M.K. v. R.L.K., Jr. Appeal of: M.K. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.K. IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
R.L.K., JR.
APPEAL OF: M.K.
No. 477 MDA 2017
Appeal from the Order Entered February 15, 2017
in the Court of Common Pleas of Dauphin County
Civil Division at No.: 2016-CV-3466-CU
BEFORE: OTT, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 24, 2017
M.K. (Mother) appeals the order of the Court of Common Pleas of
Dauphin County (trial court) entered February 15, 2017, that granted primary
physical custody of the parties’ children, M.K. (born 12/09), E.K. (born 5/14),
and A.K. (born 6/16) (Children), to Mother and supervised visitation to R.L.K.
(Father). The order denies permission for Mother to relocate to Utah and
grants permission to Father to relocate to Franklin County, Pennsylvania. The
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* Retired Senior Judge assigned to the Superior Court.
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order also provides that either party may apply to modify the order after the
resolution of certain criminal charges pending against Father.1 We affirm.
____________________________________________
1In final paragraph in the order complained of, paragraph 12, the trial
court states:
12. When Father’s criminal charges are resolved, either
party may contact the [c]ourt to schedule a status conference.
(Trial Court Order, 2/15/17, at ¶ 12).
This sentence indicates that the trial court anticipates the possibility of
further proceedings, raising the question of whether the order is final and
appealable. We find that it is.
This Court addressed the question of the finality of an order where the
trial court enters an order of custody and anticipates a review of its order only
upon the application of one of the parties in Parker v. MacDonald, 496 A.2d
1244 (Pa. Super. 1985). In Parker, we explained:
We agree with appellee that the current posture of this case would
prevent us from entertaining this appeal if it were an interlocutory
order. However, we are unable to conclude that the Order of
November 14, 1985, lacks finality. Concededly, the lower court by
its own terms provided for review of its order in July, 1985, but
only upon application for such review by either party. This case
was not scheduled for subsequent review by the lower court.
Rather, the court below encouraged the amicable resolution of the
custody of their son by the parties themselves. If the parties
reached an agreement, it is possible that further court
intervention would not be required. Thus, the Order of November
14, 1984, effectively ended the litigation, and constituted a final
order appropriate for review.
Moreover, the challenged Order disposed of the parties’ rights to
custody during the period between November, 1984, and July,
1985, and thereafter unless and until a petition for re-examination
of custody is filed by one of the parties. We conclude that the
Order has sufficient aspects of finality to be appealable. The
motion to quash is therefore denied.
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The trial court recites the factual details of this case in its Memorandum
Opinion filed February 15, 2017, and in its Opinion Pursuant to Pa.R.A.P.
1925(a) entered April 17, 2017. We relate the relevant procedural details of
this case in our discussion below.
After holding hearings on September 6, 2017, January 6, 2017, and
January 19, 2017, the trial court entered the order appealed from on February
15, 2017, accompanied by a memorandum in which it explained its reasoning
underlying the order. Mother filed her notice of appeal and concise statement
of errors complained of on appeal on March 17, 2017. See Pa.R.A.P.
1925(a)(2)(i). On April 17, 2017, in response to Mother’s notice of appeal,
the trial court entered an opinion pursuant to Pa.R.A.P. 1925(a). In that
opinion, the trial court addresses Mother’s issues raised on appeal and refers
the reader to its memorandum of February 15, 2017.
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496 A.2d, at 1247 (emphasis in original).
This Court affirmed Parker in G.B. v. M.M.B., 670 A.2d 714 (Pa. Super.
1996), where, referring to Parker, we stated:
We concluded that the language of the trial court’s order merely
made explicit what is always implicit in a custody order-the
availability of modification upon a proper showing by the parties-
and hence that the finality of the order, which otherwise
constituted a complete resolution of the parties’ dispute, was not
vitiated.
670 A.2d at 718 (citation omitted).
The facts in the case before us are similar to Parker and G.B. in that
the order will stand as written unless one of the parties applies to the trial
court for a modification; as such, it is final and appealable.
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Mother presents ten questions with eight sub-issues spanning two pages
for us to review. (See Mother’s Brief, at 5-6). This is not the form of the
statement of questions involved contemplated by Pa.R.A.P. 2116, but it is an
improvement over the twelve pages, eleven issues, and ten sub-issues, in
Mother’s Rule 1925(b) statement. We quote the trial court, with approval, on
the question of which issues are fairly incorporated in Mother’s concise
statement, and adopt the court’s analysis of which issues should be
addressed:
[Mother] filed a notice of appeal on March 17, 2017—the
last possible day in which the notice could be filed and considered
timely. Simultaneously, [Mother] filed a Statement of Errors
Complained of on Appeal (hereinafter ‘Statement’) pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).
However, this [c]ourt will not classify the Statement as being
‘concise’ as required by the rules as it consists of eleven (11) main
issues, ten (10) sub-issues, and spans a total of twelve (12)
pages. In addition to the overwhelming length, the Statement is
riddled with opinions and characterizations by counsel that are
inappropriate, irrelevant, and some completely inaccurate. As
much as this [c]ourt would like to find that [Mother] has waived
her issues for her failure to comply with the ‘concise’ requirement,
it cannot in good conscience do so because once stripped of
extraneous comments, opinions and extra verbiage, the issues are
mostly discernable.
After removing counsel’s extraneous comments, opinions,
and extra verbiage, this [c]ourt has discerned the following issues
that we will address:
1. The [c]ourt erred by failing to address the custody factors
enumerated at 23 Pa.C.S.A. § 5328(a).
2. The [c]ourt erred in disregarding the testimony of the agreed-
upon expert, Dr. Laurie Pittman.
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3. The [c]ourt erred by granting Father’s request for relocation
without considering any of the relocation factors enumerated at
23 Pa.C.S.A. § 5337.
4. The [c]ourt erred in awarding Paternal Grandparents visitation
rights.
5. The [c]ourt erred by depriving Mother of her constitutional right
to travel.
(Trial Court Opinion, 4/17/17, at 1-2) (footnote omitted).
Our scope and 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.
C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
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 cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).
The primary concern in any custody case is the best interests of the
child. “The best interests standard, decided on a case-by-case basis,
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considers all factors which 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).
Additionally,
[t]he parties cannot dictate the amount of weight the trial court
places on evidence. Rather, the paramount concern of the trial
court is the best interest of the child. Appellate interference is
unwarranted if the trial court’s consideration of the best interest
of the child was careful and thorough, and we are unable to find
any abuse of discretion.
S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (citation omitted).
We will affirm the trial court largely on the strength of its Memorandum
and Pa.R.A.P. 1925(a) Opinion entered on February 17, 2017, and April 18,
2017, respectively. We will, however rely on our own analysis of the question
of whether the trial court was required, in these particulars circumstances, to
address each of the sixteen custody factors delineated in 23 Pa.C.S. §
5328(a). We find that it was not.
Mother and Father were married in Utah. They were living in Halifax,
Dauphin County, Pennsylvania, when Mother initiated this case by filing a
complaint for custody on May 5, 2016. Mother also filed a notice of relocation
to Utah to which Father filed a counter-affidavit and his own notice of
relocation to Franklin County, Pennsylvania, to which Mother filed a counter-
affidavit. The trial court entered an agreed custody order in this matter on
June 13, 2016, following a pre-trial conference. That order awarded Mother
primary physical custody and awarded Father supervised visitation. The
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parties shared legal custody. No one made an objection to this order and no
one appealed from it. Mother filed a request for a full hearing on relocation
on July 12, 2016, that the trial court scheduled for September 6, 2016.
Mother filed an emergency petition for special relief on August 2, 2016,
in which she asked the trial court to, “enter an Order suspending Father’s
rights to supervised visitation until resolution of the pending criminal matter.”
(Mother’s Petition for Special Relief, at 4 (unpaginated)). Mother sought to
suspend Father’s supervised visitation while the police investigated Mother’s
allegations that Father had acted inappropriately around the Children,
allegations that had been investigated and deemed unfounded by Dauphin
County Children and Youth Services. Mother filed a petition for protection
from abuse (PFA) on August 4, 2016, that she based on the allegations in her
petition for special relief. The trial court denied Mother’s petition for special
relief on August 5, 2106. The trial court held hearings on Mother’s PFA petition
and the two relocation requests on September 6, 2016, January 6, 2017, and
January 19, 2017. On February 17, 2017, the trial court entered the order
complained of in which it denied Mother’s request for relocation, approved
Father’s request, and resolved Mother’s PFA by defining Father’s supervised
visitation.
The order of February 17, 2017 provides that the parties shall share
legal custody, Mother shall have primary physical custody and that Father
shall have supervised visitation two days per week at a specified location.
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According to the trial court, “The February 15, 2017 Order did not alter the
custody that had been previously entered aside from the location of the
supervised visitation - Mother was provided primary custody, and Father
supervised visitation at ABC House at least once per week – pending resolution
of the criminal charges.” (Trial Court Pa.R.A.P. 1925(a) Opinion, 4/18/17, at
4). Thus, in addressing the question of custody, the order denies Mother’s
PFA and preserves the status quo ante established when the trial court entered
the original custody order on June 13, 2016, with the exception of the
subsidiary issue of how Father is to exercise supervised visitation. The trial
court did not make any award of custody that did not already exist. In its
Memorandum in support of its order entered February 17, 2017, the trial court
addresses the relocation factors in section 23 Pa.C.S.A. §5337(h), but did not
discuss the sixteen custody factors listed in 23 Pa.C.S.A. §5328(a). Mother
claims that this was error. We disagree.
