C.L. v. G.L. ( 2019 )

J-A04002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.C.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
G.S.L. : No. 2733 EDA 2018
Appeal from the Order Entered August 21, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): No. 0C1213057
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 22, 2019
C.C.L. (Mother) appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, granting Mother and G.S.L. (Father) shared legal
custody and shared physical custody of P.R.L. (Child) (DOB-1/5/12). After
our review, we affirm based on the September 25, 2018 opinion authored by
the Honorable Ourania Papademetriou, which incorporated the court’s earlier
memorandum of August 21, 2018.
C.C.L. and G.S.L. were married in 2010, and they divorced in 2016. In
October 2015, the parties executed a post-nuptial agreement, which was
incorporated into the divorce decree. That agreement provided for shared
legal and equally shared physical custody of Child. Thereafter, on November
*Retired Senior Judge assigned to the Superior Court.
J-A04002-19
23, 2016, the parties entered into a detailed temporary custody order.1
Subsequently, Mother and Father each filed custody complaints. The court
held a two-day custody hearing on August 8-9, 2018 and issued findings of
fact and conclusions of law related to the custody factors set forth in 23
Pa.C.S.A. § 5328(a). See Memorandum, 8/21/18. On August 21, 2018, the
court entered a final custody order, providing, inter alia, that the parties
continue equally shared physical custody and shared legal custody of Child.
Mother appealed. Both Mother and the trial court have complied with
Pa.R.A.P. 1925. Mother raises six issues for our review:
1. Did the trial court err in failing to create a full and complete
record in order to fully address Child’s best interests?
2. Did the trial court err in failing to address and give
appropriate weight to the testimony of Father and Father’s
girlfriend [L.K.]2 evidencing contempt and disrespect for
Mother?
3. Did the trial court err in failing to address and give
appropriate weight to the testimony and evidence presented
of Father’s inability and refusal to co-parent with Mother?
4. Did the trial court err by failing to consider Child’s emotional
wellbeing?
5. Did the trial court err in failing to consider the impact of the
new custody schedule on Child’s relationship with her only
sibling?
____________________________________________
1That order, filed on November 29, 2016, provided for shared legal custody
and a schedule of equally shared physical custody for the two weeks beginning
November 28, 2016.
2 Subsequent to the hearing in this case, Father and L.K. ended their
relationship. See Appellee’s Brief, at 7 n.1.
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6. Did the trial court err in failing to place restrictions on
Father’s travel?
Appellant’s Brief, at 16-17.
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,
considers all factors that legitimately have an effect upon the child’s physical,
intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902 A.2d 509,
512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa.
Super. 2004). Child custody actions are governed by the Child Custody Act
(“Act”), 23 Pa.C.S.A. §§ 5321–5340. Trial courts are required to consider
“[a]ll of the factors listed in section 5328(a) . . . when entering a custody
order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in
original).3
____________________________________________
3 (a) Factors.--In ordering any form of custody, the court shall determine
the best interest of the child by considering all relevant factors, giving
weighted consideration to those factors which affect the safety of the child,
including the following:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member
of the party’s household, whether there is a continued risk of harm
to the child or an abused party and which party can better provide
adequate physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating to
consideration of child abuse and involvement with protective
services).
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____________________________________________
(3) The parental duties performed by each party on behalf of the
child.
(4) The need for stability and continuity in the child’s education,
family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s
maturity and judgment.
(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make
appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another. A party’s
effort to protect a child from abuse by another party is not
evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of
a party's household.
(15) The mental and physical condition of a party or member of a
party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
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Our scope and standard of review of child custody orders are well
settled:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
First, we note that in four of her claims, issues 2, 3, 4 and 5, Mother is
essentially asking this Court to reweigh the evidence. These arguments
challenge the trial court’s credibility determinations, and would require this
Court to reassess and reweigh the evidence in Mother’s favor. It is well
established that we cannot disturb the trial court’s credibility determinations
or reweigh the evidence. See E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011)
(stating, “with regard to issues of credibility and weight of the evidence, this
Court must defer to the trial judge who presided over the proceedings and
thus viewed the witnesses first hand”); see also Robinson v. Robinson, 645
A.2d 836, 838 (Pa. 1994) (stating that on issues of credibility and weight of
evidence with regard to custody orders, “appellate courts must defer to the
findings of the trial judge who has had the opportunity to observe the
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proceedings and the demeanor of the witnesses.”). A review of the record
reveals that the trial court’s findings of fact and conclusions of law are
thoroughly supported by the ample evidence and testimony of record. See
C.R.F., 45 A.3d at 443 (stating this Court cannot reweigh evidence supporting
trial court’s determinations as long as there is evidence to support
conclusions).
