 60-62)
59. Father sends Mother e-mails regarding co-parenting
issues. (N.T. 01/08/2016 at page 92)
60. Mother is generally uncooperative with Father regarding
the Child. (N.T. 02/17/2016 at pages 52-55)
61. Father has had one romantic relationship during the
past several years. (N.T. 01/14/2016 at page 65)
-11-
88
62. Mother wishes to go from a shared physical custody
arrangement to her having primary physical custody of the Child
year round, despite the fact that both Mother and Father are
educators who are fully available to the Child during the school
summer vacation. (N.T. 01/08/2016 at pages 127-129)
63. Father requested primary physical custody of the Child
during the school year and a shared physical custody arrangement
during the school summer vacation. (N.T. 01/14/2016 at pages 13-
14 and 20)
CONCLUSIONS OF LAW
1, The best interests of the Child, based upon the
factors as delineated at 23 Pa. c.s.A. § 5328 (a) that
legitimately affect this· Child's ~hysical, intellectual, moral
and spiritual well-being will be best served by granting primary
physical custody to Father during the school year.5
2. Father is more likely to encourage and permit frequent
and continuing contact between the Child and Mother than Mother
is to encourage and permit frequent and continuing contact
between the Child and Father.
3. Father will provide greater stability and continuity
in the Child's education,· family life and community 1 if e.
6
All of the factors stated in 23 Pa. c.s.A. § 5328 (a) were addressed
in the Court's Memorandum Opinion and Order dated March 3, 2016, and will not
be repeated herein.
-12-
89
DISCUSSION
The polestar for thl;:l Court in a child custody proceeding is
to determine the besi interest of the child.
The paramount concern in a child custody case is
the best interests of the child, based on a
consideration of all factors that legitimately affect
the child's ~hysical, in~ellectual, moral and spiritual
well-being. This determination is to be made on a case
by case.basis. Speck v. Spadafore, 895 A.2d 606, 609
(Pa.Super. 2006) (quoting Swope v. Swope, 455 Pa. Super.
587, 689 A.2d 264, 265 (1997); citing Myers v.
DiDomenico, 441 Pa. Super. 341, 657 A.2d 956, 957
(1995).
Chapter 53 (contained in the Domestic Relations Act), known
as the "Custody Act", requires that when making a custody award,
"[t]he court 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 Court complted with this provision in its
Order dated March 3, 2016. Those Findings are incorporated
herein and made part of this Opinion Sur Appeal.
The Superior Court's role in reviewing a Custody Order is as
follows:
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
determination. 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
-13-
90
law, or are urrre aaoriab l,e in light of the sustainable
findings of the trial court.
With any child custody case, .the paramount concern
is the best interests .of the child. This standard
requires a case-by-case assessment of all the factors
that may legitimately affect the physical,
intellectual, moral and spiritual well-being of the
child. J.R.M, v. J.E.A,, 33 A.3d 647, 650 (Pa.Super.
2011)
As the trier of fact, this Court determines cTedibility, as
'long as the findings are supported by competent evidence.
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa.Super.2004), Dranko v.
Dranko, 824 A.2d 1215, 12.19 (Pa.Super.2003) (citing Robinson v.
Robinson, 538 Pa. 52, 57, 645 A.2d 836, 838 (1994); Andrews v.
Andrews, 411 Pa.Super. 286, 601 A,2d 352, 353 (1991) affirmed,
533 Pa. 354, 625 A.2d 613 (1993).
The Superior Court, in its non-precedential opinion issued
on A~ril 10, 2015, in the case of A,D,W, v. L.A.K,, 2015 WL
7289342, and citing C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa.Super.
2012), reiterated the standard of review it applies in custody
cases:
In reviewing a custody order, our scope is of the
broadest type and our standard is abuse of discretion.
We must accept findings of the trial court that are
supported by competent evidence of record, as our role
does not include making independent factual
determinations. In addition, with regard to issues of
credibility and weight of the evidence, we must defer
to the presiding trial judge who viewed and assessed
the witnesses first-hand, However, we are not bound by
the trial court's deductions or inferences from its
factual findings. Ultimately, the test is whether the
trial court's conclusions are unreasonable as shown by
the· evidence of record. We may reject the conclusions
-14-
91
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., supra, at 443.