This Court has said “[A] trial court must apply the § 5328(a) factors and
issue a written explanation of its decision when it orders any of the seven
forms of custody provided for by the [Child Custody] Act.” S.W.D. v. S.A.R.,
96 A.3d 396, 402 (Pa. Super. 2014). The seven forms of custody provided
for by the Act are:
(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 is in the best interest of the child:
(b)
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(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5328(b).
In her brief, Mother claims, “The law clearly requires the [trial]
court to consider all Custody Factors when ordering any form of custody;
no change is required to trigger the court’s obligation to place it’s
reasoning on the record.” (Mother’s Brief, at 12-13). Mother clearly
misreads our law, which requires a trial court to consider the custody
factors only when awarding any of the seven forms of custody listed
above. In this case, the trial court addressed only the subsidiary issue
of Father’s supervised visitation.
This Court addressed a similar set of facts in M.O. v. J.T.R., 85
A.3d 1058 (Pa. Super. 2014). In M.O., the father filed a petition for
modification. At a pre-trial conference, the parties resolved all the
issues except a question relating to the father’s summer visitation. The
trial court held a hearing in which the parties addressed that one
subsidiary issue, after which the trial court issued an order of custody
without discussing the sixteen custody factors. Mother appealed,
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claiming that it was error not to address those issues. This Court
disagreed, stating:
Following the hearing in this case, the trial court made no award
of custody. The court was not deciding physical or legal custody,
nor even changing the amount of custodial time that either party
had with the Children. Rather, the trial court addressed a
subsidiary issue: whether Father was required to be off from work
while the Children stayed with him for a portion of the summer.
After hearing the evidence that the parties presented limited to
that sole issue, the trial court decided that Father could work
during the three weeks in question. While the court’s ruling
modified its prior order, it did not change the underlying award of
custody. Therefore, under the facts of this case, Section 5328(a)
was not implicated directly.
Id. at 1062-63.
The case before us is similar to M.O. Here, the parties agreed to an
order of custody at a pre-trial conference and the trial court entered an order
based on that agreement. By filing her PFA, Mother sought to modify the
order by restricting Father’s visitation. When it entered the order complained
of, the trial court did not change the underlying award of custody, and did not
award any form of custody that either party did not enjoy prior to the
relocation/PFA hearing; it simply resolved the subsidiary issue of Father’s
supervised visitation and thus section 5328(a) was not implicated directly.
M.O., supra. 2
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2 We are aware of this Court’s opinion in A.V. v. S.T., 87 A.3d 818 (Pa. Super.
2014). However, A.V. involved a direct modification of the “type” of custody
(from shared physical to partial physical custody) and substantially reduced
Father’s time with the children, and thus we find it distinguishable.
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As to the remaining issues, we have carefully reviewed the trial court’s
Memorandum Opinion filed February 15, 2017, and in its Opinion Pursuant to
Pa.R.A.P. 1925(a) entered April 17, 2017, and we find them, taken together,
to be a correct and complete analysis of the remaining issues Mother raises
on appeal. Accordingly, we affirm the order of the trial court entered February
15, 2017, on the basis of those opinions.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2017
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Circulated 08/14/2017 05:11 PM
IN THE COURT OF COMMON PLEAS OF
Plaintiff DAUPHIN COUNTY, PENNSYLVANIA
v. NO. 2016 CV 3466 CU
. .
---- ---- - ~ CIVIL ACTION - LAW
Defendant IN CUSTODY
MEMORANDUM OPINIOfrJ - · ,:(i ~
The instant matter was initiated on May 5, 2016, uponjthe filing of a Complaint~. j
Custody by Plaintiff (hereinafter "Mother") naming Defendant-
- (hereinafter "Father"), and seeking primary physical custody of their minor
children, M.K. (12/2009), E.K. (5/2014), and AK. (6/2016)1.
On May 20, 2016, Father filed a Counter-Affidavit Regarding Relocation objecting
to Mother's proposed relocation, and requested a hearing prior to allowing the children to
relocate. Father then filed a Notice of Proposed Relocation on May 26, 2016, requesting
permission for the children to relocate to Waynesboro, Franklin County, Pennsylvania
where he and paternal grandparents currently reside. Thereafter, Mother filed a Motion
for Full Expedited Hearing on Relocation, as well as a Counter-Affidavit Regarding
I
Relocating objecting to Father's proposed relocation. This Court schedulJd a pretrial
)
I
conference for June 13, 2016.
Prior to the filing of the Complaint, a referral for possible sexual abuse of the
children was made to Dauphin County Children and Youth Services (hereinafter
"DCCYS"). On April 14, 2016, DCCYS Caseworker Autumn Ricker (hereinafter
"Caseworker. Ricker") and Trooper Raschard Buie (hereinafter "Trooper Buie")
1 AK. was born during the pendency of this action. He was not originally named in the Complaint as it
was filed prior to his birth.
Page 1 of 23
interviewed Mother at her residence, who stated that she knew Father had been
diagnosed with Obsessive Compulsive Disorder (hereinafter "OCD"), but after the birth of
M.K. in 2009, Father began to act "very weird". In addition, she stated the following:
[T]hat as a result she became very concerned with [Father's]
behavior and asked him what was going on. [Father]
explained to her that his "OCD" was related to a sexual
orientation that he has towards children. She stated that
[Father] will often blurt aloud such phrases as, "No! No!" and
"Stop It" to get "thoughts" out of his head. She stated that she
was overly concerned but [Father] assured her that he had it
"under control".
****
[Mother] stated that [Father] likes to "repeatedly" kiss their
daughters on the lips. She stated that her father was visiting
and observed [Father] give MCK a prolonged kiss which
"freaked" her father out. She confronted [Father] after this
incident and related to him that she was not comfortable with
him kissing MCK & EK in this manner and [Father] stated, "it
makes me feel good and I'm not stopping".
[Mother] stated that as recent as March 17th, 2016 [Father]
was snuggling on the couch with EK in the living room and
she heard "kissing noises" and came into the room to see
what was going on. She began to feel awkward and
uncomfortable and asked [Father] to stop. He refused and
again .stated, "it makes me feel good". He continued to do the
lip kisses and she again asked him to stop and he again
refused. She stayed in the living room to closely observe the
situation. As [Father] continued to snuggle with their daughter
on the couch he made the statement, "I'm becoming aroused
sitting here with our daughter". [Father] asked her if he was
"being bad". After this incident she feared for the safety and
protection of her children as [Father] has never been "so blunt
and bold in his description".
[Mother] stated that [Father] seeks validation for his feelings
and behaviors' and often asks her if he is doing something
wrong or "am I ok?" She stated that she was not going to
validate his feelings after this incident and stated, '1lllllt only
you know what you are feeling and thinking, so only you know
if your behavior is inappropriate." [Father] became frustrated
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and stated, "What", "I'm just asking for your support; I just
need your support". She then picked up EK and put EK and
MCK to bed for the night.
See Police Criminal Complaint, August 2, 2016, Incident Number PA 16-104545.
That same day, Caseworker Ricker and Trooper Buie conducted a preliminary
interview of Father wherein he stated the following:
He conducted a religious "mission" trip years ago and was.
informed that he could not "touch, put kids on laps, or show
affection to children" as a rule while on the mission. He has
had problems getting close to MCK and EK ever since the
conclusion of his mission trip and only recently has he been
able to establish a relationship with MCK and EK. [Father]
stated that he may "bump" into MCK and because "it's his
OCD" he then asks MCK if he "bumped" into her and
apologizes .
. . . (Father] asked if he could "give the kids some candy" prior
to him leaving the residence. (Trooper Buie and Caseworker
Ricker] advised (Father] that he could give MCK and EK candy
before' leaving the residence. Upon, leaving the residence,
[Father] stated to MCK, "give daddy a hug". As MCK
approached [Father], [Trooper Buie] observed her to attempt
to kiss (Father] on the lips and [Father] turned his head to the
side and stated, "no honey ..... on the cheek". MCK kissed
(Father] on the cheek and [Father] subsequently left the
residence.
See Police Criminal Complaint, August 2, 2016, Incident Number PA 16-104545. Father
agreed to leave the marital residence and have no contact with the children for thirty (30)
days pursuant to a safety plan which prevented the children from being placed in foster
care. On April 18, 2016, the Honorable John F. Cherry confirmed the safety plan. On
May 14, 2016, the safety plan expired without incident. After an investigation by DCCYS,
which included an interview of M.K. at the Children's Resource Center that yielded no
disclosures, the allegations were determined to be unfounded as of June 13, 2016.
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Following the pretrial conference on June 13, 2016, the parties agreed that Father
would undergo a § 5329 assessment, and Mother would complete the Minnesota
Multiphasic Personality Inventory II ("MMPl-11"), both to be conducted by Laurie Pittman
at Beacon Psychological. In addition, this Court ordered primary physical custody of the
children remain with Mother, and permitted Father to have supervised visitation with the
children at the YWCA, as well as visit with his newborn son in the hospital.2 On July 12,
2016, Mother filed a Renewed Motion for Full Expedited Hearing on Relocation, and this
Court subsequently scheduled a hearing for September 6, 2016.
