P.J.A. v. H.C.N. ( 2016 )

J-S12044-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
P.J.A., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
H.C.N., :
:
Appellee : No. 2395 EDA 2015
Appeal from the Order July 7, 2015,
in the Court of Common Pleas of Lehigh County,
Domestic Relations, at No(s): 2007-FC-0427
BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 18, 2016
P.J.A. (Father) appeals from the order entered July 7, 2015, which,
inter alia, modified provisions of a prior custody order entered with respect
to P.C.A. (Child). Upon review, we affirm in part and reverse in part.
Father and H.C.N. (Mother)1 met in New York in May 2005 and were
married in February 2006. Child was born in August 2006. Father, Mother,
and Child moved into a newly-constructed home in October 2006, and
Father lost his job in March 2007. The parties separated in late-March 2007.
“There was a rash of incidents over a brief period in March 2007, which
1
With respect to the parties, we observe the following. Mother is an
attorney licensed to practice law in Arizona. Throughout the course of the
litigation, she has alternated between being represented by counsel and
proceeding pro se. For this appeal, she is pro se. Father has also been
represented by counsel and appealed pro se at different times in this
litigation. For this appeal, he is represented by counsel.
*Retired Senior Judge assigned to the Superior Court.
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involved calls to police by both parties, arguments, claims of physical abuse
by Mother against Father and claims of drunkenness by Father against
Mother.” Trial Court Opinion, 5/15/2009, at ¶ 20. “Each party initiated
vindictive, immature and selfish acts against the other party beginning
primarily in late 2006 and then throughout the next two years.” Id. at ¶ 21.
On April 5, 2007, after a hearing before the trial court, it entered the
first of several interim custody orders. That order provided, in relevant part,
that Father would have temporary physical and legal custody of Child.
Mother would exercise partial physical custody on a daily basis for a
minimum of three hours per day as coordinated by the parties. On May 4,
2007, the parties agreed to a new custody schedule, in which Mother’s
periods of partial physical custody were set forth in a more specific manner.
On November 20, 2007, the parties agreed to an interim order of court that
provided Mother and Father shared legal and physical custody of Child.
On January 22, 2008, Father and Mother agreed to a final custody
order. That order provided, in relevant part, that the parties shall have
shared legal custody with primary physical custody to Mother subject to
Father’s exercise of partial physical custody at specified times, including
alternate weekends, and other dinner and overnight visits. That order also
included a holiday schedule.
On March 11, 2008, Father filed a petition for modification of custody.
That petition was followed by several petitions for sanctions against Mother.
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On January 16, 2009, Mother filed a petition for relocation. The trial court
held hearings on March 23 through 26 and April 2, 2009 on these petitions.
On May 15, 2009, the trial court entered an order denying Mother’s petition
for relocation. The trial court also ordered that Mother and Father shall have
shared legal custody as well as equal, shared physical custody of Child.
After the entry of this order, the parties continued to proceed with
their divorce, as well as litigate numerous petitions for special relief,
sanctions, and contempt over disputes about a wide range of issues for Child
including, but not limited to: out-of-country travel; visitation with
grandparents; Child’s aggressive behavior; information about Child’s health
and doctors; the custody schedule for Halloween; and selection of an after-
school program. While many petitions were ruled upon, others were left
unresolved.
On March 27, 2013, the trial court entered an order and opinion, by
agreement of the parties, that it would conduct two rounds of hearings and
then enter an order to resolve “all of the issues raised in these unresolved
pleadings.” Trial Court Opinion, 3/27/2013, at 2.2 In its order and opinion
issued after those hearings, the trial court addressed the statutory factors
2
This order and opinion were authored by Judge Ford. Around March 2013,
Judge Ford, who was the judge on this case ab initio and for all proceedings,
was transferred to a different division of the trial court. Judge Reichly was
assigned the case. He authored all subsequent orders and opinions in this
case.
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set forth in 23 Pa.C.S. § 5328(a). Notably, the trial court continued the joint
legal and physical custody arrangement. The parties then continued their
practice of filing numerous petitions for special relief, contempt, and
sanctions.
On March 31, 2014, Mother filed a petition for sanctions and a
complaint to modify custody. Specifically, she requested that the trial court
grant primary physical custody to her. Mother filed an amended petition on
May 9, 2014, averring that Father surreptitiously registered Child to play
travel soccer in violation of a court order. That petition also averred that
Father enrolled child in Holy Communion preparation (PREP) classes in
violation of a court order. Thus, Mother requested both primary physical
custody and sole legal custody of Child.
On June 3, 2014, Father filed answers to both petitions, a counter-
petition, and a petition for contempt. Father also requested primary physical
custody of Child.
