J.L.G. v. M.S.P. ( 2015 )

J-S78001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.L.G., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
M.S.P.,
Appellee No. 1309 MDA 2014
Appeal from the Orders entered July 30, 2014,
in the Court of Common Pleas of Columbia County,
Civil Division, at No(s): 175 of 2003
BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 19, 2015
J.L.G. (“Mother”) appeals from two Orders entered on July 30, 2014,
one of which granted M.S.P.’s (“Father’s”) Petition to modify custody of the
parties’ son, B.G. (“Child”), born in March of 2002 (“the Custody Order”),
and the other of which granted Father’s Petition to find Mother in contempt
(“the Contempt Order”). We affirm.
The trial court set forth its findings of fact and the procedural history
of the case in its Opinion. See Trial Court Opinion, 7/30/14, at 1-5. We
adopt the trial court’s recitation for the purpose of this appeal. See id.
Relevant to this appeal, the custody of Child was established in an
Order entered in April 2008 (the “2008 Custody Order”), which awarded
Mother primary physical custody of Child throughout the school year, and
awarded Father partial physical custody of Child during the summer and at
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the Christmas holiday.1 On June 11, 2013, Mother, acting pro se, filed a
Petition to modify the 2008 Custody Order to reduce Father’s summertime
partial custody to two weeks, so that Child could participate in baseball,
football, and other sports. The trial court appointed a special master, who
held a custody conference in which both parties participated. On July 29,
2013, the special master filed his Recommendations, recommending that (1)
the provisions of the 2008 Custody Order remain in effect; (2) that Mother
purchase an airline ticket for Child to travel to Father’s home for the
remainder of the summer; (3) that Father reimburse Mother for part of the
cost of the ticket; and (4) that Mother contribute to future travel costs for
Child to see Father. On July 29, 2013, the trial court approved the special
master’s Recommendations as an interim Order.
On August 12, 2013, Mother filed Exceptions to the Recommendations
on the basis that (1) Father had not reimbursed her for half of the cost of
the replacement airline ticket; (2) she should not have to contribute to
future travel costs for Child to see Father because she had voluntarily agreed
to a reduction of Father’s child support payments; and (3) unless Father’s
summertime custody was shortened, Child would miss football equipment
handouts and the beginning of football practice.
1
Pursuant to the 2008 Custody Order, Father was awarded partial physical
summertime custody of Child, commencing the second Saturday after Child’s
school concludes, and continuing until one full week before Child’s school
resumes in the Fall.
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On January 6, 2014, Father filed a Petition to modify custody, seeking
primary physical custody of Child, and a Petition for contempt against
Mother with regard to her interference with his Summer 2013 partial custody
of Child.
After holding a conference with the parties, the trial court issued an
interim custody Order on May 9, 2014. On July 28, 2014, the trial court held
a hearing on Mother’s Exceptions, Father’s Petition to modify custody, and
Father’s Petition for contempt of Mother. On July 30, 2014, the trial court
entered an Opinion and three separate Orders: an Order denying Mother’s
Exceptions to the special master’s Recommendations; the Custody Order,
which awarded Father primary physical custody of Child during the school
year, and Mother partial physical custody during the summer and Christmas
breaks; and the Contempt Order, which found Mother in contempt of the
2008 Custody Order concerning Father’s custody time in the summer of
2013, and directing Mother to pay Father $418 toward his lost plane fare for
Child.
On August 5, 2014, Mother filed a Notice of Appeal, challenging the
Custody Order and the Contempt Order, and a Statement of Matters
Complained of on Appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
In her brief on appeal, Mother raises the following issues:
A. [Whether] the trial court erred as a matter of law and/or
abused its discretion in finding that [] [C]hild was
undereducated and grossly underachieving in school, as the
record is devoid of any specific evidence or testimony [that
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C]hild is undereducated or grossly [under]achieving in
school[?]
B. [Whether] the trial court erred as a matter of law and/or
abused its discretion in finding that the custody factors under
23 Pa.C.S.A. § 5328(a), specifically factors 1, 4, 5, 6, 7, 8,
10, and 13, are in favor of Father, when the evidence and
testimony of record do not support such a conclusion[?]
C. [Whether] the trial court erred as a matter of law and/or
abused its discretion in finding that Mother was in contempt
of the court’s [April 28, 2008 Custody Order?]
Mother’s Brief at 5 (capitalization omitted).
In custody cases, our standard of review 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.
Id. at 443 (citation omitted).
The discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
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Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
With any custody case decided under the Child Custody Act (“the
Act”), 23 Pa.C.S.A. §§ 5321 to 5340, the paramount concern is the best
interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338.2 Section 5338 of
the Act provides that, upon petition, a trial court may modify a custody
order if it serves the best interests of the child. See 23 Pa.C.S.A.
§ 5338. Section 5328(a) of the Act sets forth the best interests factors that
the trial court must consider. See 23 Pa.C.S.A. § 5328(a); see also E.D. v.
M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011).
Section 5323 of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
2
As the custody trial in this matter was held in July of 2014, the Act is
applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding
that, if the custody evidentiary proceeding commences on or after the
effective date of the Act, i.e., January 24, 2011, the provisions of the Act
apply).
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(7) Sole legal custody.
23 Pa.C.S.A. § 5323.
Section 5328 of the Act enumerates sixteen factors that a trial court
must consider before awarding any form of custody:
§ 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.
(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.
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(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with
one another. A party’s effort to protect a child from
abuse by another party is not evidence of unwillingness
or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).3
In her brief, Mother contends that the trial court erred by finding that
Child was “grossly underachieving” in school and was “undereducated,”
asserting that these findings are unreasonable and unsupported by the
record. Mother’s Brief at 11. Mother asserts that, because Father filed the
3
Effective January 1, 2014, the Act was amended to include an additional
factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child
abuse and involvement with child protective services). Although this
subsection was applicable at the time of the custody trial in the present
matter, the trial court found that there was no credible evidence of any
abuse, and, thus, there was no evidence that would have required the
court’s further consideration of this factor. See Trial Court Opinion,
7/30/14, at 6.
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Petition to modify custody, it was his burden to demonstrate that it was in
Child’s best interest to modify the existing custody arrangement. Id.
Mother contends that Father’s production of Child’s report cards, and Child’s
acknowledgment that he could perform better in school, does not suffice to
meet Father’s burden. Id. at 12-13. While Mother acknowledges that Child
may be “underachieving somewhat,” she disputes the trial court’s
determination that he is “grossly underachieving.” Id. at 13. Mother points
out that Child’s report card shows him to be an average student, and
contends that there is no evidence that he is capable of achieving anything
better than a “C” in his classes. Id.
Mother also disputes the trial court’s determination that Child is
“undereducated,” claiming that there is no evidence in the record that the
Bloomsburg School District is not an appropriate school district, or that the
Tahoma School District is a better or more appropriate school district for
Child. Id. at 14. Mother asserts that Child receives assistance from Mother
and her wife with his school work, and attends tutoring after school. Id.
Here, Mother challenges factual determinations made by the trial
court. As noted previously, our role does not include making independent
factual determinations, and we must accept the findings of the trial court
that are supported by competent evidence of record. See C.R.F., 45 A.3d at
443. Our review of the record discloses that Child’s grades at the time of
the custody hearing included a 65, 69, 70 and 75, with a final grade point
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average of 74.8, and that he had not been turning in his homework or
making a consistent effort in school. See N.T., 7/28/14, at 13-14, 33.
Father, Mother and Child each acknowledged that Child is underperforming.
See id. at 9, 34 (wherein Child acknowledged that he is underperforming,
but indicated that when the custody dispute is over, he will “definitely” be
able to do better in school); id. at 49-50 (wherein Father testified that
Child’s grades for the last several years have been “low average or just
barely passing”); id. at 151 (wherein Mother acknowledged that Child could
“absolutely” do better that a 74 grade point average). Additionally, following
an in camera interview of Child, the trial court found Child to be “smart,”
“witty” and “sharp.” See id. at 9, 13, 37; see also Trial Court Opinion,
7/30/14, at 4 ¶¶ 10, 11 (wherein the trial court observed that Child is “very
articulate and mentally quick and very insightful[,]” and noted that he
“speaks in a language that seems much older than his age and emotional
maturity.”).
Because our review of the record reveals that the trial court’s
determination that Child was underperforming in school, while enrolled in
the Bloomsburg School District, is supported by competent evidence, we will
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not disturb such determination on appeal.4
In her second issue, Mother contends that the trial court’s findings
with regard to the custody factors under 23 Pa.C.S.A. § 5328(a) constitute
“mere conclusions without any analysis,” and are not supported by the
record. Mother’s Brief at 16. Specifically, Mother asserts that the trial court
erred in finding that factors 1, 4, 5, 6, 7, 8, 10, and 13 favored Father, when
the evidence and testimony of record do not support such a conclusion. Id.
at 17-27. While Mother concedes that the trial court addressed each of the
5328(a) factors in its Opinion, she claims that its custody determination
must be reversed because it did not provide sufficient factual analysis of
each factor. Id. at 28.