Mother argues that she was “restricted” in presenting her case because
the court placed time constraints on the parties and spent the larger portion
of her brief on that issue. However, the court allowed two days for the
hearing, both parties presented multiple witnesses, and Mother presented 60
exhibits. Moreover, at the hearing, Mother did not seek additional time.
Further, contrary to her current position, at the time of the hearing Mother
agreed that it was not necessary for Child to be interviewed by the court. We
disagree with Mother’s characterizations; the court neither restricted the
parties nor failed to create a complete record. The trial court recognized the
conflict between the parties and took notice of the fact that their post-nuptial
agreement indicated that they both understood they needed to work together
for Child’s best interest.
In her final issue, Mother objects to the fact that the trial court did not
restrict Father’s travel. Again, Mother is simply not satisfied with the decision
the trial court made. The court specifically determined that it did not consider
Father a flight risk, given his extensive ties to Philadelphia and that both
Mother and Father testified that they believed travel to be beneficial to Child.
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Further, the trial court comprehensively addressed the issue of travel in her
Rule 1925(a) opinion, at pages 12-13, and we find no abuse of discretion.
After our review, we conclude the record fully supports the court’s
determination. Therefore, we conclude that the trial court did not abuse its
discretion and we defer to its custody decision. C.R.F., supra. We affirm the
custody order on the basis of the trial court’s opinion, and we direct the parties
to attach copies of the court’s opinion and memorandum in the event of further
proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/19
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Received 10/10/2018 3:28:13 Preaupetirit Cilart/EattCr1:EMPIM
Filed 10/10/2018 3:28:13 PM Superior Court2%s4raigicj
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
FAMILY COURT DIVISION
ca
ca
: Docket No. 0C1213057
C.C.L.,
Plaintiff/Appellant
v.
Superior Court of Pennsylvania
G.L., EDA 2018
: Docket No.
Defendant/Appellee
OPINION by Papademetriou, J.
September2S2018
21, 2018, in this custody matter
This is an appeal from the order entered on August
who was born on January 5, 2012. The
regarding the parties' daughter, P.L., (Child")
on August 8 and 9, 2018. On August 21,
court conducted a two-day evidentiary hearing
all claims. The court considered the testimony
2018, the court issued an order resolving
and other witnesses. The court evaluated
of Appellant ("``Mother"), Appellee ("Father"),
reviewed and considered the documents
the credibility and demeanor of all witnesses,
§
evaluated all the factors in 23 Pa.C.S.
admitted into evidence by each party, and
Mother
legal custody and shared physical custody.
5328(a). The court awarded shared
statement of errors complained of on appeal
on
filed a notice of appeal and a concise
2018 should
stated herein, the order of August 21,
September 19, 2018. For the reasons
be affirmed,
1
A. Custody Factors.
the
Opinion, filed August 21, 2018, in making
As explained in its Memorandum
considered the
shared physical custody, the court
award of shared legal custody and
§ 5328(a), giving weighted
consideration to those which
factors set forth at 23 Pa.C.S.
as follows:
clarity, the factors were considered
affect Child's safety. Reordered for
of the parties
the parties and the willingness and ability
(13) The level of conflict between another
with one another. A party's effort to protect a child from abuse by
to cooperate
or inability to cooperate with that party.
party is not evidence of unwillingness
is high level of conflict between the parties.
The Court determines that there
a
often express
engage in email exchanges which
They do not communicate well and
at various times has instructed
Mother to only
disrespect for one another. Father
Mother not to
his legal counsel and has instructed
communicate with him through
with whom
[LK.), to whom he is pre -engaged and
communicate at all with his girlfriend,
the timeliness of the
shares a residence. There have been frequent conflicts over
he
over the whereabouts
There have been frequent conflicts
provision of travel information.
over Child's
she in the other parent's custody. There have been conflicts
of Child while is
daily basis with the non-
in sleepovers and Child's communicating on a
participation
in that parent's company.
custodial parent and other persons
they have been able
the high level of conflict between the parties,
Notwithstanding
her school and medical
together in Child's best interest, such as choice of
to work
between the parties has
The Court determines that the likelihood of conflict
treatment.
addressed and
its order of August 21, 2018, in which the Court has
been reduced by
travel,
areas of conflict between the parties, including international
resolved the primary
2
with the non-custodial parent, and scheduling of Child's extracurricular
communication
activities.