Hearings were held on October 6 to 8, 2014, April 27 through May 1,
2015, and May 7 to 8, 2015.3 On July 7, 2015, the trial court entered an
order granting in part and denying in part the petition for modification. After
an analysis of the statutory factors, the trial court continued the parties’
shared legal and physical custody arrangement. The trial court also entered
3
Both parties were pro se for these petitions and hearings.
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more specific orders with respect to Child’s religious upbringing and
participation in sports.
Father timely filed a notice of appeal and concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i), and the trial
court filed an opinion.
On appeal, Father asks this Court to consider the following: “Does the
lower court’s custody order further the best interests of [Child]?” Father’s
Brief at 4. Specifically, Father sets forth four issues for our review:
A. The trial court erred by substantially limiting Father’s ability
to present his case.
B. Even if remand is not warranted, the record establishes that
Father should have been awarded primary physical custody.
C. The lower court’s restriction of Father’s ability to practice his
religion with [Child] is contrary to this Court’s precedent.
D. There is no evidence in the record to suggest that [Child’s]
participation in sports, or Father’s choice to coach his son, is
detrimental to [Child].
Id. at 10, 13, 14, 16 (unnecessary capitalization and bold-type omitted).4
4
Father’s brief violates Pa.R.A.P. 2116(a), which provides that “[n]o
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.” “[A]s a practical matter, this Court
[dismisses] appeals for failure to conform to the Rules of Appellate
Procedure only where the failure to conform to the Rules results in the
inability of this Court to discern the issues argued on appeal.” Kern v. Kern,
892 A.2d 1, 6 (Pa. Super. 2005). Despite Father’s one question statement
of questions involved, which expands to four separate questions in his
argument section, we will not dismiss Father’s appeal for failing to conform
to Pa.R.A.P. 2116(a). Although we do not condone this format, we are able
to discern Father’s arguments.
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We set forth our well-settled standard of review when considering a
child custody order.
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.
E.R. v. J.N.B., __ A.3d __, 2015 WL 8717198, at *5 (Pa. Super. 2015)
(quoting V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations
omitted)).
“When a trial court orders a form of custody, the best interest of the
child is paramount. The factors to be considered by a court when awarding
custody are set forth at 23 Pa.C.S. § 5328(a).” E.R., 2015 WL 8717198, at
*5-6 (citations and quotations omitted).
(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.
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(2) The present and past abuse committed by a
party or member of the party’s household, whether
there is a continued risk of harm to the child or an
abused party and which party can better provide
adequate physical safeguards and supervision of the
child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based
on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against
the other parent, except in cases of domestic
violence where reasonable safety measures are
necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the
child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
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(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. § 5328(a).
Father argues that the trial court’s “evaluation of the custody factors
was improperly skewed in favor of Mother because the court precluded
Father from presenting compelling, relevant evidence, the consideration of
which would have resulted in a different consideration of the custody
factors.” Father’s Brief at 10. Thus, Father requests that this Court reverse
and remand “to allow Father to present this evidence.” Id. at 13.
Father’s chief complaint in this regard is the trial court’s limitation of
testimony to events occurring after the entry of the November 20, 2013
custody order.5 The trial court stated that it was “not going to go back over
5
To provide background on what led up to the trial courts limitation, we
offer the following summary. On April 5, 2012, Father filed a petition for
contempt alleging that Mother deprived Father of his custodial time such
that he was unable to trick-or-treat with Child on October 28, 2011
(Halloween 2011). Halloween had been a source of contention each year,
and in December 2010, the trial court ordered that Father was to have Child
for Halloween 2011. Halloween 2011 would be celebrated on October 28,
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ancient history from four years ago making a custody determination today.”
N.T., 10/6/2014, at 167. Further, it would not deal with “an attempt to go
over a record which could have been or was created before Judge Ford years
ago.” Id. at 171-72.
“[T]he admission or exclusion of evidence is within the sound
discretion of the trial court. In reviewing a challenge to the admissibility of
evidence, we will only reverse a ruling by the trial court upon a showing that
it abused its discretion or committed an error of law.” R.K.J. v. S.P.K., 77
A.3d 33, 41 (Pa. Super. 2013) (citations and quotations omitted).
The trial court explained:
2011, during Child’s afternoon kindergarten class and for trick-or-treating
that evening. Father was to have custody from Friday, October 21, 2011 to
Friday, October 28, 2011. Mother’s father died on October 20, 2011. So as
not to impede Father’s custodial time, Mother asked her mother that she
wait a week for the funeral. Mother then scheduled a flight to the funeral for
herself and Child for the afternoon of October 28, 2011, several hours before
her custodial time began. Mother notified Child’s school he would be missing
afternoon kindergarten, and sent Father an e-mail at 1:54 p.m. that
afternoon to tell Father that she was taking Child to the funeral. See
Father’s Petition for Contempt, 4/5/2012; N.T., 1/25/2013, at 180-87.