We have stated:
[t]he discretion that a trial court employs in
custody matters should be.accorded the utmost respect,
given the special nature 9f the proceeding and the
lasting impact the result will have on the lives of the
parties concerned. Indeed, the knowledge gain~d by a
trial court in observing witnesses in a custody
proceeding cannot adequately be ~mparted to an
appellate court by a printed record. Ketterer v.
Seifert, 902 A.2d 533, 540 {Pa.Super. 2006)
quoting Jackson v. Beck, 858 A.2d 1250, 1254
(Pa. Super. 2004 )..
In M,A.T. v. G.S.T., 989 A.2d 11 (Pa.Super. 2010)
{en bane), we stated the following regarding an abuse
of discretion standard:
Although we are given a broad power of review, we
are constrained by an abuse of discretion standard when
evaluating the court's order. An abuse of discretion is
not merely an error of judgment, but if the court's
judgment is manifestly unreasonable as shown by the
evidence of record, discretion is abused. An abuse of
discretion is also made out where it appears from a
review of the record that there is no evidence to
suppqrt the court's findings or that there is a
capricious disbelief of evidence. Id. at 18-19.
The instant· case has been before the Court many times during
the Child's young life, and no one familiar with it would
characterize it as anything other than a "high conflict" case.
In the immediate setting, however, the compelling reason that it
is before the Court is that both parents are concerned about the
Child's ability to continue to succeed in school if the schedule
of physical custody of the Child now in place remains in effect.
-15-
92
The Child is presently in the fir~t grade. School has
become the Child's full-time occupation during the academic year.
The parents ~re in agreement that it is not in the Child's best
interest that he be shuttled back and forth between their homes
during the. academic year. The distance and travel time between
the parents' homes is a compelling consideration. Each of the
potential academic settings has advantages and disadvantages.
One may have slight educational advantages. One may have certain
social and societal advantages. On balance, there i~ no "clea~
winner" in respect to the schools themselves. That result, in
itself, is not unusual.
However, there is a factor present in this c.ase which is
atypical. Both parents are full-time employees of the School
District of Lancaster. In the Court's estimation, this factor
has distinct advantages for the Child. Both parents are
accessible to the Child during their work days should any
emergency arise. Both parents are accessible to the Child to
attend school-related activities which occur after school.
Depending upon their own professional schedules and flexibility,
both parents are available to attend the Child's in-school
activities. None of this accessibility and availability would
pertain if the Child attends school in the Cocalico School
District. Additionally, both parents are well familiar with the
School District and have connections to and knowledge about its
-16-
93
professional staff and curricula. Undoubtedly, both parents have
gained insights about how to maximize the Child's educational
experience within the School District of Lancaster.
Further, while there is some inconvenience for Mother
associated with school-related activities which occur later in
the evening if the Child remains in the School District of
Lancaster (as Mother would either have to stay in Lancaster or
make a round trip home and back) , bot h parents would be
substantially excluded from participating in the Child's in-
school activities if the Child attended school in the Cocalico
School District. At- minimum, they would be burdened by being
forced to take leave or vacation, as any participation would
ostensibly require a half-day away from their professional
ass:j.gnments.
On balance, this Court is of the opinion that it is in the
Child's best interest that he remain a student in the School
District of Lancaster. For the sake of the Child's· stability and
consistency during the academic year, that determination
mitigates in favor of placing the Child in Father's physical
custody during those times when school is in session. That
issue, however, is not the only issue.
Not unlike- the rest of humanity, Father and Mother each have
their positive qualities and each have their flaws. They each
have unique and peculiar circumstances in· their lives, and their
-17-
94
lives now intersect only in respect to their relationship with,
and responsibility to, the child whom they share. Because of
their inability to resolve their differences, it is this Court's
obligation to strive to find what is in the Child's best interest
going forward, based upon the record presented.
The Court has attempted to identify in the above Findings of
Fact the most salient realities which define a path centered upon
the Child's present and future needs. That path, once laid out,
led to the Court's determination that the best interest of the
Child requires that primary physical custody of the Child be
awarded to Father, at least for the time being.