2015
postnuptial agreement of October 13,
As recognized by the parties in their
and cooperate
possess the ability to communicate
("PNA"), they each "agree that they
of
promoting [Child's] best interests." PNA at II 12.7. The avenue
with each other in
Family Wizard,
between the parties has now been limited to use of Our
communication
situation. To the extent that
the ability to cooperate has
with the exception of an emergency
the Court expects that the level
of conflict between
diminished in the past several years,
to the schedules
will greatly lessen as they and Child acclimate themselves
the parties
order.
and provisions of the August 21st
and continuing contact
to encourage and permit frequent
(1) Which party is more likely
party,
between the child and another
to communicate with the
party. Both parties permit Child
neither
than Mother.
parent, although Father has been somewhat more restrictive
non -custodial
they each "realize that it is
by the parties in their postnuptial agreement,
As recognized
towards both
healthy development that she feel good about and loving
critical for [Child's]
goal." PNA at
both parents play a major role in the achievement of this
parents, and that
¶j 12.15.
child.
duties performed by each party on behalf of the
(3) The parental
Child has been in their
have performed all parental duties while
Both parties
respective custody.
in the child's education,
family life and community
stability and continuity
(4) The need for
life.
3
that he,
Center City Philadelphia neighborhood
Father remains living in the same
to attend the school
the family was intact. Child continues
Mother, and Child lived in when
apartment building.
several blocks from Father's current residence in a large
located
a home in the East Oak Lane
section of Philadelphia in
Mother has recently purchased
of each girl.
reside when Mother has custody
which she, Child, and Child's half-sister
in the new community, and the
home is conducive to
Child have forged ties
Mother arid
size and ample outdoor space.
enhanced family life given its large
(5) The availability of extended family.
live in the Fishtown
extended family lives in India. The parents of [L.K.]
Father's
established a relationship with Child.
section of Philadelphia and have
live in various
State, and she has siblings who
Mother's parents live in New York
family.
and Child often visit Mother's
states with their children. Mother
(6) The child's sibling relationships.
years old, eight
has a half-sister, Mother's daughter, who is currently 14
Child
live together when Mother
older than Child. They have a close relationship and
years
at the same time.
has custody of both of them
the child, based on the
child's maturity and
-reasoned preference of
(7) The well
judgment.
regarding Child's
was not interviewed, and the Court makes no determination
Child
preference.
in cases of
to turn the child against the other parent, except
(8) The attempts of a parent to protect the child
where reasonable safety measures are necessary
domestic violence
from harm.
neither parent should
by the parties in their postnuptial agreement,
As recognized
in any way denigrate the
other
anything in front of or to [Child] that would
"say or do
4
prohibition has been eroded in the past
parent." PNA at 1112.14. To the extent that this
to this
the parties will conform their behavior
several years, the Court expects that
the August
acclimate themselves to the provisions of
fundamental tenet as they and Child
2151 order.
and nurturing
(9) Which party is more likely to
maintain a loving, stable, consistent
emotional needs.
with the child adequate for the child's
relationship
recognized by the parties in their postnuptial
This factor favors neither party. As
of love and
perceives both parents as sources
agreement, they each "agree that [Child]
extent that
relationships." PNA at 11 12.6. To the
security and wishes to continue both
in the past several years, the Court
expects that
this sense of agreement has diminished
as they and
appreciation of Child's emotional needs
the parties will develop a greater
21st order.
schedules and provisions of the August
Child acclimate themselves to the
developmental,
(10) Which party is more likely to
attend to the daily physical, emotional,
child.
educational and special needs of the
party has attended to Child's daily
This factor favors neither party. Each
Child has been
educational and special needs while
physical, emotional, developmental,
in each party's respective custody.
of the parties.
(11) The proximity of the residences
driving distance apart.
live approximately 25 to 40 minutes
The parties currently
child-care
availability to care for the child or ability to make appropriate
(12) Each party's
arrangements.
to make appropriate
party is available to care for Child and has the ability
Each
is self-employed in the
real estate business and Mother
child-care arrangements. Father
is a self-employed interior designer.
of a party's household.
abuse of a party or member
(14) The history of drug or alcohol
5
in -patient rehabilitation
Mother has a history of alcohol abuse. She attended an
She testified that she has maintained sobriety
facility in February 2017 for three weeks.
of shared physical custody supports the
since leaving the facility. Father's proposal
abuse does not interfere with her current ability
conclusion that Mother's history of alcohol
to perform her parental duties.
of a party or member of a party's household.
(15) The mental and physical condition
has a mental or physical condition
Neither party or member of a party's household
that is other than normal.
by a party or member of the party's household,
(2) The present and past abuse committed party
to the child or an abused party and which
whether there is a continued risk of harm of the child.
can better provide adequate physical safeguards and supervision
Not applicable.
5329.1(a) (relating to consideration of child
(2.1) The information set forth in section
services).
abuse and involvement with protective
Not applicable.
(16) Any other relevant factor.
to
Father seeks to travel to India with Child
International and domestic travel.
traveling
mother is elderly and precluded from
spend time with her family there. Father's
his custodial
frequently travels domestically during
due to infirmity. In addition, Father
of the travelling
with Child. The August 21, 2018 order addresses the obligation
periods
not consider
travel itinerary information to the other party. The Court does
party to provide
he has to Philadelphia.