Father did not receive that e-mail prior to arriving at the school where he
found out Child was not there. On March 27, 2013, the trial court dismissed
the petition for contempt because Father waited six months to file it.
At the October 6, 2014 hearing, Mother called Antoinette Clark to
testify. She is a friend of Father and the mother of Child’s friend. Father
asked her about a conversation between the two of them that occurred in
the summer of 2014 where the topic of Halloween 2011 was raised. Mother
objected. The trial court ruled that the testimony was inadmissible as
irrelevant. N.T., 10/6/2014, at 166-67.
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It is significant to note that the parties in this case have a
longstanding history of endeavoring to re[-]litigate issues
previously addressed. Both parties are guilty of attempting to
bring up past issues at hearings under the guise of
demonstrating the other party’s pattern of behavior over the
years. The [trial court] is familiar with the parties’ history and
has communicated that to them. Moreover, Judge Ford has
issued several orders and opinions addressing various issues the
parties have raised over the years. It would not be productive to
retread old ground in the form of testimony when there are
volumes of Notes of Testimony thoroughly covering the parties’
grievances with one another.
Trial Court Opinion, 8/26/2015, at 5 n. 5.
Based on the foregoing, it is evident that the trial court was very
familiar with the facts of this case from the volumes of transcripts, orders,
and opinions already issued in this case. The custody of Child has been
litigated essentially since Child’s birth, and we agree with the trial court that
it would serve no legitimate purpose to rehash every issue with every
petition to modify custody. Moreover, because the trial court was aware of
the incidents that would affect the aforementioned custody factors, even if
they were not specifically litigated during the most recent ten-day custody
trial, we cannot see how the trial court committed an error of law or abused
its discretion in weighing the custody factors on the record it had.
Accordingly, Father is not entitled to a remand for a new custody hearing
which includes this testimony, nor is he entitled to a re-weighing of the
factors on this basis.
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Father next contends that the trial court erred with respect to factor
13, which requires the trial court to assess “[t]he level of conflict between
the parties and the willingness and ability of the parties to cooperate with
one another….” 23 Pa.C.S. § 5328(a)(13). Father contends that the trial
court should not have found this factor to be neutral, but should have been
in his favor because of Mother’s treatment of paternal grandmother.6
Instantly, the trial court set forth a thorough analysis of all of the
factors. See Trial Court Opinion, 7/7/2015, at 3-12. It determined that of
the seventeen factors, nine were neutral; three were not relevant or
considered; four weighed slightly in favor of Mother; and one weighed in
favor of Father. We observe that even if the trial court found that factor 13
weighed in Father’s favor, rather than being neutral, we are not convinced it
would have tipped the scales such that the trial court would have granted
Father primary physical custody.
Additionally, with respect to factor 13, the trial court offered the
following detailed analysis:
Both parties are guilty of being so obsessed with finding
flaws in the other’s parenting skills that the [c]ourt is amazed
the parties’ behavior has not had a more detrimental effect on
[Child]. From [Mother’s] perspective, [Father] has deliberately
6
“[Child’s] paternal grandmother often picked up [Child] from school and
[Child] was with her on numerous occasions when [Father] got home from
work. [Mother] engaged the services of private investigators to spy on
[Father] and [paternal grandmother] in order to prove that [Father] was not
personally exercising some of his periods of physical custody.” Trial Court
Opinion, 8/26/2015, at 14-15.
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enrolled [Child] in athletic activities which so dominate [Child’s]
time out of school that [Mother] felt she was not able to
schedule any events herself with her son. [Mother] accused
[Father] of scheduling birthday parties for [Child] giving her little
advance notice. She accused [Father] of scheduling medical
appointments for [Child] at inconvenient times without
consulting her, of failing to give [her] sufficient notice he was
going to be late picking up [Child] for weeknight dinner visits,
and for dishonestly telling [Child’s] school he was only a few
minutes away in order to allow for release of [Child] to paternal
grandmother when in fact [Father] is consistently out of the area
at the time he asserted he would assume physical custody of
[Child]. [Mother] has accused [Father] of manipulating his
employment status to falsely claim he was available to care for
[Child] when in fact he was not, of attempting to encourage
[Child] to provide information about [Mother’s] private life, and
for encouraging [Child] to disrespect [Mother’s] decision-making
and the legitimacy of her parenting decisions.
Alternatively, [Father] alleges [Mother] has engaged in
emotionally aberrational behavior. He accused [Mother] of being
mentally unbalanced and refusing to co-parent with [him] for
[Child’s] benefit. Often what [Father] characterizes as an
unwillingness to co-parent is a lack of agreement by [Mother]
with what [Father] has unilaterally determined is in the best
interests of [Child], such as [Child] being baptized in a religious
faith significantly different from [Mother’s], enrolling [Child] in
athletic teams without consulting [Mother] or gaining her assent,
and insisting [Child] attend practices and games on [Mother’s]
custodial time. [Father] emotionally and passionately described
his pride in his son’s athletic abilities at such a young age, and
how he is confounded by [Mother’s] unwillingness to enable to
[Child] to fulfill his athletic potential. A corollary objection from
[Father] is [Mother’s] unwillingness to allow [Father] to coach
[Child] in every sport in which he participates, which [Mother]
views as an underhanded method by [Father] to spend time with
[Child] even during those days and times when [Child] is
supposed to be in [Mother’s] custody.