An assessment of Mother's behaviors disclose that, as
suggested by Father, Mother is perfectly comfortable with
minimizing the role that the fathers of her two sons play in
their lives. That is the eet ab l Lshed arrangement in respect to
her older son; apparently that boy's father is complacent about
the arrangement. It is also evident in the manner in which
Mother was willing to exclude Father from the life of her older
child, to whom Father had fulfilled a paternal role, after Mother
and Father's marriage dissolved. However, in the instance of the
Child and Father, Father is anything but complacent in respect to
his engagement with the Child. Father has steadfastly insisted
that he should be afforded the right and the opportunity to
actively parent the Child. There are numerous indications that
-18-
95
Father has designed his life around his commi~ment to not only
meet, but to exceed, the Child's needs in every respect. In
response, Mother has thrown_obstructi~ns in Father's way at
almost every opportunity, and has displayed a distinct motive to
be uncooperative. It is not lost upon the Court that Father has
the ability to be abrasive and abrupt at times, and that.the
parties' inability to communicate is not exclusively Mother's
fault. However, when the psychological and emotional needs of a
child are at stake, it is incumbent upon the responsible adults
to find ways to get beyond their personal differences, It is
highly significant that Mother believes that during the extended
time period when all three members of this triangular
relationship - Mother, Father, and Child - are free of their
full-time "occupations", i.e., during the school summer vacation,
Mother should nonetheless have primary physical custody of the
Child, with Father's time with the Child being confined to a
limited schedule plus two weeks of vacation. By contrast, Father
supported an alternating week fully shared schedule of physical
oustody of the Child during the summer. As between the two
parents in this case, it is this Court's assessment, based upon
the factual record and the attitudes evident in their demeanor
while on the stand, that Mother strays when measured against the
statutory factors which favor parents who encourage a child to
have meaningful relationships with both parents and which bear on
-19-
96
. ,,.
att~mpts to turn a child against a parent (as s~ch attempts may
be overt or subtle, as in the present case). This Court's
analysis of thefe Key factors, and of the balance of the
statutory factors, is extensively elucidated in the Findings and
Order issued by this Court on March 3, 2017, which are the
subject of the present appeal.
In its Order, this Court has dir'ected an orderly arrangement
which is intended to, and should, support the Child's needs while
he is engaged in his academic studies. For those times while he
is not so engaged, this Court has directed an orderly arrangement
which is intended to, and should, enable both Mother and Father
to have meaningful periods of time with th~ Child and which will
enable the Child to enjoy relationships with his parents while
also enjoying his time with his half-brother in Mother's home,
his cousins and maternal grandparents at Mother's parents' home,
and his neighborhood friends around Father's home. This overall
arrangement is intended to, and should, provide balanced
intellectual, social, and emotional enrichment opportunities for
the Child in settings which are stable and nurturing.
In another iteration of the definition of an "abuse of
discretion", the Superior Court has stated: "[an) abuse of
discretion is not merely an error of judgment; if, in reaching a
conclusion, the court overrides or misapplies the law, or the
judgment exercised is shown by the record to be either manifestly
-20-
97
unreasonable or the product.of partiality, prejudice, bias or ill
will, discretion will be abused." Bulgarelli v. Bulgarelli, 934
A.2d 107, 111 (Pa.super. 2007).
This Court respectfully submits that no error of judgment,
and most certainly no abuse of this Court's discretion, has
occurred in this case.
CONCLUSION
For all of the above reasons, the Court suggests tha t;
Mother's appeal lacks merit, and respectfully further suggests
that the Custody Order entered.on March 3, 2016, should be
affirmed.
Dated: April 15, 2016
Copies to:
M. Lucile Longo, Esquire
H0naman, Longo & Longo
15 North Lime Street
Lancaster PA 17602
°'\rozefa K. Jackson, Esquire
643 West Chestnut Street
Lancaster PA 17603
NOTICE OF ENHW OF onnt:.n on DECHEE
PUHSUANT TOP/\. n.c.r: NO: ~!3(J
NCHIFIC/ITION • Tiff /\TT/\CllU) DOCUMFNT
-21- llt\S DEEN r!Lf:[) IN 'fl !IS CM)f:
PHOlllONOTAfWOF I.ANC/\S'l'EH CO., PJ\
IJ,l\Tf:: l/-/5-/ ~
98
Circulated 11 /02/2016 10:28 AM
nnn>r·ri
IN THE counr oF coMMoN PLEAs or LANcASTER':·coi:tN1't, 'i?ENNsYLvANIA
~ uo r.-11 rn
CIVIL ACTION - 11tmdu1R.
