M.M. v. K.M. ( 2014 )

J-S42044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.M., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
K.M.,
Appellant No. 442 WDA 2014
Appeal from the Order entered February 14, 2014,
in the Court of Common Pleas of Armstrong County,
Civil Division, at No(s): 2012-0483-Civil
BEFORE: PANELLA, JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2014
K.M. (“Mother”) appeals from the Order entered on February 14, 2014,
awarding shared legal custody of L.M. (“Child”), a male born in May of 2005
to Mother and M.M. (“Father”), and awarding primary physical custody to
Father and partial physical custody to Mother, in accordance with a schedule.
We affirm.
The parties were formerly married, separated in 2009, and divorced in
J-S42044-14
2011.1 Pursuant to a consent custody Order entered on October 25, 2012,
the parties shared legal custody of Child. Mother had primary physical
custody, and Father had partial physical custody, in accordance with a
schedule.
On May 29, 2013, Father filed a Petition to modify the custody Order.
On January 24, 2014, the trial court held a custody trial. At trial, Father
testified on his own behalf, and presented the testimony of his current wife,
B.M. (“Stepmother”), as well as that of his mother, M.J.M. (“Paternal
Grandmother”). Mother testified on her own behalf, and presented the
testimony of her mother, J.A.P. (“Maternal Grandmother”). Child was
interviewed in chambers. The trial court also admitted the expert report of
the court-appointed psychologist, Donna J. Zaffy, Ph.D. (“Dr. Zaffy”),
regarding her psychological evaluations of Child, Mother, Father, Stepmother
and Maternal Grandparents.
On February 14, 2014, the trial court entered its custody Order,
awarding shared legal custody of Child to Mother and Father, awarding
primary physical custody to Father, and awarding partial physical custody to
1
Following the dissolution of the parties’ marriage, Mother began dating
B.S., and in 2011, B.S. moved in with Mother and Child. See Trial Court
Opinion, 2/14/14, at 10. B.S.’s children also resided with them fifty percent
of the time. Id. at 11. In 2012, Mother and B.S. had a son, B. (“Half-
Brother”). Id. The trial court determined that this living arrangement was
“toxic and unsafe,” as B.S. abuses alcohol and has violent anger outbursts.
See Trial Court Opinion, 3/25/14, at 2. The trial court noted that B.S. tried
to attack Child twice in Mother’s presence. See Trial Court Opinion,
2/14/14, at 7. In 2013, Mother, Child and Half-Brother moved into Maternal
Grandparents’ home. See id.
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Mother, in accordance with a schedule. See Trial Court Order, 2/14/14, at
1-2. This Order changed primary physical custody of Child from Mother to
Father. On that same date, the trial court entered an Opinion setting forth
the factual and procedural history of the case, as well as the court’s bases
for its custody Order. See Trial Court Opinion, 2/14/14, at 1-25.
Mother timely filed a Notice of Appeal, along with a Concise Statement
of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and
(b).
On appeal, Mother raises the following issues for our review:
I. Whether the trial court abused its discretion and committed an
error of law in giving controlling weight to [Child’s] stated
preference to reside with Father[?]
II. Whether the trial court abused its discretion and committed
an error of law in failing to give adequate consideration to [Dr.
Zaffy’s] comprehensive, expert report and recommendations[?]
III. Whether the trial court abused its discretion and committed
an error of law by failing to consider the full impack [sic] of
awarding primary custody of [C]hild to Father[,] when[,] by so
doing[, C]hild will be relocated away from [M]other [and Half-
B]rother[,] with whom he has a strong bond, the history of
Father’s anger [and] alcohol issues, and Father’s desire to
retaliate against Mother for the years when she had primary
custody of [C]hild[?]
Mother’s Brief at 8 (capitalization omitted).
In custody modification cases, our scope and standard of review are as
follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
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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).
Additionally, we have stated,
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In any custody case decided under the Child Custody Act (“Act”),2 the
paramount concern is the best interests of the child. See 23 Pa.C.S.A.
§§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial
court may modify a custody order if it serves the “best interests of the
child.” See 23 Pa.C.S.A. § 5338. Section 5328(a) sets forth the following
2
See 23 Pa.C.S.A. §§ 5321-5340. Because the trial in this matter was held
in January of 2014, the Act applies to this case. See C.R.F., 45 A.3d at 445(holding that, if the custody evidentiary proceeding commences on or after
the effective date of the Act, i.e., January 24, 2011, the provisions of the Act
apply).