As alluded to above, because of the hostility between the
parties, the [trial court] is compelled to resort to extraordinary
delineation of the boundaries of each parent’s custodial periods
and responsibilities in order to reduce the possibility of more
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conflict between the parties. Such limitations include prohibiting
[Father] from participating as a coach on more than one of
[Child’s] athletic teams per school calendar year, and precluding
[Father] from having [Child] accepted into [Father’s] religious
faith without [Mother’s] written consent. [Mother] will be
precluded from assuming custody at any time when [Father] is
not personally available and present to take custody of [Child]
for a weeknight dinner visit or from school, and will be prohibited
from stalking the paternal grandmother when she fills in for
[Father] to pick up [Child] from school. [Mother] is encouraged
to accommodate [Child’s] interest in participating in sports and
Catholic religious services.
Trial Court Opinion, 7/7/2015, at 9-11.
It is evident that the trial court was aware of and accounted for
Mother’s behavior in stalking paternal grandmother as Father now argues.
However, the trial court weighed that behavior with Father’s behavior and
concluded that this factor was neutral. Father’s arguments largely amount
to a contention that the trial court should have interpreted certain evidence
in his favor or otherwise challenge the weight the trial court attributed to the
evidence and its credibility determinations, which we may not disturb on
appeal. See R.L.P. v. R.F.M., 110 A.3d 201, 208 (Pa. Super. 2015). Thus,
Father is not entitled to relief on this issue.
Father next argues that the trial court has interfered with Father’s
ability to practice Catholicism with Child. Father’s Brief at 14-16. We provide
the following background on this issue.
Father is a practicing Catholic. Mother was raised as a Lutheran and is
currently a member of the United Church of Christ. The issue of Child’s
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religious upbringing has been in dispute from the inception of this custody
action.
The trial court’s first custody order provided the following with respect
to baptism of Child. Father “agrees that he will not make any major
decisions without consulting and the consent of [Mother].” Trial Court Order,
4/11/2007, at 3 (unnumbered). However, the following ensued shortly
thereafter.
24. Notwithstanding a specific court prohibition, on April 26,
2007, Father registered [his family] at St. Joseph the Worker
Church in Orefield, Pennsylvania. He registered [Child] for
Catholic baptism. He registered for the August 4, 2007,
baptismal workshop. Then he scheduled [Child’s] baptism for
late 2007. He chose the Godparents for [Child]. All of this was
done without the knowledge and consent of Mother even though
she shared legal custody with him at the time.
25. On December 2, 2007, Mother, with her friend, Colleen
Geiger, went to St. Joseph’s church in the early afternoon. They
saw vehicles with New Jersey plates.[7] Inside the church was
Father with [Child] and party assembled for [Child’s] baptism.
[Child] was baptized.
Trial Court Opinion, 5/15/2009, at ¶¶ 24-25 (footnote added).
A subsequent custody order provided that the “parties have agreed
that [Child] may be raised in both the Catholic and [other Christian] faiths
until such time as [Child] is old enough to choose a faith for himself.” Trial
Court Order, 2/1/2008, at 15. The next custody order provided that
[e]ach parent may provide religious instruction to [Child] during
each parent’s respective period of custody; however, neither
7
Father’s parents and family resided in New Jersey at that time.
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parent shall denigrate the religion of the other parent nor
discourage [Child] from participating in it. It is appropriate that
the parental approach to religious issues in respect to [Child’s]
religious training and practice be discussed in therapy.
Order, 5/18/2009, at 6.
These issues arose once again when it was time for Child to be
enrolled in preschool. Father wished for Child to be enrolled for pre-school
at St. Joseph the Worker Catholic Church. The trial court ordered that Child
be enrolled at a different preschool that was not associated with any religion.
When Child reached elementary school age, Father again petitioned the trial
court to enroll Child at St. Joseph the Worker Catholic School. On March 8,
2011, the trial court ordered that Child be enrolled at public school for
kindergarten. Father filed a notice of appeal from that order. The trial court
authored an opinion, which stated, inter alia, that “for each parent to be on
equal footing in providing religious instruction for [Child], [Child] should not
be placed in a Catholic curriculum particularly at the parish where the
baptism incident took place.” Trial Court Opinion, 4/20/2011, at 4.8
On September 9, 2013, Father enrolled Child in a program that “is a
prerequisite to [Child] receiving Holy Communion or being an altar server.”