The Act requires only that the trial court articulate the reasons for its
custody decision in open court or in a written opinion or order taking into
consideration the enumerated factors. See 23 Pa.C.S.A. §§ 5323(d),
5328(a); see also M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013).
4
Mother also points out that Child’s social and educational abilities were not
observed or evaluated by a psychologist. Mother’s Brief at 11. Mother
claims that, despite Father’s evidentiary burden, he failed to produce any of
Child’s standardized test results, or present Child’s guidance counselor and
teachers, who could have opined as to Child’s educational abilities and/or
limitations, and whether Child was working to his potential. Id. at 11-12.
We conclude that this argument lacks merit, as all parties, including Mother,
agreed that Child was underperforming. Moreover, the question of whether
Child was underperforming was not so complex an issue that it was beyond
the knowledge, intelligence, and experience of the ordinary layman so as to
necessitate expert opinion testimony. See Commonwealth v. Begley,
(stating that “[t]he purpose of expert testimony is to assist the factfinder in
grasping complex issues not within the knowledge, intelligence, and
experience of the ordinary layman.”).
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Contrary to Mother’s argument, “there is no required amount of detail for
the trial court’s explanation; all that is required is that the enumerated
factors are considered and that the custody decision is based on those
considerations.” M.J.M., 63 A.3d at 336.
In its Opinion, the trial court set forth the factors enumerated in
section 5328(a), explained how it weighed each factor, and then discussed
the reasons that guided its decision regarding Child’s custody. See Trial
Court Opinion, 7/28/14, at 6-9. After a careful review of the entire record,
we find competent evidence to support the trial court’s factual findings
regarding the statutory factors challenged by Mother. Accordingly, we will
not disturb them, and affirm as to this issue based on the trial court’s
rationale. See id.In her third issue, Mother challenges the Contempt Order, asserting
that the evidence of record does not establish that she willfully violated the
2008 Custody Order. Mother’s Brief at 29. Rather, Mother contends, the
evidence shows that Child refused to go to the State of Washington for the
start of his 2013 summer vacation with Father because he overheard
Mother’s wife indicate that they were going to the beach, and he did not
want to “miss out.” Id. Mother claims that Child locked himself in his
bedroom and refused to come out until after the plane had departed. Id.When considering an appeal from an order holding a party in contempt
for failure to comply with a trial court order, our scope of review is narrow:
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we will reverse only upon a showing that the court abused its discretion.
See Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013). The trial
court abuses its discretion if it misapplies the law or exercises its discretion
in a manner lacking reason. See Hopkins v. Byes, 954 A.2d 654, 655 (Pa.
Super. 2008). This Court must place great reliance on the sound discretion
of the trial judge when reviewing an order of contempt. See G.A. v. D.L.,
72 A.3d 264, 269 (Pa. Super. 2013) (stating that “each court is the exclusive
judge of contempts against its process.”).
To sustain a finding of civil contempt, the complainant must prove
certain distinct elements by a preponderance of the evidence: (1) that the
contemnor had notice of the specific order which was allegedly disobeyed;
(2) that the act constituting the contemnor’s violation was volitional; and (3)
that the contemnor acted with wrongful intent. See Stahl v. Redcay, 897
A.2d 478, 489 (Pa. Super. 2006).
In the instant case, Mother does not contend that she was unaware of
the 2008 Custody Order or that her noncompliance was not volitional.
Rather, she contends that she lacked wrongful intent. Nevertheless, the trial
court found as follows:
In the summer of 2013, Mother denied Father his summer
custody with [Child], essentially saying that [Child] did not want
to go for various reasons, including not wanting to miss football
practice. In fact, Mother had arranged a beach trip for herself
and others with [Child], causing him to balk at the Washington
visit. It was ordered that [Child] go to Washington to visit []
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[F]ather. The visit was 2½ weeks instead of the 6-7 weeks that
it would have been.
Trial Court Opinion, 7/30/14, at 3, ¶ 7.
The trial court explained the reasons for finding Mother in civil
contempt of the 2008 Custody Order:
There was clearly, at least, circumstantial evidence that []
[M]other kept [Child] from [F]ather’s partial custody times.
Clearly, she was not able to control her 11-12 year [old] son and
get him out the door and on the way to [] [F]ather’s [home].
When he got to [] [F]ather’s place, he enjoyed his time.
Trial Court Opinion, 8/11/14, at 2.