Father a flight risk given the extensive ties
Since the summer of 2018, Father's
Composition of Father's household.
with L, K,].
Child has a positive relationship
household has included ELK].
6
of on Appeal.
B. Appellant's Statement of Errors Complained
omitted], the trial court had an
1. Pursuant to well established case law [citations a
record. The Court erred by failing to compile
obligation to create a full and complete the record.
by acting affirmatively in a manner to limit
full and complete record and, in fact, to reduce her
on the trial, requiring Mother
The Court did so by setting time constraints certain
cross-examinations, denying her use of
witnesses, directing her to shorten her
the child.
documentary evidence, and failing to interview
or give weight to the testimony of Father
2. The Court erred by failing to consider
showed both individuals' contempt for
and [L.K.] (Father's girlfriend) which unequivocally
and lack of respect for Mother.
or the
3. The Court erred by failing to
consider giving weight to the testimony
inability and refusal to co -parent with
evidence presented which identified Father's
Mother.
weight to the testimony that child is
4. The Court erred by failing to give
between the parents' two incredibly
experiencing emotional trauma as she is transferred
on speaking inappropriately to the child
different households and as Father insists
about Mother and speaking to the child
including, but not limited to, speaking derogatively
other adult issues.
about the child about the litigation and
that this custody schedule
Court erred by failing to consider the impact
5. The as
with her sister. The new custody schedule,
would have on the Child's relationship (28)
from fourteen (14) days per twenty eight
written, would reduce their time together
eight (28) day period.
day period down to four (4) days per twenty
6. The Court erred by failing to place
restrictions on Father's travel as the evidence
reliable
failed to provide travel information or a
and testimony showed Father consistently benefit from
during previous travels, the child will not
method of communication to Mother be harmed
suffer from that travel, and the child will
regular weekend travel and, in fact, school.
in an intensive Spanish immersion
by missing school as she is enrolled
schedule and
by not identifying when the summer
7. The Court erred in its Order
begin.
school year schedules were to
child as
Court erred in finding that the transitions were problematic for the
8. The than a statement
presented at trial in this regard other
no testimony or evidence were
made by Father counsel on closing.
C. Discussion.
complete
erred by failing to compile a full and
Mother's complaint that the court
1.
is without merit. The
by acting affirmatively in a manner to limit the record
record and,
7
case by Administrative Judge Margaret Murphy to
a protracted
matter was assigned as
order directed
order dated January 24, 2018. Judge Murphy's
by
the undersigned judge
to the
two-day protracted hearing. At no time prior
for a
that the case be scheduled
8, 2018, did Mother
move for additional time.
hearing on August
commencement of the
of time and court resources
has waived any challenge to the amount
Mother, therefore,
(Pa.Super.
v. Velazquez 830 A.2d 1267. 1270
See Bednarek
allotted to this matter.
court results in
to a procedure employed by the trial
2003) (holding that acquiescence
Murphy, the
on appeal). As directed by Judge
to that procedure
waiver of any challenge
to present their cases.
the parties two full days within which
court provided the
day of the hearing, counsel for Mother informed
first
At the beginning of the
Mother's
include Mother, Mother's former husband,
would
court that the witnesses she
thereafter, counsel for Mother advised that
and Child. Shortly
daughter E., a nanny,
counsel for
At the end of the first day of testimony,
the nanny.
had chosen not to call
and that, "We have no
did not care if the court talks to Child
she
Mother told the court
second day of
with [Child]." At the beginning of the
not meeting
problem with the court
be called. Further,
that is was not necessary for Child to
stated
trial, counsel for Mother
of talking to the
not want to put Child through the experience
did
Mother testified that she
Child and that
the court did not err in not interviewing
it is clear that
court. On this basis,
lower court are
be interviewed. Issues not raised in the
Child to
Mother did not seek for v.
time on appeal. Pa.R.A.P. 302; Willoughby
raised for the first
waived and cannot be
In the interest of
J.Y., 754 A.2d 5(Pa.Super, 2004);
654, 659
Willoughby, 862 A.2d
1993).
Weir v. Weir, 631 A.2d 650 (Pa.Super.
(Pa.Super. 2000);
8
conciseness which
of this allegation of error lacks the 'necessary
The remainder
Pa.R.A.P.1925(b) statement must be
The
would enable the
court to address its merits.
identify
that the trial court judge may be able to
and ''coherent" such
sufficiently "concise
A.2d 206, 210 (Pa.Super.