On August 2, 2016, prior to the scheduled hearing, Mother filed a Petition to Modify
Custody, as well as an Emergency Petition for Special Relief. The Emergency Petition
stated that criminal charges were formally brought against Father on August 2, 2016, and
requested Father's periods of supervised visitation be suspended pending resolution of
the criminal charges.3 Despite the request, Father's periods of supervised visitation had
yet to begin. Two days later, on August 4, 2016, Mother filed a Petition for Protection
from Abuse ("PFA") raising the same allegations that were investigated and deemed
unfounded by DCCYS, are currently being investigated by the Pennsylvania State Police,
and that were raised as the basis for the Emergency Petition. A temporary protection
order was granted protecting Mother and the three (3) minor children. Mother's
Emergency Petition was subsequently denied by this Court on August 5, 2016. Since this
2 See Order of June 13, 2016,
3Father was originally charged with two (2) counts of Indecent Assault (M1 ), two (2) counts of Corruption
of Minors (M1 ), and two (2) counts of Unlawful Contact With Minor- Sexual Offenses (F3). The two (2)
counts of Unlawful Contact with Minor were subsequently withdrawn, and the remaining charges have
been bound over for court. The case is currently scheduled for miscellaneous court on April 5, 2017
before the Honorable Scott A. Evans. CP-22-CR-6909-2016.
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Court is assigned the custody action, V'./8 were also assigned the PFA action as the two
are interrelated.
On August 16, 2016, Father filed a Petition for Special Relief stating that the parties
attempted to begin supervised visitations at the YWCA, but were told that the YWCA
could not facilitate visits for the family and were referred to two (2) other entities - Catholic
Charities and Alternative Behavior Consultants ("ABC") House. It further stated that
Mother refused to agree on Catholic Charities, and requested an Order requiring Mother
to make the children available for a minimum of two (2) supervised visits per week.
Thereafter, this Court conducted a status conference on Septernbert. 2016 with counsel
for the parties and subsequently ordered supervised visitation between Father and the
children to occur at ABC House by agreement of the parties.4
On September 6, 2016, this Court conducted a PFA and relocation hearing in
which both parties testified. In addition, we heard testimony from Christina Masser
(M.K.'s kindergarten teacher), Trooper Buie, Caseworker Ricker, Dr. Laurie Pittman
(forensic psychologist), Carla Sauer (principal at Halifax Elementary School), Dr. Dwayne
Narayan (Father's psychiatrist), (Maternal Grandfather), -
(Maternal Aunt), and (Paternal Aunt). At the
conclusion of the testimony pertinent to the allegations of abuse, this Court dismissed
Mother's PFA since adequate safety protocols were already in place and the PFA would
serve no further purpose.
Dr. Laurie Pittman (hereinafter "Dr. Pittman") is a forensic psychologist who
conducted a risk assessment of Father, and a MMPl-11 evaluation of Mother. While Or.
4 See Order of September 1, 2016.
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Pittman is a highly qualified and well-regarded professional in the area, her testimony in
this particular case appears to this Court to be possibly biased. Mother and her family
raised a concern about Father's potential hoarding and provided Dr. Pittman with several
pictures from a trailer that the parties lived in between 2011 and 2013. (Notes of
Testimony, Custody Hearing 9/6/16 (hereinafter "N.T. 9/6/16") at 89). Throughout her
report of Father, Dr. Pittman repeatedly mentions the issue of hoarding when there does
not appear to be a relevant context in which to mention it. For example, in reporting on
her interview with (Paternal Aunt), she writes:
1j malso recalls on another occasion they went to the
mall to purchase a pair of jeans for11111 but I S reported,
"No, I don't think we can do that today."
This evaluator realizes that what is not indicated here is
compulsive spending on "toys" and other
collections and that .. SL resents nott
prioritizing the physical safety of the children given his.
hoarding. ·
See Plaintiff's Exhibit 4, Psychological Report of ••••••••••t authored
by Dr. Laurie Pittman, 6/30/2016 at p. 35. Later in the report, Dr. Pittman writes of
••••-- • recollection of meeting Maternal Grandfather on four (4) occasions.
Immediately following the paragraph _regarding ....... impression of Maternal
Grandfather, Dr. Pittman writes: "In the phone interviews with
-sister .. they report of extreme discomfort for - as well as his
father's hoarding." See Psychological Report of authored
by Dr. Laurie Pittman, 6/30/2016 at p. 36. Despite Dr. Pittman's apparent belief that the
alleged hoarding creates a significant concern with Father's ability to have unsupervised
contact with the children, as well as the safety of the children, Dr. Pittman admitted that
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she did not question Father or his family about the alleged hoarding. (N.T. 9/6/16 at 103-
104).
During our proceedings, Father and his family testified extensively about the
hoarding allegations. Their testimony revealed that both Father and Mother had hoarding
tendencies, and the pictures provided to Dr. Pittman conveniently did not depict Mother's
portion of the clutter. The testimony also revealed that neither Father nor Mother were
exceptional housekeepers, and the combination of the two is what led to the "deplorable"
living conditions as described by Maternal Grandfather. (Notes of Testimony, Custody
Hearing 1/6/17 (hereinafter "N.T. 1/6/17") at 115-16). In addition, the pictures provided
to Dr. Pittman were taken after the parties moved from Virginia to Pennsylvania, and the
parties were initially residing in Paternal Grandparents' home while the trailer was being
finished for the parties. (N.T. 1/6/17 at 114). However, when Paternal Grandparents'
asked the parties to contribute by taking on some of the household tasks, Mother
adamantly refused and demanded that they leave Paternal Grandparent's home
immediately and caused the parties to move into the trailer prematurely. (N.T. 1/6/17 at
114-15).
In addition, Dr. Pittman testified that she believes that Father's family were not
truth-telling. (N.T. 9/6/16 at 89, 95). Her opinion is based on the fact that "they were not
giving me the full picture of what was going on via the interactions that P .. • ;; ] Father
was trying to have with •••• , with rwrm••FtJThey had a tendency to provide a lot of
5 Dr. Pittman is referring to Father's statement that Maternal Grandfather is controlling and he had several
conversations with Maternal Grandfather regarding money, and Maternal Grandfather's disappointment
with Father for not earning enough money. In contrast, Maternal Grandfather stated to Dr. Pittman that
he was merely concerned about the safety of the children due to the alleged hoarding, and attempts to
discuss it with Father were unsuccessful. Notably, Maternal Grandfather testified that he never brought
up the hoarding issue directly to Father because he wanted to respect their privacy. (N.T. 9/6/16 at 217).
Page 7 of 23
indications of where I should be looking at , not at '(N.T. 9/6/16
at 89). She further testified, "[n]obody talked about the hoarding. They talked about the
father-in-law coming across as cold and as snobbish. They were not talking about the
at 96). As stated earlier, despite Dr. Pittman's apparent fixation on the hoarding issue,
and Father and his family's failure to talk about it, Dr. Pittman failed to ask Father or any
of his family members about the alleged allegations.
In contrast, Dr. Pittman believed Mother's family was very truthful and forthcoming.
This is troubling to the Court as the testimony in our proceedings revealed that Father's
family has always been extremely involved in caring for the minor children, and would
frequently visit the parties wherever they were living. As Mother's family primarily resides
in Utah, Maternal Grandfather admitted that they would only visit the parties once or twice
a year for approximately one (1) week at a time. (N.T. 9/6/16 at 199). ,-1 ' .,·· .\_,· ', .... '. ,' ..;;;
(Maternal Aunt) also lives in Utah and stated that she visits approximately five (5) times
a year, for a total of one hundred (100) days in the past ten (10) years. (N.T. 9/6/16 at
227, 233-34).
Despite Father's family having more personal contact and observation of the
parties and the minor children, Dr. Pittman dismissed their concerns of Mother because
she felt they were not providing "the full picture". Yet, she found that Mother's family, who
infrequently visited with the family and had minimal involvement with the minor children
on those visits, was providing "the full picture". Further, Dr. Pittman admitted that she
asked Mother to respond to certain allegations that Father or his family reported.
Maternal Grandfather also admitted that he "suggested" to Father that Father needed to earn more
money to "improve his lifestyle and also enhance his family's." (N.T. 9/6/16 at 216).
Page 8 of 23 I
However, she did ask Father to respond to any of the allegations that Mother or her family
reported, especially the allegations of hoarding and a show-and-tell incident at M.K.'s
school - both of which Dr. Pittman found to be significant in her evaluation of Father.
Accordingly, this Court finds Dr. Pittman's report to be disturbingly subjective. This
Court's observation was ratified by Dr. Narayan's testimony where he challenged the
methodology and conclusions of Dr. Pittman's report.
We also heard testimony from Father's psychiatrist, Dr. Dwayne Narayan. Dr.
Narayan is a general adult psychiatrist who specializes in the treatment of Obsessive-
Compulsive Disorder ("OCD"), anxiety disorders, body image and eating disorders,
depression, and bipolar disorder. He shared the same concerns as this Court with Dr.
Pittman's methodology:
I find Dr. Pittman's report very difficult to follow .... [S]he does
do a number of interviews or evaluations of people, and· they
are written as if it's just a running commentary . . - she calls
someone, they say all this stuff over the phone, she writes it
down almost as if they're saying it, doesn't seem to be a
question-and-answer like I would hope. And I'm not a forensic
psychologist, but I would hope that anyone doing an
evaluation would ask a question. Say, I wanted to get this
information; what was their response to it? Really outlined in
an organized way. Her presentation does not read like that.