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list of sixteen factors that the trial court must consider when making a “best
interests of the child” analysis:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
the child.
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(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.
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(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. § 5328.3 Moreover, section 5323(d) mandates that, when the
trial court awards custody, it “shall delineate the reasons for its decision on
the record in open court or in a written opinion or order.” Id. at § 5323(d).
In her first issue, Mother argues that the trial court erred in giving
controlling weight to Child’s stated preference to reside with Father.
Mother’s Brief at 15. Mother contends that, although a child’s wishes are
important, they are not controlling in custody matters. Id. Mother asserts
that a child’s preference must be based upon reasons that comport with his
3
Effective January 1, 2014, the Act was amended to include an additional
factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child
abuse and involvement with child protective services).
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best interests, and that where the child is very young or can give no
adequate reason for his preference, the trial court is to accord little weight to
the child’s preference. Id. at 15. Mother contends that Child is young
(eight years of age), and that he did not articulate emphatic reasons for his
preference. Id. at 15, 17. Thus, Mother urges, the trial court abused its
discretion by relying on Child’s stated preference. Id. at 18.
The preference of a child, although not controlling, is a
factor to be carefully considered, as long as it is based on good
reasons. The child’s maturity and intelligence must be
considered, and the weight to be given the child’s preference can
best be determined by the judge before whom the child appears.
Swope v. Swope, 689 A.2d 264, 266 (Pa. Super. 1997) (citations omitted).
Here, the trial court identified and discussed each of the sixteen
section 5328(a) factors in its Opinion. See Trial Court Opinion, 2/14/14, at
19-23. Additionally, the trial court carefully considered Child’s preference to
live with Father, and found it to be based on good reasons. See id. at 23-
25. Specifically, the trial court determined that, based on Child’s prior “toxic
and unsafe” living situation with Mother and B.S., Child feared that Mother
could place him in a bad situation if she moved him from Maternal
Grandparents’ home. See id. at 24. Further, the trial court found that Child
preferred to live with Father so that he could spend more time with Father,
and so that Stepmother could help him with his homework. See id. at 20-
21. The trial court specifically found that Mother’s testimony that she did
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not know that Child was afraid of B.S. until after they moved from the home
they shared with him, lacked credibility. See id. at 24 n.1.
We defer to the determinations of the trial court as to the credibility
and weight it gave to the testimony of Child and Mother. See C.R.F., 45
A.3d at 443. The trial court’s determinations regarding the weight to accord
Child’s preference do not involve an error of law, and are not unreasonable
in light of the sustainable findings of the trial court as to the credibility of
Child and Mother. Id. Thus, we find no abuse of the trial court’s discretion
in its affording Child’s stated preference weighted consideration as a section
5328(a) factor, as Child’s preference was based on good reasons. See
Swope, 689 A.2d at 266.
In her second issue, Mother argues that the trial court “chose to
disregard the comprehensive, well-reasoned and uncontroverted opinion and
recommendation of the [trial c]ourt’s own expert[, Dr. Zaffy,] and awarded
primary custody of [Child] to Father.” Mother’s Brief at 20. Mother points
out Dr. Zaffy’s recommendation that Mother retain primary physical custody
of Child during the school year, but that Father be awarded an additional
custodial weekend per month during the school year. Id. Mother claims
that the trial court failed to give adequate consideration to Dr. Zaffy’s report,
and discounted her uncontradicted evaluation. Id.[W]hen expert evaluation is uncontradicted or unqualified,
a child custody court abuses its fact[-]finding discretion if it
totally discounts expert evaluation. To say that a court cannot
discount uncontradicted evidence, however, is merely to
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rephrase the requirement that a child custody court’s conclusion
have competent evidence to support it. So long as the trial
court’s conclusions are founded in the record, the lower court
[is] not obligated to accept the conclusions of the experts. It is
not this Court’s function to determine whether the trial court
reached the “right” decision; rather, we must consider whether,
“based on the evidence presented, given due deference to the
trial court’s weight and credibility determinations,” the trial court
erred or abused its discretion in awarding custody to the
prevailing party.
King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (citations omitted).