Jiricko v. Geico his. Co., 947
on appeal.
the issues to be raised too vague.
where a Rule 1925(b) Statement is
court may find waiver
2008). The reviewing which
2013). Mother has not identified instances
345, 350 (Pa.Super.
In re A.B., 63 A,3d witnesses,
court required Mother to reduce her
allegation that the
support her vague
certain documentary
or denied her use of
her cross-examinations,
directed her to shorten
evidence.
or give weight to
the court erred by failing to consider
that
2. Mother's complaint
showed both
girlfriend) which unequivocally
and [LK.) (Father's
the testimony of Father the record.
for Mother is not supported by
for and lack of respect
individuals' contempt that Father
between the parties and cited
the high level of conflict
The court recognized legal
communicate with him through his
only
instructed Mother to
at various times has court heard
to communicate at all with L.K.. The
Mother not
counsel and has instructed opinions of
regarding their shared negative
and L.K.'s testimony
and considered Father's to the
it considered appropriate pursuant
weight
this testimony the
Mother, and afforded the trial court
cannot dictate the amount of weight
factors. "The parties
statutory custody best interest
concern of the trial court is the
Rather, the paramount
places on evidence. A.V. v.
52, 645 A.2d 836, 838 (Pa. 1994);
Pa.
v. Robinson, 538
of the child." Robinson 623 (Pa.Super.
S.M. v. J.M., 811 A.2d 621,
2014);
820 (Pa.Super.
S.T., 87 A.3d 818,
2002).
order, Exhibit "M-59,"
Mother's proposed custody
includes
Further, the record
have partial physical
custody of Child, for Father to
shared legal
which provided for
Wednesdays, and for a vacation and
weekends and alternating
custody on alternating order anticipates
both parties. Mother's proposed
to be shared by
holiday schedule and Child despite
communication between the parties
contact and
substantial, ongoing sole
for Mother." Short of granting Mother
for and lack of respect
the purported "contempt Mother herself,
award that was not propounded by
custody, an
legal and sole physical and L.K. is
feelings harbored by Father
negative
to shield Child from
the court's ability
custody arrangements. Mother's
primary/partial
of either shared or
limited by the realities court
Memorandum Opinion wherein the
by the court in its
concerns were addressed that neither parent
in their postnuptial agreement
parties recognized
observed that the
in any
in front of or to [Child] that would
anything
should 'say or do
Agreement at ¶ 12.14.
other parent." Postnuptial weight to
by failing to consider giving
that the court erred
3. Mother's complaint to
inability and refusal
which identified Father'
the evidence presented
the testimony or level of
the court recognized the high
Again,
with Mother is without merit,
co -parent of the
conflicts over the timeliness
the frequent
parties and cited
conflict between the is in the other parent's
of Child while she
information, the whereabouts
provision of travel a daily basis
and Child's communicating on
custody, Child's
participation in sleepovers, to
in that parent's company. The weight
persons
non -custodial parent and other the
the
with
and refusal" to co-parent is within
"inability
evidence of Father's
be afforded to the the trial court
dictate the amount of weight
cannot
court. "The parties
discretion of the the best interest
concern of the trial court is
Rather, the paramount
places on evidence.
10
A.V. V.
A.2d 836, 838 (Pa. 1994);
Pa. 52, 645
v. Robinson, 538 (Pa.Super.
Robinson A.2d 621, 623
of the child." v. J.M., 811
2014); S.M.
87 A 3d 818, 820 (Pa.Super.
S.T.,
to the testimony
2002). to give weight
erred by failing
that the court
4. Mother's
complaint
transferred between the parents'
"as she is
emotional trauma to
experiencing inappropriately
that Child is insists on speaking
households and as Father
two incredibly different Mother and speaking
about
speaking derogatively
but not limited to, The August
21,
the child including, issues" is without merit.
litigation and other adult any
to the child
about the with Child regarding
party shall communicate
directed that"[n]either See Order,
2018 order between the parties."
are in dispute
Child or topics which the court in
litigation involving further addressed by
were
Mother's concerns in their
Communication.
8121/18, at 4, that the parties recognized
the court observed
Opinion wherein in front of or
to
its Memorandum or do anything
should "say
neither parent
that Agreement at ¶
postnuptial agreement Postnuptial
denigrate the other parent."
in any way
[Child] that would
Exhibit
12.14. proposed custody order,
Mother's
noted, the record includes partial
As previously Child, for Father to have
custody of
for shared legal and for a
which provided Wednesdays,
"M-59," alternating
weekends and
on alternating proposed order
physical custody by both parties.