And then you get these bold-faced additions or comments
refuting or adding some comment to a particular person's
interview that had nothing to do with that interview. And,
again, strictly speaking, you want to put the information that
you're getting from the outside - you want to get your data in
one section and then do a formulation, do an assessment of
that data in another section so it's clear .... Get my data,
synthesize it, present a conclusion. I'm not sure what she was
doing with these interviews.
(N.T. 9/6/16 at 142-43).
Page 9 of 23
As for his treatment of Father, Dr. Narayan first met him in 2002 and treated him for OCD
and depression until 2003 when Dr. Narayan left that practice. Father began seeing Dr.
Narayan again in 2016 after the allegations were made to DCCYS. Dr. Narayn provided
I
the following explanation of OCD: .I
OCD is a psychiatric illness where one gets repetitive,
intrusive thoughts that cause distress, that are not logical
thoughts in the strict sense of the word, but they are thoughts
that are extremely unlikely to happen. . . . The reaction to
those thoughts is one of very, very high levels of anxiety or
one trying to convince themselves that they're in their right
mind, which is not particularly easy to do when you're in a
heightened anxiety state. In order to soothe the anxiety,
people go through what we call compulsive behaviors.
Compulsive thinking, compulsive checking, compulsive
cleaning. Some compulsions designed to reduce the anxiety
brought on by these intrusive thoughts. And then what you
see after that is a cycle of having more and more obsessive
thoughts, thoughts they don't want to have, thoughts that-we
call them ego-dystonicity. They're against their character,
their beliefs. They do not make sense. They are thoughts
that they don't want to have. They're fearful of even having
the thoughts. And, again, that generates more of the
compulsive behaviors trying to deal with that anxiety.
-,
The only benefit of a compulsion is to lower the anxiety
so that one can go on with a normal life. Unfortunately for
· people that suffer from the illness, they end up experiencing
more and more obsessional thoughts each time they do a
compulsion. So each time you have a compulsion, it drives
the underlying obsession and keeping [sic] going and going.
(N.T. 9/6/16 at 126-27). With respect to Father's specific diagnosis of OCD, Dr. Narayan
testified:
With his children, he would describe ... that they would
latch onto him, as all kids do .... [Y]ou're trying to put a kid to
bed, and you give them a kiss good time, it's extremely
common for kids just to say, well, I'm going to hold on. I don't
want to go to sleep. I want to give you a longer kiss. Well,
what that does for is that it would trigger the worry of,
well, first of all, it doesn't feel right. Every parent wants to put
1.
Page 10 of 23
their kid to bed and move on. And that is the reaction we
would hope that he would have, the reaction that the rest of
us would have. His brain then says, oh, - rather than having
that feeling - oh, did I do something inappropriate? Did I feel
something inappropriate? What - was I aroused? ... And he
will go right to the worst case scenario. Gosh, I had the
sensation. I think I was aroused, but I'm not sure. Again,
logically he knows he wasn't. He knows he's disgusted by
any idea of having any sort of sexually inappropriate contact
with a kid. He's very clear about that. But his worry side, it's
very consistent with OCD. It's textbook. ·
(N.T. 9/6/16 at 132-33). This explanation tends to confirm Father's testimony regarding
the March 17, 2016 incident:
First of all, there was never more than one kiss. -and
I were in the same room from the very beginning .... [E.K.]
climbed up on the couch while Q t and I were talking,
hopped on my lap, wrapped her arms around my neck, and
planted a big kiss on my lips . .. You know, because we all
kissed on the lips. We all did. [E.K.] didn't let go, and I started
to become a little nervous .... So when [E.K.] climbed on my
lap, I had a panic attack that maybe something was happening
because maybe it was bad because we weren't allowed to
have kids on our laps there. I froze. I looked at my wife, and
I said -when [E.K.] wouldn't let go - I said, can you take her?
And she glared at me and didn't take her. And I said, honey,
can you take her? And she wouldn't take her .... I eventually
pulled her arms off from around my neck and I sat her beside
me. And I told that I had a fear that maybe I was
become aroused. I never said I was, and, quite frankly, I
wasn't. I never have ever been aroused by a child ever. But
it's the fear of the possibility with OCD.
(N.T. 1/6/17 at 144-45). Dr. Narayan went on to explain that there is a zero likelihood that
an individual diagnosed with OCD would ever act on their fear. (N.T. 9/6/16 at 129).
Specifically, Dr. Narayan testified that he can say with reasonable medical certainty that
Father would not harm his children in any way. (N.T. 9/6/16 at 138).
Page 11 of 23
The primary form of treatment of OCD is cognitive behavioral psychotherapy which
teaches you strategies to eliminate the compulsions, such as desensitization. (&) Dr.
Narayan provided the following example of this type of treatment:
[S]omeone who has a fear of, say, stabbing me. A
patient comes to my office. They said, "I just got this thought.
It's not that I want to have it, but I worry that I might stab you."
What we try to do is desensitize the thought, get them
comfortable with the idea that the thought is error ....
But what someone with OCD might do is try any way
possible to not touch a knife. So we would bring the knives
into the therapy, and it is commonplace for us to have people
imagine the knives on the table, and ... get used to that. That
will cause anxiety for them. If they tolerate that, we'll put
knives on the table in real life and get them to sit there and
say, well, now, where are your thoughts? You've having to
learn to sit with those thoughts now. They will go away over
time. They will desensitize. And once that happens, that fear
is no longer there.
(N.T. 9/6/16 at 129-30). Although Dr. Narayan testified that Father was taught some of
the techniques for treating OCD, he admitted that Father was not handling his OCD
properly by asking Mother for reassurance for his behaviors. (N.T. 9/6/16 at 134). Each
time that Father asked Mother for reassurance, it made him· 1ess secure the next time a
thought would come up. (N.T. 9/6/16 at 135). Dr. Narayan testified that a spouse can
only put up with so much of that type of coping mechanism before they say it is craziness.
(N.T. 9/6/16 at 134). He stated that Father cannot continue to use reassurance as a way
of dealing with his OCD, and that will be addressed in therapy. (N.T. 9/6/16 at 153). For
Father, Dr. Narayan's treatment goal is for him to be comfortable appropriately kissing his
children as a parent. (N.T. 9/6/16 at 135).
With respect to hoarding, Dr. Narayan testified that hoarding is a medical problem.
(N.T. 9/6/16 at 139). However, it cannot be diagnosed without talking to the patient. (N.T.
Page 12 of 23
9/6/16 at 141 ). He said it would be "difficult to diagnosis just based on a set of pictures
without additional information." (.19..:) Aside from talking to the patient, Dr. Narayan would
also go and view the entire home and see where things are before making a diagnosis of
hoarding. (.19..:)
Since we were unable to complete the testimony on September 6, 2016, a second
(2nd) day of the relocation hearing was scheduled for October 20, 2016. On October 11,
2016, Father filed a Motion for Continuance due to the preliminary hearing on his criminal
being was continued until November. In addition, Father had only had one (1) supervised
visit at that time and had hoped to have a few more visits prior to the next session ofthe
relocation hearing. This Court granted Father's request, and the relocation hearing was
continued until January 6, 2017.6
On November 30, 2016, Father filed a Petition for Special Relief and Request for
Expedited Hearing alleging that Mother had unilaterally cancelled a number of supervised
visits, and requesting an order requiring Mother to cooperate in ensuring the visits occur.
Due to the contentious nature of this action, this Court scheduled an emergency hearing
for December 9, 2016. At that hearing, we learned that Father had a total of three (3)
supervised visits at ABC House - October 1, 14, and 29, 2016 - and all other visits were
cancelled with no make-up days scheduled.7 At the conclusion of the hearing, the Court
ordered supervised visitation to restart and to occur at least once every other week. It
6 Mother filed a Motion for Reconsideration of our order continuing the hearing due to the fact that she
objected to the continuance and did not have an opportunity to respond pursuant to Pennsylvania Rule of
Civil Procedure 208.3 and Dauphin County Local Rule 208.3(b). This Court denied Mother's request
stating that Pennsylvania Rule of Civil Procedure 208.1 (2)(iii) specifically states that the procedure for
motions, contested or uncontested, does not apply to family law actions.
7 See discussions under factor 5 below.
Page 13 of 23
was also ordered that a visit was to occur around the Christmas holiday, and that the
Paternal Grandparents could attend.8
Our next hearing in this saga occurred on January 6, 2017, at which time we heard
testimony from Robin Snyder (supervisor at ABC House), Mother (completion of her
original testimony),••••tr (Father's co-worker and friend), •••• (Father's
co-worker and friend), •••••• (Paternal Aunt), ii1111••••t(Paternal
Grandfather), and Father. The final hearing occurred on January 19, 2017 at which time
Father concluded his testimony and Mother was called for rebuttal.
DISCUSSION
Before this Court is Mother's Complaint for Custody and request to relocate the
minor children to Utah, as well as Father's request to relocate the minor children to
Franklin County, Pennsylvania. In addition to reviewing the record, we have heard
· testimony from both parties, and their respective witnesses. We have weighed the
evidence in light of the presumptions concerning primary physical custody and burdens
that apply to each of the parties under the Child Custody Act. 23 Pa.C.S.A. § 5327(a)-
(b).
Pursuant to the current Child Custody Act, before making any custodial award, the
Court must determine "the best interests of the child by considering all relevant factors,
giving weighted consideration to those factors which affect the safety of the child,"
including the sixteen (16) statutorily defined factors, and ten (10) relocation factors. 23
Pa.C.S.A. §§ 5328(a), 5337(g); see J.R.M. v. J.E.A., 33 A.2d 647, 652 (Pa. Super. 2011).