Trial Court Opinion, 11/20/2013, at 2-3. Father did not inform Mother of
Child’s enrollment in this program. On October 9, 2013, Father filed a
8
Father subsequently discontinued that appeal voluntarily.
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petition for special relief to allow Child to practice his religion with Father.
The trial court denied Father’s petition.
On May 9, 2014, Mother filed a petition for contempt in which she
averred that Child “is now enrolled in self-study classes necessary to
participate in First Holy Communion.” Amended Petition for Contempt and
Complaint to Modify Custody, 5/9/2014, at ¶ 17. Mother requested the trial
court to preclude Child from participating in First Holy Communion “in home,
privately or during mass, … in any way shape or manner.” Id. at ¶ 18.
Father responded that he “enrolled [Child] to participate in [PREP]
during only Father’s custodial weeks, with no impact to Mother’s custodial
time.” Father’s Answer to Amended Petition for Contempt, 6/3/2014, at
¶ 15. Father argued that this was not a violation of the prior custody order.
Thus, the underlying facts are not in dispute; rather, the issue before the
trial court was whether it was a violation of the custody order for Child to be
enrolled in PREP even if it did not impede Mother’s custodial time. The trial
court modified the custody order to add the following with respect to Child’s
religious upbringing:
g) Both parents are prohibited from enrolling [Child] in any
catechism or religious training without the written or e-mailed
consent of the other parent or further Order of Court.
h) [Child] is precluded from receiving communion at any
religious service without the written or e-mailed consent of each
parent not less than 48 hours prior to the religious service.
Trial Court Order, 7/7/2015, at 19-20.
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We now turn to an examination of the case law in this area. Both
Father and the trial court point to this Court’s holding in Zummo v.
Zummo, 574 A.2d 1130 (Pa. Super. 1990). See Father’s Brief at 15; Trial
Court Opinion, 8/26/2015, at 10.9
In Zummo, Mother was Jewish and Father was Catholic, and at the
time of the divorce, the children were eight, four, and three years’ old.
During the marriage, the family participated fully in Judaism. While the
father participated in Catholicism “sporadically,” the children were not
exposed to it in any way. Id. at 1141 (emphasis eliminated). When the
parents separated, the father stopped bringing the oldest child to religious
school during his custodial time (the other two children were not yet old
enough to start). The parents otherwise agreed on much in the way of
custody, but asked the trial court to determine “to what extent father should
be obligated to see to the attendance of the children at Jewish services
during his visitation periods and whether father should be permitted to take
the children to Roman Catholic services to the extent he attends on his
visitation weekends.” Id. (emphasis eliminated). The trial court held that
Father must take the children to religious school even during his periods of
9
We observe that Zummo’s precedential value is in question. In this three-
judge panel decision, one judge wrote for the majority, one concurred in the
result, and one dissented. This court has cited it as authoritative. See
Hicks v. Hicks, 868 A.2d 1245 (Pa. Super. 2005). Our Supreme Court has
noted that the lead opinion in Zummo did not garner another vote, thus
depriving it of precedential effect. Shepp v. Shepp, 906 A.2d 1165, 1178
n.6 (Pa. 2006)(Baer, J. dissenting).
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partial custody; however, Father was not permitted to take the children to
“religious services contrary to the Jewish faith[.]” Id. at 1142. Father
appealed from that order.
On appeal, this Court held “that each parent must be free to provide
religious exposure and instruction, as that parent sees fit, during any and all
period of legal custody or visitation without restriction, unless the challenged
beliefs or conduct of the parent are demonstrated to present a substantial
threat of present or future, physical or emotional harm to the child in
absence of the proposed restriction.” Id. at 1154-55. “[T]his standard
requires proof of a ‘substantial threat’ rather than ‘some probability.’” Id. at
1155. This Court noted further that “while the harm involved may be present
or future harm, the speculative possibility of mere disquietude,
disorientation, or confusion arising from exposure to ‘contradictory’ religions
would be a patently insufficient ‘emotional harm’ to justify encroachment by
the government upon constitutional parental and religious rights of parents,
even in the context of divorce. Id. Accordingly, while this Court affirmed the
order with respect to the father’s requirement to take the children to
religious school, it reversed with respect to taking the children to the father’s
services.
In the instant matter, the trial court concluded that Zummo was
inapplicable, reasoning that “Zummo applies in cases where one party is
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prohibited from exposing his or her child to that party’s religion.” Trial Court
Opinion, 8/26/2015, at 11.