The trial court explained its reasons for not following Dr. Zaffy’s
recommendation that Mother should have primary physical custody as
follows:
In recommending that the status quo be maintained, Dr. Zaffy
placed great emphasis on Child’s close bond with Maternal
Grandparents and their availability to care for Child. Dr. Zaffy
ignored Mother’s stated intention to move from Maternal
Grandparents’ home in the foreseeable future. She also did not
factor in the substantial anxiety that Child feels about moving
elsewhere with Mother.
Trial Court Opinion, 2/14/14, at 25 n.2.
Here, the trial court adequately explained its reasoning, and its
conclusions are supported by the record. See id. Thus, the trial court’s
decision to rely on the evidence presented at the custody trial, instead of on
the recommendation of the court-appointed custody evaluator, was not an
abuse of discretion. See King, 889 A.2d at 632.
In her third issue, Mother argues that the trial court erred by failing to
fully consider the potential impact of awarding primary custody to Father,
given that Mother has been Child’s primary custodian since the parties’
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separation. Mother’s Brief at 24. Mother relies on the primary caretaker
doctrine in support of her argument that the trial court should have
maintained primary physical custody with her. Id. at 25. Mother asserts
that she has provided Child with a stable and consistent environment, and
notes the positive role that Maternal Grandparents have played in Child’s life
as his caretakers. Id. at 26. Mother contends that awarding primary
physical custody to Father will result in a change in Child’s school, and
subject Child to haphazard childcare arrangements. Id.
The considerations embraced by the primary caretaker doctrine have
been woven into the section 5328(a) factors, such that they have become
part of the trial court’s mandatory inquiry. See M.J.M. v. M.L.G., 63 A.3d
331, 339 (Pa. Super. 2013). Furthermore, the considerations that the
primary caretaker doctrine sought to address are included implicitly in the
section 5328(a) factors. See id. (citing 23 Pa.C.S.A. §§ 5328(a)(3)
(requiring consideration of “[t]he parental duties performed by each party on
behalf of the child.”); (a)(4) (requiring consideration of “[t]he need for
stability and continuity in the child’s education, family life and community
life.”)). Thus, to the extent that the primary caretaker doctrine required
positive emphasis on the primary caretaker’s status, it is no longer viable.
See M.J.M., 63 A.3d at 339 (stating that “[w]e simply cannot graft the
judicially-created primary caretaker doctrine on to the inquiry that the
Legislature has established ….”).
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Here, the trial court addressed the section 5328(a) factors in its
Opinion, including factors (a)(3) and (a)(4), before finding that it was in
Child’s best interests to award primary physical custody to Father. See Trial
Court Opinion, 1/14/14, at 19-20. We discern no abuse of discretion by the
trial court, and affirm on this basis as to this issue. See id.Mother also contends that, absent compelling reasons to the contrary,
siblings should be raised together in one household. Mother’s Brief at 27.
Mother asserts that Child and Half-Brother are very closely bonded, and that
Child misses Half-Brother when they are with their respective fathers. Id. at
28. Mother argues that there are no compelling reasons to separate Child
and Half-Brother, and that the trial court erred by failing to keep Child and
Half-Brother together. Id.
When considering sibling relationships in making a custody
determination,
the policy in Pennsylvania is to permit siblings to be raised
together, whenever possible (the doctrine of “family unity” or
“whole family doctrine”). Absent compelling reasons to separate
siblings, they should be reared in the same household to permit
the continuity and stability necessary for a young child’s
development. This policy does not distinguish between half-
siblings and siblings who share both biological parents.
However, this Court has made clear that the policy against
separation of siblings is only one factor—and not a controlling
factor—in the ultimate custody decision. In the majority of cases
in which this doctrine has been invoked, the children have been
reared together prior to separation or divorce of the parents. In
cases where the siblings have not been reared in the same
household, the force of the doctrine is less compelling.
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Johns v. Cioci, 865 A.2d 931, 942-43 (Pa. Super. 2004) (some internal
citations and quotation marks omitted); see also Nomland v. Nomland,
813 A.2d 850, 855-56 (Pa. Super. 2002) (explaining that the general
preference to have siblings raised together must yield to the paramount
principle that the best interests of the child is the determining factor in a
custody case).
Here, the trial court determined that Child’s concerns about his
stability if he were to remain in Mother’s primary physical custody
outweighed the concern of separating him from Half-Brother. See Trial
Court Opinion, 2/14/14, at 23-25. The trial court found Child’s stability
concerns if he remains in Mother’s primary physical custody were compelling
reasons for him to live primarily with Father.4 See Trial Court Opinion,
3/25/14, at 7. We discern no abuse of the trial court’s discretion in
separating the half-siblings.