8
Testimony at the hearing revealed that Mother denied Paternal Grandparents supervised visitation at
ABC House. (N.T 12/9/16 at 54-55).
Page 14 of 23
Due to Father's pending criminal charges and Mother's expressed intent to relocate to
Utah, this Court has only considered the relocation factors.
RELOCATION FACTORS
(1) The nature, quality, extent of involvement and duration of the children's
relationship with the party proposing to relocate and with the nonrelocating party,
siblings and other significant persons in the children's lives.
There is conflicting testimony regarding Father's involvement with the children
during the parties' marriage. Mother testified that she primarily cared for the children, and
Father only cared for the children while she was working. (N.T. 9/6/16 at 247). She further
stated that Father had little interaction with the children as he did not help with meals,
clean, change diapers, etc. because he would be tinkering with stuff in the garage,
sleeping, or on his cell phone. (N.T. 9/6/16 at 249). However, Mother also testified that
she and the children would visit Father at his second (2nd) job every night for dinner so
that Father could tell the children good night. (N.T. 9/6/16 at 248). She testified that
Father was never able to have a "normal" relationship with the children and she always
acted as a go-between. (N.T. 1/6/17 at 74).
According to Father, when M.K. was first born the parties worked opposite shifts,
therefore, both parties cared for M.K. (N.T. 1/6/17 at 138). He further testified that Mother
always asked him to care for the children, and never voiced a concern with his ability to
do so. (N.T. 1/6/17 at 139-41 ). He has attended school events and parent-teacher
meetings for M.K., and he has taken both of the girls to the doctors on several occasions.
(N.T. 1/6/17 at 151, 156-57).
Both parties admit that Paternal Grandparents, as well as Paternal Aunt (Mrs.
u have been a significant factor in the children's lives.
Page 15 of 23
when they lived in Virginia. (N.T. 1/6/17 at 95-96, 112). When they moved to
Pennsylvania, the parties resided on Paternal Grandparents' property. (N .T. 1 /6/17 at
114). During that time, Paternal Grandparents babysat M.K. approximately six (6) times
(6) times a week and helped with babysitting. (N.T. 1/6/17 at 94). When the parties moved
to Halifax, Paternal Grandparents and Ms ..... visited approximately two (2) to three (3)
times a month. (N.T. 1/6/17 at 93, 118) . Ms. llillr testified that11F•it misses M.K. very
much as Mother did not allow them to contact the children.9 (N.T. 1/6/17 at 107).
(2) The age, developmental stage, needs of the children and the likely impact the
relocation will have on the children's physical, educational and emotional
development, taking into consideration any special needs of the children.
The children are M.K. (age 7), E.K. (age 2 Yz), and AK. (age 7 months). The
parties moved to Pennsylvania when M.K. was approximately two (2) years old, and have
resided in Halifax since 2013. According to Maternal Grandfather's testimony, a
relocation would be positive for the children because they would be removed from what
he deems an unsafe environment (OCD and hoarding) and would live a "normal" life.
(N.T. 9/6/16 at 212). Mother testified that she and the children would have a support
network in Utah as she currently does not have one in Pennsylvania. (N.T. 1/6/17 at 75).
The Court notes that the combined testimony of all the proceedings in this case indicate
that Father's family did provide a support network for Mother in Pennsylvania, however,
she elected to sever that relationship.
9At our last hearing on January 19, 2017, Mother testified that she made efforts to contact Paternal
Grandparents and Paternal Aunt after this Court admonished her for cutting off all contact.
Page 16 of 23
There was no testimony provided as to what school district and school M.K.
would be attend if permitted to relocate, and how that school compares to her current
school. Mother did testify that her family would provide free daycare for E.K. and A.K. in
Utah: (N.T. 9/6/16 at 250). .
(3) The feasibility of preserving the relationship between the nonrelocating party and
the children through suitable custody arrangements, considering the logistics and
financial circumstances of the parties.
Mother testified that she does not believe Father's relationship with the children
would be significantly impaired if she relocated to Utah. Specifically, she stated "[w]hether
the supervision happens here or in Utah, it doesn't really matter. It's just a matter of
location. I mean, he's got supervised visitation." (N.T. 1/6/17 at 72). However, she also
admitted that neither she nor Father have the funds to fly to Utah regularly for the
visitations to occur. (kl) She stated that the Renaissance Child Visitation Center in Salt
Lake City, Utah would provide supervised visits between Father and the children. (N.T.
1/6/17 at 49). The center is located about halfway between Ms. (Paternal
Aunt) home and Maternal Grandparents home - approximately an hour and a half (1 Yz)
drive. (N.T. 1/6/17 at 49-50). She testified that Father visits at least one (1) time a year,
has work connections in Utah, and the Church headquarters is located in Utah. (kl) She
further testified that Father could visit any time in Utah so long as it does not interfere with
M.K.'s school or extra-curricular activities. (N.T. 1/6/17 at 50).
Father is fearful that if Mother is permitted to relocate to Utah, the children will
lose their father. He already has difficulty maintaining consistent supervised visitations in
Pennsylvania, and is concerned about the logistics and feasibility of maintaining contact
with the children if they are in Utah. Further, Mother has contacted the children's medical
Page 17 of 23
providers in Pennsylvania and M.K.'s school to inform them not to release any information
to Father without her consent.
(4) The children's preference, taking into consideration the age and maturity of the
children.
By agreement this Court did not interview the children because of their young age.
(5) Whether there is an established pattern of conduct of either party to promote or
thwart the relationship of the children and the other party.
There was significant testimony indicating that Mother is attempting to thwart
Father's relationship with the children. Mother first asked Father to relocate as a family
to Utah beginning on or about May 2015. (N.T. 1/6/17 at 51, 142). Father testified that
Mother expressed a strong desire to return to Utah because she wanted Father to make
more money and live in a bigger home. (N.T. 1/6/17 at 142). Father did not want to move
because they had just purchased a home, he was happy with his job, and they had
already moved four (4) times during their marriage. (N.T. 1/6/17 at 142-43). Mother
became upset, and according to Father, the request to move to Utah became a constant
issue between the parties. (N.T. 1/6/17 at 143). Despite Mother's testimony that she had
been afraid of Father for a number of years during their marriage, she admitted that she
never told anyone about her alleged fear until after Father said "no" to moving to Utah
during an argument on or about March 13, 2016. (N.T. 9/6/16 at 54-55). The DCCYS
investigation, which was subsequently unfounded, and the criminal charges were brought
solely based upon Mother's perception of the March 17, 2016 incident (i.e., there were no
disclosures made by a child, there was no physical evidence, and no actual observed
criminal acts).
Further, Mother sent Father the following text message on May 10, 2016:
Page 18 of 23
I know that spending time with our son in the hospital is
important to you and having your family there as well. I also
know that being apart [sic] of naming him is important to you
too. If you want to have these opportunities then I need you
to sign the relocation paperwork because that is what is
important to me. If you sign it then I won't have a need for
either vehicle and you will get to keep them, otherwise I will
try and get the truck because it's more reliable. The choice is
yours. This is [sic] relocation is the most important thing to
me and my ability to move forward. Please make this easy
for both of us.
See N.T. 1/6/17 at 65-66; see also Defendant's Exhibit 21. Father did not comply with
Mother's demands and as a result, neither Father nor his family were permitted in the
hospital when A.K. was born, and Father did not have a say in naming their son. (N.T.
1/6/17 at 66-67).
In addition, Father was court-ordered to have supervised visitation with the minor
children on June 13, 2016 at the YWCA.10 Unfortunately, we learned at the pretrial
conference on September 1, 2016, that the YWCA initially agreed to offer supervised
visitations to the family. However, when they learned of the nature of Father's criminal
charges, they declined to offer their services. The parties then tried Catholic Charities,
who again initially agreed to offer their services, but once they learned of the nature of
Father's charges they declined. Therefore, on September 1, 2016, we issued another
Order providing Father with supervised visitations at ABC House in Carlisle." Despite
being permitted to have supervised visitation as early as June 13, 2016, Father did not
have his first supervised visitation until October 1, 2016.
10See Order of June 13, 2016.
11The Court notes that there is no fee for supervised visitation at either the YWCA or Catholic Charities,
but there is a fee for ABC House.
Page 19 of 23
Prior to the first visit, Mother emailed ABC House to inform them of certain
behaviors to look for in Father during the supervised visitation sessions. (Notes of
Testimony, Special Relief Hearing, 12/9/16 (hereinafter "N.T. 12/9/16") at 32). According
to Mother, ABC House agreed to intervene and document if and when the enumerated
behaviors occurred. (N.T. 12/9/16 at 33). Following the first visit, Mother exchanged
letters with Kim Sweger, Executive Director of ABC House, regarding her complaints
about ABC House staff and their failure to comply with the rules.12 According to Mother,
ABC House staff repeatedly pressured the girls into visiting with Father after expressing
discomfort in seeing him. (N.T. 12/9/16 at 35). Further, Mother felt that she had observed
some of the enumerated behaviors in Father and was upset that ABC House did riot
document them. (N.T. 12/9/16 at 37-38).
According to Robin Snyder, the supervisor at ABC House, the first three (3) visits
- October 1, 15, and 29 - went well and there was no violations of the visitation center
rules or Mother's list of enumerated behaviors. (N.T. 1/6/17 at 12-13). The next visit was
not until December 16, 2016, after our special relief hearing. Mother cancelled the
November 12, 2016 visit with no reason given. (N.T. 1/6/17 at 16). Father subsequently
learned that Mother cancelled because she did not have gas money. (N .T. 12/9/16 at 21 ).