Mother's
schedule to be shared parties and
vacation and
holiday between the
and communication
ongoing contact speaking
substantial, to Child, including,
anticipates
speaking inappropriately
despite Father's purported
litigation and other adult
Child, the
Child about
and speaking to was
about Mother custody, an award that
derogatively sole physical
Mother sole legal and
of granting
issues. Short
of
Child from the trauma
the court's
ability to shield
herself, or
not propounded
by Mother
realities of either shared
is limited
by the
separate households Child's emotional
living in two court addressed
Further, the
custody arrangements.
identified doctor and that
primary/partial with an
sessions
that she attend counselling 8/21/18, at
10,
needs by directing See Order,
doctor's recommendatons.
shall follow that
the parties
the
for Child. consider the impact of
Counseling in failing to
that the court erred The
5. Mother's
complaint is without merit.
with her half-sister
relationship
schedule upon
Child's
counsel for
Mother and
new custody jointly by
created
"1," a document which
Court Exhibit of the parties' cases,
record includes the conclusion
the bar of the court after half-sister.
Father at Child and her
counsel for have with both
of time that Mother would contained in
the periods of the information
addressed
to the accuracy the
objection
for Mother raised
no
upon this exhibit for
Counsel reliance
challenge the court's
not 659
Exhibit "1." Mother
may 862 A.2d 654,
Court v. Willoughby,
302; Willoughby. 631
on appeal.
Pa.R,A.P.
2000); Weir v. Weir,
first time 754 A.2d 5(Pa.Super.
Interest of J.Y.,
2004); In the
(Pa.Super.
1993). in its
650 (Pa.Super. with her half-sister
A.2d relationship
Child's sibling this
the court considered
the weight placed upon
Further, to
Mother's challenge is
factors. v. Robinson,
of the statutory appeal. See Robinson
application relief on
no basis for
and, as such, it provides
87 A.3d 818, 820 (Pa.Super.
factor,
(Pa. 1994);
A.V. v. S.T.,
836, 838
645 A.2d
538 Pa, 52, 2002).
A.2d 621; 623 (Pa.Super. travel
v. J.M., 811
restrictions upon Father's
2014): S.M. to place
that the court failed all
complaint that Child "shall attend
6. Mother's directs
August 21, 2018 order
is without
merit. The
with Child
12
with the
established by the school"
schedule
activities pursuant to the may agree,
and
classes
such other times as the parties
2018 and
of a trip in November; "shall seek
exclusion
further provides that Father
The order
8/21/18, at 1, School Year. November,
See Order, two-week trip to India in
to take the
of Child's school" for Child Order,
the agreement in this regard." See
direction
"shall follow the school's
Father
2018 and that
8/21/18, at 2. Travel. "party traveling
the order provides that the
travel,
other periods of
Regarding all telephone number and address
party with the
Child shall provide the other no
overnight with (including flight numbers)
itinerary
be staying, as well as a travel
will See Order, 8/21/18,
where the Child scheduled travel.'
advance of any
(24) hours in
less than twenty-four
believed travel to be beneficial.
testified that they
Both Mother and Father either party's
at 2, Travel.
greater restrictions upon
not placing
not abuse its discretion in
The court did
period.
during that party's custodial
with Child "when the summer
ability to travel by not identifying
erred
complaint that the court
7. Mother's no relief. The "school year"
warrants
schedules were to begin"
school year the last
schedule and begins on the day after
summer schedule
first day of school. The that
begins with the to be implicit in its directing
considers these time frames
The court by the
day of school. to the schedule established
pursuant
all classes and activities
Child 'shall attend
Year.
8/21/18, at 1, School were
Order,
school...". See erred in finding that transitions
complaint that the court
8. Mother's time" transitioning
that Child had a "tough
Mother testified
is without merit. of error.
problematic
no support for this contention
The record lends
back and forth.
13
D. Conclusion.
basis upon which to conclude
complained of on appeal provide no
Mother's errors
legal custody and shared
in making its award of shared
discretion
that the court abused its or
misstate/lack support in the record
contentions either
physical custody. Mother's Two
on the evidence it received and considered.
the court placed
challenge the weight
of Error No. 4
inconsistent, items 4 and 8. Allegation
internally
of Mother's issues are
to being transferred
testimony regarding Child's emotional reaction
alleges failure to credit
8 argues that there
was no evidence
of Error No.
while Allegation
between households,
The court applied the proper standard in
problematic for Child.
that transitions were See A.D.
continuing to share her life with each parent.
interests in
assessing Child's best
case, the
(Pa.Super. 2010) ("With any child custody
32, 35-36
v. M.A.B., 989 A.2d
a case -by -
of the child. This standard requires
the best interests
paramount concern is
may legitimately affect the physical, intellectual,
all the factors that
case assessment of
well-being of the child.").
moral and spiritual
2018 should be affirmed.