Lastly, we address Mother’s contention that the trial court failed to
consider Father’s character, conduct, and motivation in seeking modification
of custody. Mother’s Brief at 30. In particular, Mother cites to 23 Pa.C.S.A.
§ 5329(a),5 arguing that the trial court failed to consider Father’s three
4
The trial court noted that Child and Half-Brother would be together every
other week in the summer. See Trial Court Opinion, 3/25/14, at 7.
5
Section 5329(a) applies to custody actions and requires the trial court to
consider whether any party has been convicted of certain alcohol and drug-
related offenses. Section 5329(c) requires the judge to perform an initial
evaluation to determine whether the party who committed an offense under
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convictions for driving under the influence of alcohol, his conviction for
possession of marijuana, his continued consumption of alcohol, and his
anger management issues. Mother’s Brief at 30. Mother contends that the
trial court erred by dismissing Father’s prior issues with drugs and alcohol
without conducting a thorough and in-depth investigation to ensure that
awarding primary custody to Father is in Child’s best interest. Id. at 31.
Mother also claims that the trial court failed to fully consider Father’s
motivation in bringing the present action in view of his testimony that he
wished to retaliate against Mother for not being lenient with him when she
had custody of Child. Id.
Here, the trial court considered Father’s prior alcohol and drug issues,
and noted that Father’s most recent substance abuse conviction was
approximately fifteen years prior to the trial. See Trial Court Opinion,
3/25/14, at 7. The trial court also observed that Mother similarly used
alcohol and drugs with Father in the past. See id. Further, the trial court
considered Dr. Zaffy’s statement in her report that Father’s history of drug
and alcohol abuse did not pose a threat of harm to Child. See id. at 8.
The record reflects that the trial court also took into account Father’s
history of anger management issues with Mother and Maternal
Grandmother, and the fact that Father took an anger management course at
the time of the parties’ separation, pursuant to a PFA order that Mother
subsection (a) poses a threat to the child, and whether counseling is
necessary.
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obtained against him. See id. at 7-8. The trial court found that there was
no evidence that Father cannot control his temper with Child, and noted that
Dr. Zaffy expressed no concern about Father’s ability to care for Child. See
id. at 8.
Finally, the trial court considered Father’s trial testimony that Mother
should experience what it is like to suffer some loss of time with Child. See
id. The trial court found that Father did not exhibit a retaliatory motive in
seeking primary physical custody. See id. The trial court was not
concerned about Father retaliating against Mother by withholding custody
from her, as the trial court had faith in the influence of Stepmother on the
situation, and the trial court advised that it would not accept any retaliation
by Father. See id. at 8-9.
The trial court’s conclusions are supported by competent evidence in
the record, and are not unfounded. Therefore, the trial court properly
considered the section 5328(a) factors, and determined that it was in Child’s
best interests to award Father primary physical custody of Child.
Accordingly, we affirm the Order of the trial court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
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IN THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA
M.M.
Plaintiff
.~ VB. No. 2012 - 0483 - CIVIL
K.I" .
Defendant
MEMORANDUM and ORDER
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~1."51T. and Child are inseparable when Child is at
Father's house.
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I 7 cooks, cleans, feeds, buys clothes for Child,
and helps him with his schoolwork. Father tries to help Child
with his schoolwork "a little," but Child prefers to do it with
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Child has difficulties reading. Father and (
try to make Child read a minimum of 15 minutes a day.
In previous years, Father was not very involved with
Child's schooling. In the school year beginning in August of
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2013, however, Father and FAtS attended the parent
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orientation and parent-teacher conferences. 2 $ has also
4
"'v._
~483-Civil
Circulated 08/27/2014 10:26 AM
been communicating with Child's school via e-mail. Father looks
over Child's schoolwork and papers when Child brings his school
backpack to Father's house.
Father has not participated in Child's health
appointments in the past. However, he plans to do so in the
future.
``11w
IIIIIIII places a great deal of importance on Mother
seeing Child. Should Father receive primary physical custody of
S\efvrto+llw
{ Child, tIIIIIt is amenable to Child seeing Mother whenever Child
wants.
Father's house is located in the Clarion-Limestone
School District. The elementary school that Child would have to
attend in that district is an hour's bus ride away from Father's
house. Father does not want Child to ride the school bus two
hours a day. Instead, if Father receives primary physical
S\ep!vi'%, Child never wanted
to return to Mother's house after Child's visits with Father.