-3 PM 3: 4 a
``~ J.S.F.
"t R•l'fl!i"J-');"Tl,
l •. J • I rnt''~ Of:r:1cE
Plaintiff ,\., • 1 ....
.. ,.' · ,,. t. ...
,··R l'A (
LI •.riv;-· . ; I c , .
v. No. CI-09-09368
K.G.F.
``XXK~ n/k/a
``~ K.G.S.
Defendant
FINDINGS
Upon consideration of the Defendant's Petition for
Modification and Contempt in Custody Order filed April 15, 2015,
and the Plaintiff's Answer to Petition for Modification, and
after hearings held January 8, 2016, January 14, 2016, and
February 17, 2016, at which the Plaintiff (hereinafter, "Father")
was present and was represented by M. Lucile Longo, Esquire, and
the Defendant (hereinafter, "Mother") was present and was
represented by Jozefa F. Jackson, Esquire, the Court makes the
following findings, giving weighted consideration to those
factors which affect the safety of the child of the parents,
. P.J.F.·
``)O®{i)Ot (date of birth May 1, 2009; hereinafter, the
"Child") .
In ordering any form of custody, the Court must determine
the best interests of the child by considering all relevant
factors, giving weighted consideration to those factors which
~ffect the safety of the child. See 23 Pa. C.S.A. § 5328 (a).
561a
Based upon the testimony and other evidence admitted at the
hearing, the Court makes the following findings in respect to the
issue of custody of the Child:
1. Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
Father is more capable than Mother of encouraging and
permitting frequent and continuing contact between the Child and
the other parent. The Court issued its first Interim Order in
this custody action on November 30, 2009. Father filed the
initial petition for custody as Mother was attempting to withhold
the Child from Father since the Child's birth. Apparently, from
the evidence adduced during the most recent round of hearings,
Mother remains intent upon restricting Father's role in the
Child's life.
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 wn ict: party can
better provide adequate physical safeguards and supervision of
the child.
There is no issue of past or present abuse committed by a
party or a member of the party's household.
-2-
562a
3. The parental duties performed by eecti party on behalf
of the children.
Both parents are able to perform and have performed typical
parenting duties. Since the Child's birth, the parents have been
following a shared physical custody arrangement for the most
part. Coming in to the present proceedings, the schedule called
for a rotation wherein the Child, who is presently in the first
grade, shifts physical custody between his parents frequently
during the school week.
4. The need for stability and continuity in the child's
education, family life and community life.
Mother requests an award of primary physical custody of the
Child. If such were to be granted; a concomitant effect would be
a change from the Child's present school in the School District
of Lancaster ("SDL") to a school in the Cocalico School District.
Each school district has its advantages and its disadvantages.
The population in SDL is far more diverse, which is among its
advantages. As both parents work as educators for SDL, they have
the ability to discern and potentially implement choices for the
Child in terms of teachers and educational placements. Cocalico
may have an overall stronger academic performance quotient, but
that is likely related to the socio-economic status of its
population. The Child has, and will have, the benefit of a
enriched learning experience through his family which should
-3-
563a
enable his performance to be at the higher side of the academic
performance curve in SDL.
Mother expressed concerns that the Child has been bullied by
classmates at SDL. Without minimizing the potential harm which
may result if bullying behavior is unchecked, it must be noted
that bullying is the complaint de jour and that bullying occurs
among children of all backgrounds. Stories of bullying among
students at elite preparatory schools are legend; there is little
doubt that it occurs in SDL or that it also occurs in Cocalico.
The question is whether the institution identifies the problem
and responds appropriately. Here, there was concern about
inadequate response. Again, given the professional nexus between
both parents and SDL, it is anticipated that they have the
ability to motivate institutional response should any bullying
become problematic, especially if they can lay aside their
personal enmity and work together toward that end.
Father engages in after-school activities with the Child.