That visit was rescheduled to November 19, 2016, but was also cancelled by Mother
because A.K. and E.K. were allegedly sick. (N.T. 12/9/16 at 20, N.T. 1/6/17 at 16). Father
subsequently learned that despite the November 19th visit being cancelled, the children
attended church the following day. (N.T. 12/9/16 at 20).
12 See Father's Petition for Special Relief and Expedited Hearing, 11/30/16, Exhibits B, C, and D.
Page 20 of 23
The next visit was scheduled for November 26, 2016. That visit was also cancelled
by Mother because she had a prior commitment with her sister in Virginia.13 (N.T. 12/9/16
at 55; N.T. 1/6/17 at 17). Robin asked Mother if she would make the visit up, and Mother
responded that she was unavailable. (N.T. 1/6/17 at 17). The December 3, 2016 visit
was cancelled because the children were allegedly sick again. (kL} The next visit was
December 16, 2016, but it was cut short due to an accident which caused Mother to arrive
late. (.!Q,,) On December 24, 2016, Paternal Grandparents accompanied Father for a
Christmas visit with the children.14 (N.T. 1/6/17 at 18). At the January 6, 2017 hearing, it
was learned that no further visits were scheduled because Mother wanted to await the
outcome of that hearing. (N.T. 1/6/17 at 20). At the final hearing on January 19, 2017,
we learned that Father had two (2) more visits - January 7 and 17 - which also went well.
Mother also ceased all communication between the children and Father's family
from April 2016 until January 2017 when this Court admonished Mother on the record for
cutting off the children's access to extended family, specifically Father's family.
(6) Whether the relocation will enhance the general quality of life for the partv seeking
the relocation, including, but not limited to, financial or emotional benefit or
educational opportunity.
Mother testified that the quality of her life would be enhanced if permitted to
relocate to Mendon, Utah. (N.T. 9/6/16 at 249-50). Mother is currently unemployed and
receiving child and spousal support from Father. She stated that it would be financially
burdensome for her to remain in Pennsylvania because if she were to find employment,
13 The November 26 visit was scheduled in October, but Mother did not inform Robin at that time that she
had a prior commitment. (N.T. 1/6/17 at 17).
14 Paternal Grandparents were required to apply for supervised visitation and to pay the $65 fee. (N.T.
1/6/17 at 18). They had previously applied for visitation at the end of October, but Mother refused. (N.T.
1/6/17 at 18-19).
Page 21 of 23
at most she would be paid is $14 an hour. (N.T. 9/6/16 at 250-52). When factoring in
childcare costs, her income, and support payments, she would not have enough total
income to cover all of the necessary expenses, such as the mortgage, utilities and
groceries. (N.T. 9/6/16 at 252-53). In addition, she testified that she would not be able
to afford to return to school if she remains in Pennsylvania15, nor would she be able to
afford the childcare costs. (N.T. 9/6/16 at 254).
If permitted to relocate to Utah, Mother would live rent free with Maternal
Grandparents while she finished her nursing degree. (N.T. 9/6/16 at 253). Once she
obtained a nursing degree, then she would be able to work part-time for $33 an hour in
Cash County Utah. (N.T. 9/6/16 at 253). In addition, Mother would have the benefit of
emotional support in Utah as she needs to undergo extensive trauma therapy due to the
nature of the marriage and how things have evolved. (N.T. 9/6/16 at 254). She testified
that she would not be able to find childcare in order to attend the trauma sessions in
Pennsylvania, and even if she did, once the therapy was completed she would return to
her life and not have the benefit of Maternal Grandmother to give her a hug or watch the
children while she meditates. (N.T. 9/6/16 at 254-55).
(7) Whether the relocation will enhance the general quality of life for the children,
including, but not limited to, financial or emotional benefit or educational
opportunity.
There was little significant testimony on this factor. Mother did not provide any
information on which school district and the specific school M.K. would attend if permitted
to relocate. E.K. and A.K. are not school aged yet. Mother did testify that she would be
15 This Court is at somewhat of a loss as to how Mother would be able to afford school in Utah, but not in
Pennsylvania. However, we can surmise that Maternal Grandparents would only pay for Mother to return
to school in Utah, but not Pennsylvania.
Page 22 of 23
able to provide for the children better emotionally, physically and spiritually in Utah. (N.T.
1/6/17 at 75-76). Aside from a few vague statements, there was no testimony" or evidence
that would show that a relocation would enhance the general quality of life for the children.
However, relocation would further isolate the children from Father and Father's family.
-
(8) The reasons and motivation of each party for seeking or opposing the relocation.
Mother testified that her reasons for moving are to be closer to her family,
financial stability, and an opportunity to gain an education. (N.T. 9/6/16 at 249-51).
However, the testimony revealed that despite the financial ability to do so, Maternal
Grandparents only visited once or twice a year and had minimal involvement with the
children during those visits. (N.T. 1/6/17 at 150). Father's family appears to have
extensive involvement in the upbringing of the children. While it is true that a relocation
to Utah would be closer to Mother's family, it would be a significant distance away from
Father's family in Pennsylvania.
Additionally, Father testified that Mother had always told him she had a better
relationship with her parents when she lived far away from them. (N.T. 1/6/17 at 149-50).
He also disputes the fact that Mother would not be able to obtain a nursing degree if she
remained in Pennsylvania. There are several colleges in the Harrisburg area, as well as
in Franklin County, that offer programs for nursing degrees, such as Penn State University
(Middletown), Messiah College, Harrisburg Area Community College, Drexel University
(Chambersburg), and Wilson College. (N.T. 1/6/17 at 159-60). Father adamantly
opposes Mother's relocation to Utah because he is fearful that she will succeed in
completely cutting him out of the children's lives.
Page 23 of 23
(9) The present and past abuse committed by a party or member of the party's
household and whether there is a continued risk of harm to the children or an
abused party.
Mother alleges that Father was emotional and sexually abusive towards her
throughout the marriage. Father adamantly disputes the allegation and testified that both
he and Mother initiated any intimate contact between them. Mother further alleges that
Father is a risk of harm to the children due to his OCD and her belief that it is related to
Father's sexual attraction to minors. This Court previously addressed this factor.
(10) Any other factor affecting the best interest of the children.
No other significant factors were considered.
CONCLUSION
After consideration of the matter and based upon our review of the statutory
factors, this Court issues the following ORDER:
(This space intentionally left blank.)
Page 24 of 23
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IN THE COURT cif:c'JJ!/t4'T'~lf/1.`` .~ ....
Plaintiff/Appellant DAUPHIN COUNTY, PENNSYLVANIA
v. NO. 477 MDA 2017 ,.;._·
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TRIAL COURT NO. 2016 CV 346§-,CU',;~j
Defendant/Appellee )-/
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OPINION
[Pursuant to Pa.R.A.P. 1925(a)]
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Presently before this Court is the appeal of
or "Mother") from this Court's Memorandum Opinion and Order of February 15, 2017,
·r
••- (hereinafter "Appellant" -
denying Mother's relocation and entering an interim order for custody pending the
resolution of , . . ~: ' .::
'
~ ' .. hereinafter "Father" or "Appellee") criminal charges.
This Court believes that our Memorandum Opinion of February 15, 2017, as well
as the transcripts and evidence of record, thoroughly explain the reasons for our decision.
However, this Court will address some of the issues raised byj Appellant in her Statement
of Errors Complained of on Appeal.
Appellant filed a notice of appeal on March 17, 2017 - the last possible day in
· which the notice could be filed and considered timely. Simultaneously, Appellant filed a
Statement of Errors Complained of on Appeal (hereinafter "Statement") pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). However, this Court will not
classify the Statement as being "concise" as required by the rules as it consists of eleven
(11) main issues, ten (10) sub-issues, and spans a total of twelve (12) pages. In addition
to the overwhelming length, the Statement is riddled with opinions and characterizations
by counsel that are inappropriate, irrelevant, and some completely inaccurate. As much
as this Court would like to find that Appellant has waived her issues for her failure to
comply with the "concise" requirement, it cannot in good conscious do so because once
Page 1 of 14
stripped of extraneous comments, opinions and extra verbiage, the issues are mostly
djscernable.1
After removing counsel's extraneous comments, opinions, and extra verbiage, this
Court has discerned the following issues that we will address:
1. The Court erred by failing to address the custody factors
enumerated at 23 Pa.C.S.A. § 5328(a).
2. The Court erred in disregarding the testimony of the
agreed-upon expert, Dr. Laurie Pittman.
3. The Court erred by granting Father's request for
relocation without considering any of the relocation
factors enumerated at 23 Pa.C.S.A. § 5337.
4. The Court erred in awarding Paternal Grandparents
visitation rights.
5. The Court erred by depriving Mother of her constitutional
right to travel.
See Appellant's Statement of Errors Complained of on Appeal, March 17, 2016, para. 1,
3, 4, 10, and 11.
Appellant's remaining issues are mere dissatisfaction with this Court's decision,
and the Court's use of discretion in determining the credibility of witnesses and weight to
be afforded to each piece of evidence. Specifically, in Paragraph 8 of her Statement,
Appellant complains about ten (10) sentences from the discussion section of our
Memorandum Opinion. Appellant fails to set forth how the statements in Paragraph 2, as
well as Paragraphs 5-9 constitute an abuse of discretion. It is obvious Appellant is
dissatisfied with this Court's conclusions, however, that is not a proper basis for appeal.