Based on our review of the record, we cannot conclude that the trial
court abused its discretion, misapplied the law, or exercised its discretion in
a manner lacking reason. Therefore, we affirm the trial court’s Contempt
Order.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2015
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JENNIFER L. GUISE, IN THE COURT OF COMMON
PLEAS FOR THE 26TH JUDICIAL
Plaintiff DISTRICT, COLUMBIA COUNTY
vs BRANCH, PENNSYLVANIA
CIVIL ACTION - CUSTODY
MICHAEL S. PARSON,
Defendant
CASE NO: 175 of 2003
J APPEARANCES:
GREGARY T. MORO, ESQUIRE, Attorney for Plaintiff tiN 6DX£5 %iJ) /
NOAH NAPA/2sTEd( -', ESQUIRE, Attorney for Defendant 5 I.J , I
'7 301 IL-f {(: 15 J.rrL
July 28, 2014. JAMES, J.
This is a custody case involving one
2 2 born March 13, 2002. Defendant (Father) filed a
Modification Petition. Plaintiff (Mother) had filed Exception to
a Special Master's report. She was excepting to transportation
costs and wishes to alter Father's summer custody schedule.
Father had also filed a contempt petition. All three matters
were heard by this court at the same hearing. Mother's
Exceptions and Father's contempt petition are being addressed in
separate orders. In this modification petition, Father is
seeking primary physical custody.
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A hearing was held on all issues on July 28, 2014.
Plaintiff Mother testified on her own behalf. She called the
tMo"'h~r 5 5eO()~e It;' IJ,e.e. . _
following witnesses: her spouse, iJ!III. "v
of M(Jf~l":S Sf(}V.s-€!
spouse was presented through a stipulated offer of proof
1\
Defendant Father testified on his own behalf. He called the
C' rafh-ers WI+~ II~I' IIA. P. I')
following witnesses: his wife and his parents,
t'v."P. ,,) II ~. Po "
and Amy Parson's mother was
presented through a stipulated offer of proof.
Ghil~
£ 7 testified. Each party offered numerous exhibits.
FINDINGS OF FACT
The court finds that the following facts have been proven:
1. Plaint 1 ff ("Mother") • resides in
Bloomsburg, Columbia County , Pennsylvania. She lives in a
residential area in one-half of a duplex. The home is clean
and decent, with three bedrooms. She rl-kVjeo~Ae,re with her
spouse of thry I,xears, E • ~~d . _ . . .. f 6 year old
daughter CCi d with 3 Chll The children have their
own rooms. It is a clearly sufficient home for the
children. She is age 35 and in good health. She has worked
as a State Prison corrections officer feor l 7.vears, lO-p.m.
'h d I AA~ih,(, SPDII,SE:- ,
to 6 : 0 0 a.m. on a rotatlng sc e u e. " ' . . lS an on-Ilne
~~}lR~eand supervises the children when Mother works.
WW· ...... and Mother have been together for 16 years, except
for about 2 years when Mother was in the service
2. Defendant ("Father") age 32, who
resides in Maple Valley, Washington, which is located near
Seattle, Washington. He and his wife own the home which is
located in a rural area and is clearly sufficient for the
child. Father works for a family owned company as a truck
dispatcher. He recently completed a bachelor's degree in
American Studies. His working aotrs are 7 a .m. to 3: 30
p.m. He lives with his wife, E.·.· , age 35, whom he
married in 2004. E has been a kindergarten teacher for
A.P.
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over 9 years. She has a master's degree and is ELS
certified.
3. The parties were never married. Father is from Pittsburgh
and Mother is from Bloomsburg. They met while in the
military service in Washington State. When Mother got
pregnant, she received a medical discharge and moved back to
Bloomsburg. Father was shortly thereafter deployed to Iraq
for a year. When he returned home, he received an honorable
discharge but stayed in Washington where he married ~and
bought a house. A,P-
4. The parties are the parents o f " , ~e~h~i~l'd~,r,,'~~~~~
_ _ born March 13, 2002. a.:after 4 i,l
was born and
Father returned from Iraq, ~ spenp~]jout 5 months in
Washington (or the Pittsburgh area - paternal grandparents'
home) wirfFather and the rest of the time with Mother.
When Ie." _ 2 started school, Father essentially had custody
in the summer and at Christmas.
chi/t:ls
5. Paternal grandparents have been very active in
life helping witOdlogistics and have had significant
contact with • C '. , particularly during the Iraq years
and at Christmases. Father's wife's family is largely in
Washington and provides a good support system.
6. Mother is estranged from her parents.
7. In the summer c~f/d2013, Mother denied Father h~ 'ylummer
custody with' I . , essentially saying that •
not want to go for various reasons, including not wanting
'5'_
did
to miss football practice. In fact, MotrCll'll:ad arranged a
beach trip for herself and others with It '... , causing him
t'442 Pa.Super. 263, 659 A.2d 575 (1995). The court will consider
all relevant factors that could affect a child's well being.