Mother does not. While it is more convenient for Father to do
so, Mother ends each school day close-by to the Child's school
and it is not impractical for her to be more active than she has
been to date. It is noted that when this family was intact, they
lived in a place convenient to SDL. After separation, Mother
chose to move to the Cocalico School District area, as she lived
with her parents there for a period.
-4-
564a
The scale tips to Father as the parent more able to provide
stability and continuity in the Child's family life. While both
parents have had a succession of paramours since they were an
intact family, Mother has had at least one paramour live in her
residence. In fact, Mother had her then-current paramour (yet
another SDL teacher) testify on her behalf at one of the recent
hearings, but by the time of the final hearing they were no
longer together.
In regard to community life, Father's home is located in a
traditional neighborhood of modestly sized homes on smaller lots.
There is a park nearby. The Child has the benefit of having
other children of similar age who live nearby, and he has
developed healthy neighborhood friendships.
Mother's home is situated in a less compacted neighborhood
in a rural town. The testimony suggested that most of the
Child's social activity outside of the home during Mother's
periods of physical custody occurs at the maternal grandparents'
home, which is about one mile from Mother's home.
5. The availab.ili ty of extended family.
Both sets of grandparents are substantially involved with
the Child's life.
Mother has several members of her extended fami],y (in
addition to her parents) who reside in the community and who are
involved in the Child's life. Notably, there is a great uncle
-5-
565a
and aunt who often transport the Child to school during Mother's
pe~iods of partial physical custody. The uncle is a retired SDL
educator; he testified that the time spent with the Child is
enjoyable, and no doubt the Child is enriched by this
relationship. At the same time, this travel time is time which
Mother has available to her to spend with the Child which she
chooses to forego for her convenience.
6. The child's sibling relationships,
The Child has a half-sibling in Mother's household, a
brother who is approximately twelve years of age. This Child
testified at the hearing. He·was mannerly and presented well.
He indicated he has a good relationship with the Child. However,
there are concerns that at times these two boys engage in "rough-
housing" that may be too much for the Child, and the Child has
sustained some injuries.
Father has another child who is approximately 4 years of age
and who resides in Iowa with her mother. Father has not
established a relationship with this child; he testified that he
only became aware of this child during the summer of 2015. At
present, the Child, like Father, has no relationship with this
half-sister to the Child.
-6-
566a
7. The well-reasoned preference of the child, based on the
child's maturity and judgment.
The Court did not interview the Child due to his young age.
Therefore, this factor is not relevant.
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.
The Court finds neither parent has actively attempted to
turn the Child against the other parent, at least in terms of
direct communication by a parent to the Child.
There are concerns, however, about certain patterns of
Mother's behavior which impede the Child's relationship with
Father. Mother is generally unwilling to change the physical
custody schedule if Father requests a reasonable modification.
Mother creates situations that frustrate Father, such as in
respect to Father's attempts to maintain telephone contact with
the Child while the Child is in Mother's physical custody.
Mother places the Child on a speaker phone while others are
present ih the room, which undermines Father's opportunity to
have a meaningful conversation with the Child. There was a
suggestion that the Child prefers to use a speaker phone or does
not know how to use a handset. Obviously, teaching the Child to
-7-
567a
use a handset and instructing him about the value of private
communication would take a few minutes.
Mother did not believe the Child needed counseling in the
past, and she did not participate when the Child was in
counseling.
In summary, Mother performs the minimal required interaction
with Father pursuant to the current Order. She refuses to work
with Father, Father attempts to work with Mother with regard to
the Child, but to no avail,
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 parents are capable of maintaining a loving
relatiopship with the Child, Both parents are able to provide
stability, consistency and a nurturing environment for the
Child's emotional needs. Both parents are keen on nurturing the
Child. However, Father has a more stable environment for the
Child than does Mother, Father has furnished his home and has
built his schedule around the Child's needs. His life revolves
around the Child during those times when the Child is in his
physical custody. By comparison, Mother has principal
responsibility for parenting her older child (whether by design
or by default in respect to that child's father). As proposed by
Mother, she would see herself primarily parenting two boys with
-8-
568a
two different fathers while maintaining a social and romantic
life for herself. While this would not be impossible and often
does occur, it is clear that at present Father is in a better
position than Mother to devote time and attention to the Child.
10. Which party is mo.re likely to attend to the daily
physical, emotional, developmental, educational and special needs
of the child.