The order of August 21,
BY THE COURT:
)10eCkt Adeil,V7V,(1(
tou,
Ourania Papademe
COPIES SENT
PURSUANT TO Pa.R.C.P.236(b)
SEP 2 5 2018
OF PA
FIRST JUDICIAL DISTRICT
USER1.0.:
14
Circulated 03/11/2019 01:57 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
FAMILY COURT DIVISION
C, : . " : Docket No. 0C1213057
Plaintiff/Appellee
In Custody
V.
S,L'.::.:.: %,
Defendant/Appellant
MEMORANDUM OPINION
The Court conducted a two-day evidentiary hearing concerning the custody issues
relating to the parties minor daughter (born January . , 2012), on August 8 and 9, 2018.
On August 21, 2018, the Court issued an order resolving all claims, The Court considered
the testimony of Mother, Father, and other witnesses. The Court evaluated the credibility
and demeanor of all witnesses, reviewed and considered the documents admitted into
evidence by each party, and evaluated all the factors in 23 Pa.C.S, § 5328(a).
The Court awarded shared legal custody. Legal custody is the 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. Shared legal custody is the right of more than
one individual to legal custody of the child. 23 Pa.C.S. § 5322,
The concept of shared legal custody does not contain the principle
of giving one
950, 953 (Pa.Super.
parent final authority in the event of a dispute. M.P. v. M.P., 54 A.3d
on other
2013) (quoting Hill v. Hill, 619 A.2d 1086, 1089 (Pa.Super. 1993) (disapproved
2018)).
grounds in P.J,P, v, M.M., 185 A.3d 413, 419 n.3 (Pa.Super.
1
Prior case law1 set forth a four factor analysis regarding shared legal custody.
However, the enactment of Section 5328(a) rendered the Wiseman v, Wall, 718 A.2d 844(Pa.Super. 1998) analysis obsolete. P.J.P. v. M,M., 185 A.3d 413, 420 (Pa.Super. 2018).
The four factors are assimilated into Section 5328(a), and poor cooperation need not be
dispositive. Id.The Court awarded shared physical custody. Shared physical custody is the right
of more than one individual to assume physical custody of the child, each having
significant periods of physical custodial time with the child. 23 Pa.C.S. § 5322.
In making its award of shared legal custody and shared physical custody, the Court
has considered the factors set forth at 23 Pa.C.S. § 5328(a), giving weighted
consideration to those which affect Child's safety. Section 5323(d) requires the trial court
to set forth its mandatory assessment of the sixteen factors prior to the deadline by which
a litigant must file a notice of appeal. C B, v. J.B., 65 A.3d 950, 955 (Pa.Super. 2013).
There is no required amount of detail for the trial court's explanation; all that is required
is that the enumerated factors are considered and that the custody decision is based on
those considerations. M.J.M v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013).
Reordered for clarity, the factors are considered as follows:
(13) The level of conflict between the parties and the willingness and ability of the parties
to cooperate with one another. A party's effort to protect a child from abuse by another
party is not evidence of unwillingness or inability to cooperate with that party.
The Court determines that there is a high level of conflict between the parties.
They do not communicate well and engage in email exchanges which often express
disrespect for one another. Father at various times has instructed Mother to only
Wiseman v. Wall, 718 A.2d 844, 848 (Pa.Super. 1998).
2
communicate with him through his legal counsel and has instructed Mother not to
communicate at all with his girlfriend, L. K : , to whom he is pre -engaged and
with whom he shares a residence. There have been frequent conflicts over the timeliness
of the provision of travel information. There have been frequent conflicts over the
whereabouts of Child while she is in the other parent's custody. There have been conflicts
over Child's participation in sleepovers and Child's communicating on a daily basis with
the non -custodial parent and other persons in that parent's company.
Notwithstanding the high level of conflict between the parties, they have been able
to work together in Child's best interest, such as choice of her school and medical
treatment. The Court determines that the likelihood of conflict between the parties has
been reduced by its order of August 21, 2018, in which the Court has addressed and
resolved the primary areas of conflict between the parties, including international travel,
communication with the non -custodial parent, and scheduling of Child's extracurricular
activities.
As recognized by the parties in their postnuptial agreement of October 13, 2015
("PNA"), they each "agree that they possess the ability to communicate and cooperate
with each other in promoting [Child's] best interests." PNA at ¶ 12.7. The avenue of
communication between the parties has now been limited to use of Our Family Wizard,
with the exception of an emergency situation. To the extent that the ability to cooperate has
diminished In the past several years, the Court expects that the level of conflict between
the parties will greatly lessen as they and Child acclimate themselves to the schedules
and provisions of the August 21st order.
(1) Which party is more likely to encourage and permit frequent and continuing contact
between the child and another party.
3
This factor favors neither party. Both parties permit Child to communicate with the
non -custodial parent, although Father has been somewhat more restrictive than Mother.