In this case, both parents are expressly permitted to expose
[Child] to their respective faiths, Catholic and [United Church of
Christ], during their respective periods of custody. On the issue
of religious training, such as Sunday school, the parties must
agree on [Child] receiving training from one institution or the
other. This is because, for example, a Catholic cannot receive
communion in a Lutheran church. These denominations are two
branches of Christianity, but advancement in one is to the
exclusion of the other. Because the parties share legal custody,
the decision to allow [Child] to receive religious sacraments in
one faith or the other is a joint determination. If they cannot
come to an agreement, the impact of the Court’s order is
consistent with Zummo, to permit both parents to expose
[Child] to their respective faiths. When [Child] reaches the age
of majority, he would be in a position to determine for himself
whether to receive additional sacraments such as Confirmation
in either church. For the time being, the Court’s decision is to
allow for appropriate exposure to the two faiths. To the extent
the parties can agree on [Child’s] receipt of religious training,
there are no legal obstacles preventing him from pursuing the
appropriate educational and spiritual requirements of the faith
upon which they agree.
Id. at 11-12.
Based on our review of the case law subsequent to Zummo, we
disagree with the trial court’s interpretation. In Shepp, our Supreme Court
weighed in on this issue. In that case, while both parties were Mormon, the
father was excommunicated from the church because of his fundamentalist
belief in polygamy. When the parties divorced, the father wished to teach
their daughter about plural marriage, in the event that such a situation arose
in his family. The mother testified that it was the father’s belief in polygamy
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that caused the divorce. The trial court directed that the child continue her
Mormon upbringing, but prohibited the father from teaching her about
polygamy, particularly because the practice of polygamy would result in the
commission of a crime.
On appeal, this Court affirmed the order of the trial court, reasoning
that “that the teaching of plural marriage constituted a grave threat.” Id. at
1173. However, our Supreme Court reversed that order, and offered the
following:
By their very nature, decisions involving child custody must
focus on the character and conduct of the individual parents and
children involved. Accordingly, there may be instances where
restricting a parent from teaching a child about a sincere
religious belief involving illegal conduct is appropriate. However,
we emphasize that the illegality of the proposed conduct on its
own is not sufficient to warrant the restriction. Where, as in the
instant matter, there is no finding that discussing such matters
constitutes a grave threat of harm to the child, there is
insufficient basis for the court to infringe on a parent’s
constitutionally protected right to speak to a child about religion
as he or she sees fit.
Id. at 1173-74. See also Hicks, supra (holding that a parent being upset
at the prospects of the child being baptized in a different religion is not proof
of a substantial risk of harm to the child so as to permit the court to
interfere with a parent’s free exercise of religion).
We now turn back to the instant matter. In this case, while each
parent is permitted to expose Child to his or her respective religion, the trial
court specifically limited the parent’s ability to educate Child in his or her
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religion. Such a limitation is contrary to our case law where there is no
indication of a “substantial threat of present or future, physical or emotional
harm to the child.” Zummo, 574 A.2d at 1154. Accordingly, the trial court
erred in concluding that Child was not permitted to be educated or
participate in the sacraments at the Catholic church. Consistent with
precedent, both parents shall be permitted to educate Child in and practice
his or her religion with Child during their respective periods of custody, so
long as there is no substantial threat of present or future physical or
emotional harm to Child.
Finally, Father argues that the trial court erred with respect to Child’s
participation in sports, as well as Father’s ability to coach him in those
sports. Father’s Brief at 16-21. We provide the following background.
The parties have been squabbling over Child’s participation in sports
and other extracurricular activities for a long time. On February 1, 2008,
the trial court order required the parties to “consult with one another
regarding any extracurricular activities that affect [Child’s] time with the
other parent.” Trial Court Order, 2/1/2008, at 17-18.10
On August 14, 2012, Father filed a petition for special relief to allow
Child to play team soccer. This petition arose out of a dispute between
Mother and Father about then six-year-old Child’s interest in playing team
10
We note that at the time of this order, Child was only eighteen months
old.
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soccer. On September 11, 2012, the trial court ordered that Child shall be
enrolled on a soccer team. Subsequently, the trial court ordered that Child
participate in organized baseball, basketball, and soccer only through “the
public youth association for his geographic area.” Trial Court Opinion,
3/27/2013, at 13. That order further provided that “the parties shall
cooperate on enrollment and [Child’s] participation; and the parties shall
only enroll [Child] in parochial or private club sports upon the parties’
written agreement.” Id.
In her amended petition for contempt and complaint to modify
custody, Mother alleged on May 7, 2014, without her knowledge or consent,
Father “unilaterally and covertly registered [Child] for a traveling soccer
team whereby the parties’ [sic] would be required to travel with [Child] to
Delaware County and other distant counties….” Amended Petition,
5/9/2014, at ¶ 9.11 Mother averred that travel soccer was both more costly
and more time consuming. Tryouts were to occur on May 7, 2014 and May
12, 2014, during Mother’s custodial time. Mother immediately informed
Father she was not in agreement with travel soccer, specifically because it
11
The two types of youth soccer discussed here are recreational (rec) soccer
and travel soccer. Rec soccer takes place only during the fall, and games
and practices are all at a local field. Travel soccer requires both more time
and more expense. There is a fall season and a spring season, and an
optional indoor soccer (winter) season. Games are played in surrounding
counties and overnight travel is a possibility. The level of instruction and
competition is greater, as travel soccer teams are composed of players who
are selected for the team by a tryout process.