As previously noted, the Child is presently in the first
grade. Both parents are educators and presumptively have had
more formal education about child development than the typical
parent. Mother is a more experienced parent· than Father, in that
she has raised her older son to age twelve substantially by
herself and by appearances she has done creditably well.
However, again, Father is 100% committed to meeting the Child's
needs in each of the specified respects except "special needs"
(as the Child has no identified "special needs" at this time).
11. The proximity of the residences of the parties.
The parents live approximately 35 to 45 minutes apart by
car, depending upon the amount of traffic. The parents are both
educators working within SDL. They work at locations within the
city of Lancaster which are relatively close to the school which
the Child attends. A year ago Mother agreed that the Child
remain in the School District of Lancaster. The basis of
Mother's modification petition is she now seeks ·primary physical
-9-
569a
custody and, as noted above, to enroll the Child in the school
district where she resides, which is the Cocalico School
District. The Cocalico School District is at the northern end of
Lancaster County. If the Child attends school in the Cocalico
School District, it will be burdensome or impossible for Father
to participate in any of the Child's in-school or after-school
school-related activities, including parent-teacher conferences.
By contrast, Mother, due to her employment with SDL, already is
close-by to the Child's current school and may readily attend
such activities should she so choose.
12. Each party's availability to care for .the child or
ability to make appropriate child-care arrangements.
Both parents are able to care for the Child. Both parents
have extended family who are available to care for the Child.
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.
sadly, there is substantial conflict between the parents.
,
Co-parenting had been ordered by this Court before, but it was
not completed. At this juncture it is hoped the parents will
move beyond their past animosity for the sake of the Child.
-10-
570a
14. The history of drug or alcohol abuse of a party or
member of a party's household.
There is no history of drug or alcohol abuse regarding
either parent.
15. The mental and physical condition of a party or member
of a party's household.
There is no mental or physical condition of a parent or a
member of the parent's household that presents a concern to the
Court in respect to the Child's safety or welfare.
16. Any other relevant factor.
Mother claims .she has concerns with Father's mental state
and for the Child when the Child is in Father's physical custody .
.
There is no evidence to suggest that these concerns are valid.
The Child sustained bruises while in Mother's care. Father
took the Child to a doctor. Father contacted the Lancaster
County Children and Youth Social Service Agency about the
injuries. The bruises were a result of typical childhood play.
Mother asserts this behavior on the part of Father is troubling.
While Father may have displayed some hyper-vigilance, _his
concerns are understandable and, without endorsing hyper-
vigilance, they are not atypical in a highly conflicted
relationship where child custody is at stake.
Mother claims that Father says inappropriate things about
her within the hearing range of the Child. The Court does not
-11-
571a
credit this testimony. While Father has at times said
inappropriate things to Mother (not necessarily in the presence
of the Child), Mother deliberately provokes Father in such a way
that frustrates him. Certainly, both parents need to avoid
verbal communication, non-verbal communication, and behavior
patterns which tend to denigrate the other parent or to undermine
the other parent's relationship with the Child. Father needs to
control his remarks; Mother needs to refrain from provoking
Father gratuitously.
Mother seeks primary physical custody of the Child no~ only
during both the school year but also during the school summer
vacation. She provided no credible rationale for limiting
Father's exposure to the Child year round. This arrangement
would have a severe impact upon the Child's time and, by
extension, his relationship with Father. It appears that Mother
wants primary physical custody of the Child because it would be
more convenient for her and the concomitant effect of
substantially diminishing the Child's contact with Father is of
little concern to her. The father of Mother's elder child is
nominally involved with that child, and sees his child about once
a month on a random schedule. Mother is apparently comfortable
with that arrangement, and she desires the same outcome for the
Child. When the parents were an intact family, Father was a
"father figure" to Mother's elder child. Upon the parties'
-12-
572a
separation, Mother stopped contact between Father and the half-
sibling. subsequently, there was one outing which included
Mother, Father, Mother's elder child, and the Child, which
apparently went well. However, Mother has not followed-up with
any opportunities to re-establish a relationship between Father
and her elder child for that child's benefit. Again, 'this
behavior raises concerns that Mother is inclined to diminish
Father's role in the Child's life.