8.S.
Child told Father he was afraid of 7 S.
Father was glad when Mother and Child moved back in
with Maternal Grandparents because Father knew that Child would
be safe and well-taken care of there.
Father has a criminal record consisting of three
driving under the influence convictions: one in 1991, ODe in
1992 and the last one in 1996. Father was also convicted of
possession of marijuana in 1999.
Father acknowledged to Dr. Zaffy that he had "a past
history of alcohol and drug use including prescription pills
(Vicodin) " Zaffy Report, at 13.
Father went to a 2S-day drug and alcohol
rehabilitation program at ARC Manor after his second DUI arrest.
Father also participated in Alcoholics Anonymous "for awhile,"
but has not done so for the past fifteen years. Father said he
now feels comfortable drinking alcohol because through
counseling, he has dealt with the problems that caused him to
drink excessively. Father testified that he drinks about four
beers per week and no longer smokes marijuana. The threat of
Father relapsing back to where alcohol is a problem is
negligible.
8
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_1
. . . . . .v· . . . .
No. 2012-0483-civil
Based upon his past experience, Father is highly
concerned about what kind of man Mother will date when she moves
out of Maternal Grandparents' house. Father is also concerned
that Mother will move back into the house she lived in with
~. Such a move would greatly upset Child, who has bad
memories of living there.
Father is also concerned about Maternal Grandfather's
behavior. Father said Maternal Grandfather sometimes made Child
cry when he ("Maternal Grandfather") yelled while watching
football. Father also said that Paternal Grandfather said mean
things about Father to Child, including that Father brainwashed
Child. Father admittedly does not get along with Maternal
Grandfather.
Father said it is in Child's best interest to live
primarily with him and sttrvloth~cause they can provide Child
with a stable, active, and stimulating life, and can surround
Child with people who will give Child all of their attention.
Father also said it would be better for Child to live in town
among his friends rather than to be isolated out in the country-
side with Maternal Grandparents. In addition, Child has his own
bedroom at Father's house.
Father is bitter about the limited amount of time he
has spent with Child since the parties separated in 2009.
Father told the Court that if he receives primary custody,
9
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v.
NO. 2012-0483-civil
Mother should be granted custody of Child every other weekend,
including in the summer, so that Mother could feel what it has
been like for Father to not see Child for two weeks at a time.
Father said Mother should just have two weeks extra with Child
during the summer, not week on/week off custody. Father later
•
told the Court that he did not mean what he said.
Mother, age 37, lives in a four-bedroom house in South
"I.f·~
Buffalo Township with her parents, Child and • Mother
has an undergraduate degree in business management and a
master's degree in education.
Mother works as a customer service associate with PNC
Bank at Pittsburgh Mills. She has worked there since 2012.
Mother works forty hours a week. She works from 8:45 a.m. until
6:15 p.m. two or three days a week. Otherwise, she works from
8:45 a.m. until 3:45 p.m.
Mother is required to work two Saturdays per month.
Mother works on the Saturdays that her boys are with their
fathers for the weekend.
Mother gets Child ready for school before she leaves
for work. After she leaves, Maternal Grandfather makes Child
breakfast. When Mother comes home from work, she takes over
eare of Child and . .
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.
~.s.
Mother and her former paramour, .S ~,
.... began living
together in November of 2011. Child lived with them in a home
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2 I V· _ _ III
No. 2012-0483-Civil
&.5.
owned by I.SIl" s ex-wife located approximately half a mile from
B.S"
Maternal Grandparents' home. . . . . . '8 two children also lived at
the house fifty percent of the
On August 22, 2012, Child's half-brother, was
born.
B.S,
The incident that spurred Mother to l e a v e ' " began
with a fight between Child and • e,.,lilt ...;;B..
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a
__ f solder child, on
B.S.
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May 16,
called L
e
2 13.
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7 and Mother started to argue and Mother
The fight turned into a family argument.
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Mother asked. ; to leave. When 7 refused, Mother called
j1, .S.
the police, who then came to the house . . . . . . 's ex-wife also
came and removed her children.
Later that night, Mother made the decision to move
back in with Maternal Grandparents the next day. Child was
overjoyed to hear that he was moving back in with Maternal
Grandparents. Child excitedly ran up to Maternal Grandparents'
van when they arrived the next day to take him, Mother and
\tth1.f.Pi..+t!V
• back to their house.