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would interfere with Child’s other “court-ordered extracurricular activities
such as basketball and baseball.” Id. at ¶ 12. Mother also asserted that it is
her belief that Father is coaching Child in his extracurricular activities, and
“is now utilizing his position as coach to thwart and undermine Mother’s
parenting time with [Child].” Id. at ¶ 20. In particular, Father, as Child’s
baseball coach, has scheduled baseball practices during Mother’s Monday
and Wednesday dinner visits.
On June 3, 2014, Father responded with a petition for contempt. In
that petition, he set forth Mother’s repeated refusal to accommodate Child’s
extracurricular activity needs. For example, he pointed out that during the
2012 rec soccer season, Mother did not bring Child to the first game that
took place during her custodial time. Father also averred that in 2013,
Mother enrolled Child for spring baseball, but did not “mention Father’s
desire to coach his son’s team, thereby removing Father from
consideration.” Petition for Contempt, 6/3/2014, at ¶ 8.
With respect to the sports at issue in 2014, Father claims he informed
Mother of the soccer tryout process. Initially, he claimed she did not
respond to his e-mails, then he acknowledged that she wrote to him that she
was not in agreement with Child participating in the May 7, 2014 tryout.
Father then wrote an e-mail to Mother stating, “Why are you not agreeable
to supporting our son’s happiness?” Id. at ¶ 14. Both Mother and Father
then sent the coach copies of custody orders to explain why Child should or
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should not be permitted to play travel soccer. Mother did not take Child to
the second day of tryouts; nevertheless, Child was selected for the team.
Mother informed the organization that Child would not be participating.
Father requested that the trial court order that Child be permitted to
participate in 2014 travel soccer.
The trial court then heard extensive testimony about the differences
between travel soccer and rec soccer. See N.T., 10/6/2014, at 35-137
(testimony of David Dean, Child’s former rec soccer coach and current coach
of the travel team); Id. at 121-142 (testimony of Marcus Arnfeldt, co-coach
of the travel team). The trial court also heard testimony from friends of
both parties about the parties’ behavior at sporting events. Finally, the trial
court heard the thoughts of both Mother and Father on these issues. Based
on the foregoing, the trial court ordered that by July 15 of each year, the
“parents shall ascertain if [Child] wishes to participate in travel soccer.” Trial
Court Order, 7/7/2015, at ¶ 17(f). The trial court provided further that if
Child wished to participate in travel soccer, he would then not participate in
baseball; however, Child could participate in any extracurricular activity
upon written consent of each parent. Additionally, each parent is permitted
to coach or lead one extracurricular activity per school year. Id. at ¶ 17(e).
The trial court offered the following detailed rationale as to how it
reached these conclusions:
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This Court has had extensive opportunity to observe both
parties and has spoken to [Child], a very intelligent and
articulate eight-year-old boy, in camera to receive his input.
Father casts his various actions in a light designed to
create the appearance that they are purely intended to advance
the best interest of the child. He encourages [Child’s]
participation in various sports activities and serves as coach. He
spent an excessive amount of time offering testimony regarding
the merits of a child playing on a team and experiencing sports.
The Court accepted that testimony to the extent that there are
certain benefits for a child playing sports, such as making
friends, learning teamwork and other life lessons, and getting
exercise. However, the order entered by Judge Ford permitting
[Child] to play certain sports did [not] require [Child] to attend
every practice, game, meet, etc.
While the Court has no doubt that [Father] enjoys serving
as a coach for his son’s teams, the evidence demonstrated that
coaching also advanced [Father’s] underlying efforts to intrude
upon [Mother’s] custodial time. For example, the evidence
showed that [Father] left a voice message for [Mother]
demanding that she bring [Child] to a game on January 17, 2015
after she e-mailed [Father] to advise him that [Child] had a
birthday party to attend that day. This was during [Mother’s]
custodial weekend. When questioned whether he would send a
similar voicemail to any other parent on the team, [Father]
responded, “I don’t because they’re not my children.” [Father’s]
insistence that the applicable court order mandated that
[Mother] bring [Child] to every game and practice was both a
mischaracterization of Judge Ford’s order and a way by which to
intrude upon [Mother’s] custodial time.
[Father’s] other argument with respect to sports is that
[Child] should be permitted to live up to his athletic potential.