While there are a number of considerations which lead the
Court to enter the Order expressed below, the Court agrees with
'Mother that it is not in the Child's best interest to continue
shuttling him back and forth between the parents' homes while
school is in session, given the distance between the parents'
homes and the resulting travel time. Th~ Child is now of an age
where he must embrace his education as his primary pursuit, with
a reasonable balance between school and family/community life.
At the same time, the Child has not yet reached the age where a
week-to-week shared physicaJ: custody schedule will serve his
needs; rather, as a first grade student and as Mother has
suggested, it is preferable for the Child to be settled in one
parent's home during the school week, so that he has stability
and consistency in his daily schedule. This reality places the
Court in the position of making a hard choice under less than
ideal circumstances (such as would be the case if the parents
-13-
573a
lived in close enough proximity to allow for frequent contact
with the Child by both parents regardless of where the Child was
spending his nights). Upon reflection, Father ·(and the
home/community setting Father offers) provide the Child with a
nominally more supportive environment than does Mother in her
home/community setting, and, further, given both parents1
employment in SDL, the opportunity for both parents to have
frequent contact with the Child during his waking hours is
enhanced if primary physical custody of the Child is awarded to
Father during the school year. similarly, given both parents
occupations, the Child should have the benefit of optimizing his
tii:ne with each parent during the school summer vacation, when a
week-to-week shared physical custody schedule is feasible and is
likely to benefit the Child's relationships not just with both
parents but with other family members.
ORDER
AND NOW, this 3rd day of March, 2016, the Court enters this
P.J.F.
Order in this child custody action regarding``~ (date
of birth May 1, 2009; hereinafter, the "Child"):
1. Father and Mother shall have shared legal custody of
the Child, such that each parent shall have the right to
participate in the major decisions affecting the Child,
including, but not limited to, medical, religious and educational
-14-
574a
decisions. Father and Mother shall provide to each other advance
information on a timely basis regarding the Child's school
programs and events and medical, dental, or other professional
appointments, as each may receive the same. Each parent shall
provide the other parent with advance information on a timely
basis regarding school programs, events, meetings and teacher
conferences involving the Child, as such information becomes
available.
2. Primary physical custody of the Child shall be with
Father during the school year.
3. Partial physical custody of the Child shall be with
Mother during the school year as follows:
(a) On alternating weekends, from Friday at 5:00 p.m.
until Sunday at 5:00 p.m., commencing Friday, March 4, 2016;
(b) Every Wednesday from after school until the
beginning of school on Thursday (or, if there is no school, until
5:00 p.m.); and,
(c) At such other times as the parents may agree.1
4. The Child shall continue to attend Buchanan Elementary
school in the school District of Lancaster.
l
It is understood that at the Child's age and developmental level,
frequent contact between the Child and both parents is to be encouraged. By
including this provision, it is the Court's hope that Mother will be afforded
frequent "as agreed" opportunities to spend time with the Child for activities
after school or on school holidays (whether or not such activities are school
related), It is noted that Father indicated in his testimony that he is
willing to facilitate such contacts.
-15-
575a
5. (a) During the summer break from school2, Father and
Mother shall have shared physical custody of the Child on an
alternating weekly basis, from Friday at 5:00 p.m. until the
following Friday at 5:00 p.m., with Mother having the first such
week.
(b) Each parent shall have the option of extending his
or her week to 5:00 p.m. on the Sunday following the end of such
parent's week twice during the school summer vacation. Each
parent shall provide the other parent written notice at least
thirty (30) days in advance of their intended dates for vacation
weeks. 3
6. Mother's Day and Father's Day:
Mother shall have physical custody of the Child on Mother's
Day, and Father shall have phys ica I custody of the Child on
Father's Day. The times for such holiday periods of physical
custody of the Child shall be from the evenirig before each
holiday (Saturday) at 6: oo· p.m. until the evening of each holiday
at 6:00 p.m.
z For purposes of this Order, the ''summer break from school" ia
defined aa beginning on the first Friday which is not less than three days
after the last day the Child is required to attend school and ending on the
last Friday which is not less that three days before the first day of school.
3 The purpose· of this provision is to afford each parent the
opportunity to travel and, potentially, to have a full week's vacation away
from home with the Child after allowing for such travel.