I
I
1 See Donaugh v. Lincole Elec. Co , 936 A.2d 52 (Pa. Super. 2007).
Page 2 of 14
DISCUSSION
In reviewing a custody order, the Superior Court's scope is of the broadest type
and the standard of review 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.
J.R.M. v. J.E.A., 33 A.3d 647, 660 (Pa. Super. 2011).
The Court notes that Appellant is correct in that we did not include a discussion of
the custody factors at 23 Pa.C.S.A. § 5328(a) in our Memorandum Opinion. However,
the reason behind the decision is one of common sense - the Court did not change
custody, and the order is intended to be an interim order until Father's criminal charges
are resolved.
The circumstances of this case are peculiar, and leave a number of unanswered
questions pertinent to a final custody decision. Father currently has criminal charges
pending from an incident that occurred on or about March 17, 2016. However, Dauphin
County Children and Youth Services ("DCCYS") did not get involved regarding the
incident until on or about April 14, 2016. As explained in greater detail in our
Memorandum Opinion, the charges are based solely upon Mother's statements to
Pennsylvania State Police Trooper Raschard Buie as to her perception and belief as what
did or did not occur. The DCCYS investigation was determined unfounded on June 13,
Page 3 of 14
2016. The criminal charges were not brought until about August 4, 2016 based upon the
same allegations that were investigated and deemed unfounded by DCCYS.
Due to the DCCYS investigation, a sixty (60) day safety plan was entered providing
Father no contact with the minor children. Upon expiration of the safety plan, this Court
entered an Order, following a pretrial cOnference wlth counsel, which provided Mother
with primary custody, and Father with supervised visitation at the YWCA.2 This Order
was entered to protect the children from any possible abuse, ensure the safety of the
children, and protect Father from any further allegations pending resolution of the criminal
charges. The February 15, 2017 Order did not alter the cus ody that had been previously
entered aside from the location of the supervised visitation - Mother was provided primary
custody, and Father supervised visitation at ABC House at least once per week- pending
resolution of the criminal charges. Therefore, as there was no change of custody, and it
is an interim order, it is not necessary for this Court to address the custody factors at 23
Pa.C.S.A. § 5328(a)(1 ), and there is no error.3
Appellant also alleges that this Court erred in failing to accept as true the opinion
of an expert merely because the parties agreed to utilize her services. Apparently
Appellant forgets that as the trier of fact, this Court is tasked with determining the
credibility of witnesses, even expert witnesses. Just because two parties agree to utilize
an expert, does not mean that the court must accept that opinion as true - it is within the
2
See Order of June 13, 2016. The Court notes, however, that supervised visitation did not begin until
October 1, 2016. This is more fully discussed in our Memorandum Opinion beginning on page 19 of 23.
3
This Court notes that Mother was only provided sole legal custody on a temporary basis through the
safety plan. Mother's sole legal custody ended upon expiration of the safety plan. At the conclusion of
the September 6, 2016 hearing, Mother was granted sole legal and primary physical custody. However,
that was not memorialized into a written order.
Page 4 of 14
court's discretion to determine the credibility of that witness. Appellant fails to cite any
case law to the contrary.
Although this issue was addressed in our Memorandum Opinion on pages six (6)
to nine (9), we will provide additional explanation for our decision. After listening to the
testimony and reviewing the evidence presented, this Court found the testimony of Dr.
Pittman to be subjectively biased toward Mother. As previously explained, this Court
found Dr. Pittman's testimony to be subjective for a number of reasons, such as the fact
that she asked Mother to respond to certain allegations that Father or his family reported,.
and failed to ask Father to respond to any of the allegations Mother or her family reported.
Particularly disturbing to this Court is the significance that Dr. Pittman placed on the
allegations of hoarding and a show-and-tell incident at M.K.'s school - both of which were
reported by Mother- without even bothering to ask Father to respond to those allegations.
Further, this Court's observations of Dr. Pittman's testimony were ratified by Dr.
Narayan's testimony. In addition to the portion of Dr. Narayan's testimony cited wherein
he challenged the methodology and conclusions of Dr. Pittman's report, he further
testified as follows:
Q: Now, did you agree with her other diagnoses of Richard
that she outlined in her report?
A: I did not. She is done [sic] testing and came up with -
on the last page of her report, page 48, obsessive compulsive
disorder, yes, I agree with that. Hoarding disorder, not yet
coded .... I don't agree that he has a hoarding disorder based
on all the information I have seen. That doesn't mean it's not
possible. It just means ... it hasn't been something that been
put on the table for me to identify at this point.
However, social phobia I disagree with. I have seen
zero evidence of social phobia. Yes, he was bullied as a kid.
Yes, he was anxious as a kid, perhaps based on what people
called him. I have not seen any evidence of social phobia.
Page 5 of 14
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I
He has friends that he has good connections with that are in
the report. So even if I knew no knowledge of that, he
described that. But when he comes to see me, he is very
personable with my office staff. When I'm in the background
or not there, he doesn't need me to be there. He approaches
them very well ....
The diagnosis of fetishism, exhibitionism, frotteurism
seemed to come directly out of the possibility in one of the
reports that he has an interest in those things. You can't use
that to make a diagnosis. I don't see where that's coming
from.
And the other thing I would say is that he does have a
diagnosis of major depression. He was suicidal when I saw
him - admitted him to the hospital in 2002, and that diagnosis
is omitted from her description.
(Notes of Testimony, Custody Hearing 9/6/16 (hereinafter "N.T. 9/6/16") at 144-45).
Additionally, Dr. Narayan testified at length regarding his concern that Dr. Pittman
did not have a full understanding of OCD, its symptoms and treatment. As a psychiatrist
who specializes in OCD, this Court found his testimony to be compelling:
Q: On page 46, where she talks about her opinions on
OCD-
A: Yes. My concern is that ... Dr. Pittman really .
doesn't understand all of the symptoms of OCD or understand
them significantly as they relate to? \. The particular
sentence she writes is the disconnect between••••
report of dreaded fear as well a,• I L continuation of the
practice - kissing is what the reference is here - makes no
sense as--reports he would never do anything that
would harm any kids. That's a cornerstone of OCD
treatment. You are going to have that "what if?" What if I_
could do something to hurt my kids? That's part of the
diagnosis. And so, again, he's going to probably imagine me
telling him, no, you need to go ahead and do this. His wife
insisting that he doesn't do it is only going to serve to - like,
the person with the knives and the table. Put your hands up
and not touch the knives. It's going to cause him to stay
[a]way from the kids longer, and he'll be separated in terms of
interacting with his kids .... Of course, he's not going to do
anything. to hurt his kids, but he has that worry, that
illogical worry that comes up.
Page 6 of 14
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i
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I
The review goes on to state that insists his
estranged wife affirm and validate he did nothing wrong when
he continued repeated kissing of his children also poses a
problem for this evaluator. Not quite sure what is being
referenced there in terms of OCD thinking, but my sense is
that_.was probably getting blamed for going through
with the kissing even though he was having this worry, which
is precisely what the treatment is designed to do: You must
continue to go about normal parenting behavior which
includes kissing despite the anxiety being there.
Furthermore ... the evaluator says, quote, "she has
yet to learn of all the ways OCD could manifest and why, in
particular, b I OCD centered on possible sexual
impropriety." Well, that's basic. That's Psych 101. It's sexual.
It's violence. It's religious. It's scrupulosity. Those are some
of the basic ways the disorder presents.
Dr. Pittman makes reference to hoarding as an issue
that often results from early childhood trauma. I'm not aware
of any childhood trauma. It's never been described by
I'm not sure where that's coming from, but it
suggests, again, she's searching for an underlying cause
for the OCD.
OCD is one of the most genetic psychiatric illnesses
there is. There's very good data showing that parts of the
brain that control OCD or repetitive thinking change in
response to psychotherapy and in response to medication. It
actually doesn't matter which one you choose. You can do
just therapy; you can do just medication. Either one is fine.
That changes the brain. That part of the brain becomes
smaller, less overactive, more normal, if you will. And a lot of
times there isn't an underlying problem in terms of events that
happened. There can be, but it doesn't necessarily mean
that's the case. So those are my concerns ... about her
ability to, kind of, know this illness.
There's another piece on page 47. I'm guessing it's the
second paragraph based on the lack of indentation. "Yet
._. had never had to reconcile why he fears
contamination, whether of lead or semen, with the disconnect
of, at times, unsanitary result of hoarding." Mouse droppings,
black mold is what is goes on to say. This is not a logical
process. You can be deathly fearful of one thing and not
Page 7 of 14
be fearful of another. The person who's afraid of knives in
my office may have no problem, you know, with some other
type of obsessional though that the next person might worry
about. So the fact that one has a worry in one area and a
complete lack of worry in another area wouldn't surprise me
at all.
(N.T. 9/6/16 at 145-48) (emphasis added).
It was obvious on cross-examination of Dr. Narayan that counsel for Appellant did
not comprehend Dr. Narayan's testimony and explanation of OCD. When asked specific
questions regarding Father's illness and the allegations made by Mother, Dr. Narayan
was adamant that Mother's fear of Father harming the children is misplaced:
Q: And you have testified, you said, of course, he's not
going to do something to hurt his kids; correct?
A: That's correct.