As recognized by the parties in their postnuptial agreement, they each "realize that it is
critical for [Child's] healthy development that she feel good about and loving towards both
parents, and that both parents play a major role in the achievement of this goal." PNA at
¶ 12.15.
(3) The parental duties performed by each party on behalf of the child.
Both parties have performed all parental duties while Child has been in their
respective custody.
(4) The need for stability and continuity in the child's education, family life and community
life.
Father remains living in the same Center City Philadelphia neighborhood that he,
Mother, and Child lived in when the family was intact. Child continues to attend the school
located several blocks from Father's current residence in a large apartment building.
Mother has recently purchased a home in the East Oak Lane section of Philadelphia in
which she, Child, and Child's half-sister reside when Mother has custody of each girl.
Mother and Child have forged ties in the new community, and the home Is conducive to
enhanced family life given its large size and ample outdoor space.
(5) The availability of extended family.
Father's extended family lives in India. The parents of L . K live in the
Fishtown section of Philadelphia and have established a relationship with
Child.
Mother's parents live in New York State, and she has siblings who live in various
family.
states with their children. Mother and Child often visit Mother's
4
(6) The child's sibling relationships.
Child has a half-sister, Mother's daughter, who is currently 14 years old, eight
years older than Child. They have a close relationship and live together when Mother
has custody of both of them at the same time.
(7) The well -reasoned preference of the child, based on the child's maturity and
judgment.
Child was not interviewed, and the Court makes no determination regarding Child's
preference.
(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.
As recognized by the parties in their postnuptial agreement, neither parent should
"say or do anything in front of or to [Child] that would in any way denigrate the other
parent." PNA at ¶ 12.14. To the extent that this prohibition has been eroded in the past
several years, the Court expects that the parties will conform their behavior to this
fundamental tenet as they and Child acclimate themselves to the provisions of the August
21° order.
(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.
This factor favors neither party. As recognized by the parties in their postnuptial
agreement, they each "agree that [Child) perceives both parents as sources of love and
that
security and wishes to continue both relationships," PNA at ¶ 12.6. To the extent
expects that
this sense of agreement has diminished in the past several years, the Court
the parties will develop a greater appreciation of Child's emotional
needs as they and
Child acclimate themselves to the schedules and provisions of the August 21°
order.
5
(10) Which party is more likely to attend to the daily physical, emotional, developmental,
educational and special needs of the child.
This factor favors neither party. Each party has attended to Child's daily
physical, emotional, developmental, educational and special needs while Child has been
in each party's respective custody.
(11) The proximity of the residences of the parties.
The parties currently live approximately 25 to 40 minutes driving distance apart.
(12) Each party's availability to care for the child or ability to make appropriate child-care
arrangements.
Each party is available to care for Child and has the ability to make appropriate
child-care arrangements. Father is self-employed in the real estate business and Mother
is a self-employed interior designer.
(14) The history of drug or alcohol abuse of a party or member of a party's household.
Mother has a history of alcohol abuse. She attended an in -patient rehabilitation
facility in February 2017 for three weeks. She testified that she has maintained sobriety
since leaving the facility. Father's proposal of shared physical custody supports the
conclusion that Mother's history of alcohol abuse does not interfere with her current ability
to perform her parental duties.
a party's household.
(15) The mental and physical condition of a party or member of
Neither party or member of a party's household has a mental or physical condition
that is other than normal.
(2) The present and past abuse committed by a party
or member of the party's household,
abused party and which party
whether there is a continued risk of harm to the child or an
of the child.
can better provide adequate physical safeguards and supervision
Not applicable.
to consideration of child
(2.1) The information set forth in section 5329.1(a) (relating
abuse and involvement with protective services).
6
Not applicable.
(18) Any other relevant factor.
International and domestic travel. Father seeks to travel to India with Child to
spend time with her family there. Father's mother is elderly and precluded from traveling
due to infirmity. In addition, Father frequently travels domestically during his custodial
periods with Child. The August 21, 2018 order addresses the obligation of the travelling
party to provide travel itinerary Information to the other party. The Court does not consider
Father a flight risk given the extensive ties he has to Philadelphia.
Composition of Father's household. Since the summer of 2018, Father's
household has included Ki . .. Child has a positive relationship with Ms.
The Court's order of August 21, 2018, vacated the Temporary Agreed Order of
December 23, 2016. Fathers petition for special relief filed October 12, 2017, seeking
to void the custody agreement was denied as there was insufficient evidence to support
a legal conclusion that Father entered into the agreement under duress or that the
agreement was the result of coercion.
BY THE COURT:
e
Our nia Papademetri
COPIES SENT
PURSUANT TO Pain?. 236(b)
AUG 2 1 2018
7
FIRS1 JUJICItn 4ISTRICT OF PA
USER I