-16-
576a
7. Easter, Memorial Day, Independence Day and Labor Day:
(a) In even-numbered years, Father shall have physical
custody of the Child on Easter Sunday, Independence Day, and
Thanksgiving Day, and Mother shall have physical custody of the
Child on Memorial Day and Labor Day.
(b) In odd-numbered years, Mother shall have physical
custody of the Child on Easter Sunday, Independence Day, and
Thanksgiving Day, and Father shall have physical custody of the
Child on Memorial Day and Labor Day.
(c) The times for such periods of holiday physical
custody of the Child shall be from 6:00 p.m. the day before the
holiday until 8:00 p.m. bn the day of the holiday.
8. Christmas:
(a) In 2016, Mother shall have physical custody of the
Child from 2:00 p.m. on December 24 until 2:00 p.m. on December
25, and Father shall have physical custody of the Child from 2:00
p.m. December 25 until 2:00 p.m. on December 26.
(b) In 2017, the schedule shall reverse.
(c) For the balance of the Child's Christmas break,
Father shal_l have physical custody of the Child from December 26
to December 29, and Mother shall have physical custody of the
Child from December 29 until the day before the school session
begins in January.
-17-
577a
9. Holiday and special day periods of physical custody of
the Child shall have precedence over vacation periods and regular
periods of physical custody of the Child. Vacation periods of
physical custody of the Child shall have precedence over regular
periods of physical custody of the Child.
10. Unless the parents reach an alternative agreement, the
parent receiving physical custody of the Child shall provide the
transportation.
11. All custody exchanges shall occur at the Manheim
Township Police Department, 1840 Municipal Drive, Lancaster,
Pennsylvania 17601 or, when the Child is being dropped off or
picked up at the Child's school, at. the Child's school.
12. Each parent shall permit reasonable telephone access to
the Child by the other parent when the Child is in his or her
physical custody. The Child shall be afforded privacy during the
Child's telephone calls with a parent, and such calls shall not
take place by way of a speaker telephone.
13. Each parent shall accommodate the reasonable requests
of the other parent for alterations of any agreed upon schedule,
as the circumstances and the best interests of the Child require.
14. Each parent shall encourage the Child to love and
respect the other parent and shall not state, nor allow others to
state, in the presence of the Child, derogatory comments about
the other parent.
-18-
578a
15. Each parent shall encourage the Child to have
significant contacts with the other parent, and shall make
certain that the Child is ready on time for the transfer of
physical custody from one parent to another.
16. Each parent shall immediately notify the other by
telephone of any serious illness or other emergency that may
arise while the Child is in his.or her physical custody.
CONTEMPT
Mother's allegations that Father has willfully disobeyed the
current Custody Order are dismissed for failure to prove willful
disobedience required to establish a finding of contempt.
FUTURE RELOCATION
IF YOU ARE PROPOSING TO RELOCATE TO ANOTHER AREA WITH THE
CHILD WHO IS THE SUBJECT OF THIS ORDER, YOU MUST COMPLY WITH THE
REQUIREMENTS OF SECTION 5337 OF THE PENNSYLVANIA CUSTODY LAW
WHICH INCLUDES SENDING NOTICE OF YOUR PROPOSED MOVE TO EVERY
OTHER INDIVIDUAL WHO HAS CUSTODY RIGHTS TO THE CHILD .AND
PROVIDING SPECIFIC INFORMATION CONCERNING YOUR RELOCATION. THE
LAW MAY BE FOUND AT 23 Pa. C.S.A. § 5337. IF YOU DO NOT COMPLY
WITH THE NOTICE PROVISION OR PROVIDE THE REQUIRED INFORMATION,
THE COURT HAS THE ABILITY TO CONSIDER YOUR FAILURE AS AN ELEMENT
IN THE CUSTODY OR RELOCATION DECISION.
-19-
579a
BY THE COURT:
Attest:
Copies to:
M. Lucile Longo, Esquire
Honaman, Longo & Longo . ,· .
15 North Lime Street
Lancaster PA 17602 : ·.· .
. ... ·' "( ]'. t . ~ (°;/1,.:·. ::
Jozefa K. Jackson, Esquire
643 West Chestnut Street
Lancaster PA 17603
-20-
580a