Andrews v. Andrews, 411 Pa.Super. 286, 289, 601 A.2d 352, 353
(1991) .
The legislature has given some guidelines for determining
what custody arrangement is in the best interest of the
children. 23 Pa.C.S. § 5303(a) provides the "general rule":
(1) In making an order for custody or partial custody, the
court shall consider the preference of the child as
well as any other factor that legitimately impacts the
child's physical, intellectual and emotional well
being.
(2) In making an order for custody, partial custody or
visitation to either parent, the court shall consider,
among other factors, which parent is more likely to
encourage, permit and allow frequent and continuing
contact and physical access between the noncustodial
parent and the child.
(3) The court shall consider each parent and household
member's present and past violent or abusive conduct
that may include, but is not limited to, abusive
conduct as defined under the act of October 7, 1976
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(P.L. 1090, No. 218), known as the Protection From
Abuse Act.
The legislature has also set for specific consideration and
factors to take into consideration in making custody
determinations:
23 Pa.C.S.A. § 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. (Here, the court finds that
Father is more likely to cooperate and give more
custody time.)
(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. (There is no credible evidence of abuse. Any
implication of abuse was fabricated.)
(3) The parental duties performed by each party
on behalf of the child. (Both parties have performed
parental duties on behalf of the child.)
(4) The need for stability and continuity in the
child's education, family life and community life.
(Father's ability to provide a stable family life and
stable education for the child is superior to Mother's
ability. )
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(5) The availability of extended family.
(Father's family is particularly involved and
available.)
(6) The child's sibling relationships. (The minor
child has a decent relations?ip with his step-sister, ~ .
However, they attend different schools and
have significantly different social lives. With the
ordered schedule, their bond should continue and
should not be weakened.)
(7) The well-reasoned preference of the child,
based on the child's maturity and judgment. (The child
has not expressed a mature judgment or preference,
except that he wanted the families closer to each
other and wanted to attend Bloomsburg schools.
However, there is no guarantee that he will continue
to attend Bloomsburg schools.)
(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. (Mother has
at least passively attempted to alienate the child by
trying to limit contact.)
(9) Which party is more likely to maintain a
loving, stable, consistent and nurturing relationship
with the child adequate for the child's emotional
needs. (Both parties are good, interested, and
nurturing parents, except to the extent that their
lack of communication negatively impacts the child.)
10) Which party is more likely to attend to the
daily physical, emotional, developmental, educational
and special needs of the child. (Both parties are
capable, although Father has the superior ability in
this category.)
(11) The proximity of the residences of the
parties. (This is the most difficult aspect of this
case, as recognized by the minor child. The distance
between the parties was not occasioned by either party
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to thwart the custody rights of the other.)
(12) Each party's availability to care for the
child or ability to make appropriate child-care
arrangements. (Both parties have this capability.)
(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. (The parties do not communicate. But
the Father has the edge in that Mother puts up more
barriers to communication.)
(14) The history of drug or alcohol abuse of a
party or member of a party's household. (No evidence
on this issue.)
(15) The mental and physical condition of a party
or member of a party's household. (The parties'
significant others are stable and reasonable. )
(16) Any other relevant factor.
(b) Gender neutral. --In making a determination under
subsection (a), no party shall receive preference
based upon gender in any award granted under this
chapter. (This decision is being made on a gender
neutral basis.)
After consideration of all of the relevant factors,
the court finds that the best interests of the minor child would
be served by Father having primary physical custody of the minor
child, with Mother to have custody almost all summer, Christmas
vacation, and other times that she is available. There are
several significant reasons that guide this decision. First,
particularly with the distance, Father will more likely allow
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and encourage Mother to have more often and continuing contact.
Mother would tend to try to alienate the child's affections for
his Father. Second and very importantly, the minor child is
woefully underachieving in school. Father, along with his wife,
will aggressively attend to the child's educational needs and
help him to achieve his potential. If he stays where he has
been during the school year, he will likely become
undereducated. (All the time spent on video and computer games
is not helpful.)
Third, there is real concern for the supervision of the
minor child. His relationship or potential relationship with a
14 year old girl is troublesome. This is particularly true in
light of the minor child's mature language and still very young
age. He talks like a much older teen, while showing no signs of
similar emotional maturity.
The distance between the parties is a maj or obstacle, but
there is no solution except to grant off school time to Mother
and school time to Father. Thus, the following order.
~.
HONORABLE THOMAS A. JAMES, JR., J.
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