Q: But you're not 100 percent certain of that, are you?
A: Again, if I can clarify. No one can be 100 percent
certain of anything, but with reasonable medical certainty,
like I said earlier, I don't think he's going to do it.
Q: But earlier in your testimony regarding OCD, you
testified that there was a zero percent chance of ••••
turning that thought into an action; correct?
A: Correct.
Q: Okay. But now you're saying there's not a zero percent
chance, that there is a possibility that W could turn that
thought into action; correct?
I
A: Not an OCD thought, no.
Q: So your testimony is still there's a zero percent chance
of-acting out these thoughts; correct?
A: Correct.
(N.T. 9/6/16 at 164-65)
Page 8 of 14
Q: Okay. And is it fair to say that you had testified that
you would agree that after repeated times of• I L coming
to f .. I I : and asking her if it was okay, that he fears or gets
aroused when he lip kisses his daughter, that you would agree
tha~ would bellill&to have concerns about leaving her
daughters with~unsupervised?
****
A: Yes, she should get concerned, but concerned about
where their relationship is going. Am I just rescuing you
from your own thoughts? That's where my concern would be.
It would not be regarding any danqer.for the child.
Q: So when you testified that you agreed that•••
would have this thought and the thought was - you described
it as this craziness when her husband is engaging in these
lingering lip kisses with the daughter and then asking her it
was okay, you now think that she's concerned for the safety
of her marriage as opposed to the safety of her daughters?
A: I think what you're describing is lingering kissing as if
that's something he's doing. It takes two people to kiss. My
impression of the lingering kissing,· based on his
description to me, is that the child is hanging on and
kissing longer-way longer than he feels comfortable. So
I'm not sure your question is something that I can answer
directly.
(N.T. 9/6/16 at 168-69) (emphasis added). Much to Mother's chagrin, this Court made a
credibility determination that Dr. Pittman was subjectively biased towards Mother, and
therefore, little weight was afforded to her testimony. On the contrary, Dr. Narayan
presented objectively, and he succinctly provided a detailed explanation of the OCD
illness and how it relates to Father and the allegations made against him. Since credibility
determinations are within the discretion of the fact-finder, i.e. this Court, there is no error.
Next, Appellant alleges that this Court erred by granting Father's relocation request
without addressing the enumerated factors. This Court did not address the relocation
factors as it relates to Father because the order entered is intended to be an interim order.
On or about April 14, 2016, Father was given the choice of moving out of the marital home
Page 9 of 14
or having the children placed into foster care due to Mother's allegations. Father chose
to voluntarily move out of the marital residence to avoid putting the children through any
more trauma. Further, due to the allegations by Mother and the resulting criminal
charges, Father has been suspended from his position with the Pennsylvania Department
of Environmental Protection ("DEP"). On top of losing his full-time position, Mother has
also filed for child and spousal support, which Father has been paying. Due to Mother's
actions, Father had no choice but to move in with paternal grandparents in Franklin
County, Pennsylvania.
At this point, this Court does not know what the outcome of Father's criminal
charges will be. Without the answer to that question, this Court is left with numerous
variables on what could happen in the future - will Father remain in Chambersburg? Will
he return to Halifax? Will he move somewhere in-between? Will he keep his position
with the DEP? Will Mother find a job in Pennsylvania? Will Mother return to schoof in
Pennsylvania? These are all questions that are left up in the air until the criminal charges
against Father are resolved.4 Accordingly, this Court granted Father's relocation out of
necessity - he is suspended from his job, therefore is not getting paid, and had no other
practical option other than to move in with his parents. Therefore, this Court did not err
in granting Father's de facto relocation as he had nowhere else to go as a result of the
allegations.
Appellant next alleges that this Court erred in granting Paternal Grandparents
visitation rights. That is just incorrect. Our Order states "Paternal Grandparents are
permitted to have reasonable unsupervised visitation with the minor children provided that
4The April 5, 2017 plea court was continued and reschedule until May 17, 2017. There is no indication
on the docket at whose request the continuation was granted, or if there was even a request.
Page10of14
it occur in a public location."5 Despite Appellant's characterization to the contrary, that
provision does not afford Paternal Grandparents visitations rights. Rather, during the
course of the proceedings, the Court made the observation that Mother isolated herself
and the children from Father's family on or about April 14, 2016, and at the conclusion of
the January 7, 2016 hearing, admonished Mother for cutting off communication with
Father's family:
The concern the Court has is the fact that although I can
understand Mom's concern for what her husband with his
psychological issues are and what she believes has occurred
in the past, I don't understand how that translates into why
grandparents, aunts, uncles, cousins, long-term friends have
all been cut off. These are children that are in a terribly
stressed situation .... I thought it was articulated by this Court
that we would try to maintain as much normality for the benefit
of these children as possible so they're not permanently
scarred. Children can be resilient, even if something
happened in the past, if you proceed with caution going
forward. But isolation is where this Court has a concern.
But for that emergency action and that emergency
hearing and this order-an order from this Court directing
that the grandparents see the children for Christmas, I am
confident that would not have happened, and that would
have been grossly unfair not only for the grandparents; it
would have been unforgivabl e for the children. That's
where the concern is.
(Notes of Testimony, Custody Hearing 1/6/17 (hereinafter "N.T. 1/6/17") at 176)
(emphasis added).
Paternal Grandparents were intimately involved in raising M.K., as well as E.K.,
seeing the family at least twice a month until April 2016. After that date, Mothercut off all
contact with Father's family, including Paternal Grandparents. When the supervised
visitation began at ABC House, Paternal Grandparents expressed an interest in seeing
5 See Order of February 15, 2017 at para. 8.
Page 11 of 14
the children, and were willing to pay the fee to do so because it had been so long.
Unfortunately, Mother did not agree, and admitted that she refused to allow Paternal
Grandparents to have visitation. (Notes of Testimony, Emergency Hearing 12/9/16
(hereinafter "N.T. 12/9/16") at 54-55, N.T. 1/6/17 at 47). Mother states that she refused
because there was no court order in place allowing them to have visitation. (N.T. 12/9/16
at 54). Further, since Father resides with Paternal Grandparents, her concern is that
there is no guarantee Father will not be involved with the visit. (N.T. 1/6/17 at 47-48).
Mother testified that she does not want Paternal Grandparents to have unsupervised
visitation in order to ensure Father complies with his supervised visitation. (lg_,_)
After hearing the testimony and reviewing the evidence, this Court found no
rational explanation for why Paternal Grandparents should not have unsupervised
contact, and should be required to pay a fee in order to see the children at ABC House.
Recognizing Mother's concern that Father could potentially have unsupervised contact
with the children during Paternal Grandparent's visitation, this Court entered the provision
above, permitting Paternal Grandparents to have visitation in a publicplace. We did not
order Paternal Grandparents to have visitation on any particular day, or for any particular
period of time. We merely made it known that Mother should afford Paternal
Grandparents unsupervised contact of the children in a public place in lieu of supervised
visitation at ABC House. After Father's criminal charges are resolved, this Court
anticipates that there will be another hearing in this matter wherein we will have to
determine a final custody order.
Lastly, Appellant alleges that this Court erred in requiring Mother to obtain the
explicit consent of both parties before removing the children from Pennsylvania. She
Page12of14
alleges that this provision is an unconstitutional restriction on her right to travel. We
disagree.
Throughout the course of the proceedings, it became obvious that Mother is
anxious to move with the children to Utah. This Court believes Father's fear of being cut
off from his children if Mother is permitted to relocate is a very real fear. As such, we
included the provision in our Order so that Mother does not abscond with the children
while Father's criminal charges, as well as this appeal, are pending. The provision does
not restrict Mother's right to travel. It merely makes Mother go through the proper
channels in order to do so with the children. If Mother wants to travel with the children,
she must seek Father's express permission to do so. If Father refuses and Mother feels
he did so in bad faith, she can petition the Court and request permission to travel and the
Court would be favorably inclined to do so. Further, Mother is free to travel anywhere in
the world without Father's permission as long as the children remain in Pennsylvania.
Therefore, this Court did not err or abuse its discretion when requiring Mother to obtain
the explicit consent of Father before removing the children from Pennsylvania.
As previously stated, Appellant's remaining allegations in her twelve (12) page
Statement are merely complaints of dissatisfaction with this Court's ruling. In addition to
counsel's characterization and opinion of the evidence, Appellant fails to cite to the
specific testimony and/or evidence that would support her allegations. In fact, after
. reading the Statement, this Court is unsure whether Appellant was in the same courtroom
that we were as the Statement includes a number of completely inaccurate statements of
fact. It appears Appellant is using the "throw everything at the wall and see what sticks"
method with this appeal. In custody proceedings, the trier of fact has the absolute
Page 13 of 14
discretion to determine witness credibility and the weight to be afforded to the evidence.
This Court did so, explained the reasons for doing so, and cited in the transcript where
those reasons can be found - yet Appellant is still unhappy. However, Appellant's
unhappiness does not mean this Court abused its discretion.
Accordingly, we ask the Superior Court to affirm our Memorandum Opinion and
Order of February 15, 2017, and dismiss the appeal in this matter.
Respectfully submitted:
William T. Tully, J.
.'>4
DISTRIBUTION:
Robert M. Sakovich, Esquire, 2000 Linglestown Road, Suite 106, Harrisburg, PA 17110
Margaret M. Simok, Esquire, 3304 Market Street, Camp Hill, PA 17011
Court Administration
FILE
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