[Father] characterizes anything shy of that as detrimental to
[Child]. This issue manifested in the context of the parties’
dispute between enrolling [Child] in travel soccer as opposed to
the non-traveling team. [Father] argued that [Child’s] level of
skill at soccer was commensurate with the higher level of
competition associated with the traveling team. [Mother] did not
dispute this fact, but opposed [Child’s] enrollment in the travel
team for other reasons, such as cost and the attendant time
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commitment. [Father’s] sole focus on the surface is his belief
that [Child] should live up to his athletic potential to the
exclusion of other relevant considerations. However, underlying
this is [Father’s] motivation to attain additional time with his son
beyond that allocated to him in the custody order. [Father] also
regularly attempts to classify any disagreement between him
and [Mother] as a perceived violation of a court order.
[Mother], by contrast, places her focus on taking [Child] to
various non-sports activities, such as Boy Scouts, local plays,
and other activities. During her custody time, [Mother]
prioritizes these activities over sports regardless of whether it
means that [Child] is prevented by virtue of the schedule from
participating in practices or games. [Mother] argued that
[Child’s] schedule was overbooked between academic
requirements and sports participations. Taking both parties’
positions into consideration, as well as [Child’s] well-reasoned
preferences, the [court] fashioned an order that allowed [Child]
to participate in sports without giving [Father] the leeway to
infringe upon [Mother’s] custodial time.
Trial Court Opinion, 8/26/2015, at 13-14 (citations to notes of testimony
omitted).
On appeal, Father essentially argues that Child should be permitted to
play two sports in the spring: soccer and baseball. Father’s Brief at 17.
Father argues that the trial court’s order forces Child to make a choice
“between playing spring baseball and relegating himself to recreational
soccer in the fall; or playing soccer at the level he is actually qualified for (in
the fall and spring) but skipping baseball.” Id. at 17-18. Father contends
that unless Mother could prove that Child would be “harmed playing two
sports in the spring[,]” the trial court erred in its order. Id. at 19. Father
also states that the trial court erred in limiting the parties to leading or
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coaching one activity per school year. Father claims that Child is not
harmed by having Father coach; Mother can also attend all practices and
games; and, Father suggests that he does not even spend extra time with
Child when he is coaching “because he is preoccupied with coaching ten
other little boys as well.” Id. at 20.
Despite Father’s protestations to the contrary, the trial court did not
abuse its discretion in fashioning its order. Once again, Father’s arguments
largely amount to contentions that the trial court should have interpreted
certain evidence in his favor as being in the best interests of Child. The trial
court worked to create an order taking into account the preferences of both
parties, as well as Child, to create balance and ensure the best interests of
the Child. Simply because Father continues to believe that Child should play
travel soccer, along with any other sport Child wishes, does not mean the
trial court erred or abused its discretion. Accordingly, we conclude that
Father is not entitled to the relief he requests.
Before we conclude this memorandum, we feel compelled to point out
that the record demonstrates that the order of shared legal custody may no
longer be in Child’s best interests. Legal custody is defined as “[t]he right to
make major decisions on behalf of the child, including, but not limited to,
medical, religious and educational decisions.” 23 Pa.C.S. § 5322.
[I]n order to support a decision of shared [legal] custody,
the court must make a determination that the parties are
capable of cooperating, even minimally.… Such a finding is
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essential to an award of shared custody. The rationale behind
this requirement is that if the parties are unable to cooperate
minimally shared custody is unworkable and inappropriate.
However, no more than a finding of minimal cooperation is
required based on the pragmatic realization that no couple,
divorced or intact, agrees on every important decision in the
upbringing of their children. If the court intends to award shared
custody, then the order must be premised on the parties’
equality in decision-making. One of the predicates of a shared
custody order is a finding by the court that the parties are
capable of cooperating minimally.
Hill v. Hill, 619 A.2d 1086, 1089 (Pa. Super. 1993).
Instantly, the trial court itself points out over and over again the
extent to which the parties cannot agree on even the most basic issues
related to Child. The trial court recognizes that “[b]oth parties have
engaged in efforts to undermine the other. They rarely are directly
confrontational with one another, instead resorting to passive aggressive
emails and other communications.” Trial Court Opinion, 8/26/2015, at 12.
The trial court has attempted to maintain shared legal custody by creating
lengthy custody orders which go into great detail about Child’s life in order
to stem the tide of litigation that has surrounded these parties.
The record in this case reveals that such efforts have not worked. Just
one month after the custody order at issue was entered, Mother filed a
petition for contempt. A hearing was held on September 8, 2015 regarding
several issues, including travel soccer and vacation time with Child. It is
apparent that minimal cooperation does not exist between Mother and
Father. While both purport to act in Child’s best interests, the reality is that
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neither is doing so. By continuing the practice of filing petitions for
contempt and special relief on a monthly basis, the parties are asking the
trial court to act as Child’s legal custodian. This situation cannot and should
not continue.
Based on the foregoing, and the issues before us, we affirm in part
and reverse in part the July 7, 2015 order of court.
Order affirmed in part and reversed in part. Jurisdiction relinquished.
Judge Mundy concurs in the result.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2016
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