According to Mother, is an alcoholic. Mother
fJ.s .
stated that her relationship with . . . . was "bad" and "got worse
over time."
Mother testified that Child did not tell her he did
not like living with .~·~i until after Mother and Child had
already moved back in with Maternal Grandparents.
11
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• _l1li.
2 v . •2. .
No. 2012-0483-Civil
Child has told Mother that he did not like living with
~.s.
and does not want to live in that house again. Child has
also told Mother that he wishes to live primarily with Father.
Maternal Grandparents, Mother, and the children live
together in the home in which Mother grew up. The house has
three bedrooms. Child either sleeps with Mother or in the same
1-lA1-f.
room as
Mother is the primary caregiver to Child and
when she is home. Mother takes the children for their medical
care.
Maternal Grandparents have always provided babysitting
for Child, even when Mother and Child did not live with them.
Maternal Grandfather is a retired teacher and
elementary school principal. Maternal Grandmother is a retired
German teacher.
Child is close to Maternal Grandparents and enjoys
,
i
their company.
Child is close to his half-brother~ and
enjoys playing with him.
Child has attended school in the Freeport Area School
District since kindergarten and has many friends there. Child
cannot walk to see his friends because they hang out in the
Borough of Freeport, which is five miles away from Maternal
Grandparents' house.
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No. 2012-0483-civil
Child plays on a basketball team through the family's
church. Mother is Child's basketball coach.
Father brings Child to Child's basketball games when
Child is staying with Father.
Child is in third grade. He has been struggling with
reading and receives special help during the school day pursuant
to Title I. There is also after-school tutoring available at
school. However, Mother has been told by the school that the
after-school tutoring would not be helpful to Child.
Mother works with Child after school to improve his
reading, spelling and vocabulary skills. Maternal Grandparents
also help Child with his reading and his homework.
There is a Custody Order consented to by Mother and
December of 2013 which gives Mother primary physical
custody of ,
b,~.
'I has partial custody of fIp If· flOt\1W'
every
other weekend from 9:00 a.m. until 7:00 p.m. on Saturday and on
(
e, ,S. !lA1f..&~
Sunday, 0 , also has custody of 1 two days during the
week.
Mother said she has no plans to leave her parents'
I-W.I+.``
home "right now." She testified that she, Child and 7 7 are
stable and happy and there is no reason to leave.
Mother said she will not remain at Maternal
Grandparents' house indefinitely, however. Eventually, when she
has enough money, she plans to move to an apartment.
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•
No. 2012-0483-Civil
Mother and the children are welcome to stay with
Maternal Grandparents as long as they want. Maternal
Grandmother said Mother had not talked to her about any
"immediate" plans to leave.
~.s.
Mother owns the four-bedroom house that she a n d . - . .
previously lived in. Mother currently has a tenant occupying
the house. The rent she receives from the tenant pays for her
$1,179 monthly mortgage payment. Mother said that before moving
back into that house, she would first ask Child if it would
bother him to live there again.
Because of Mother's "bad" relationships with Father
~.£.
and~, Mother is seeing a therapist. She is learning how to
set boundaries in her relationships with significant others and
how to be more assertive.
Mother and Father have worked out a system of
communication consisting of text messages and telephone calls.
{
Mother frequently calls SWTDrw I since the two of along
and communicate calmly. Mother finds talking to 1;``I~e:as i e r
than talking to Father.
Mother calls Father them of what
she has learned at Child's medical appointments.
~Of\1'"
Mother and4llillt coordinate their vacations with one
another. Mother and her family spend a week at the beach in
Circulated 08/27/2014 10:26 AM
No. 2012-0483-Civil
North Carolina every yeari Father and his family spend a week at
Myrtle Beach.
Because of the traumas that Child has suffered, Mother
supports Child having a full mental health assessment and
possible mental health counseling as Dr. Zaffy has suggested.
Both Father and Mother admittedly partied with drugs
and alcohol prior to the time Child was born. Father and Mother
continued to use drugs and alcohol at times until Child was
approximately three years old.
and
Father She is
concerned that if Child lives primarily with Father, his reading
issues will be totally ignored, he will not be disciplined, and
he will lose his strong bond with his little half-brother.
The Court interviewed Child in chambers. The Court
agrees with Dr. Zaffy that Child "did not appear to be coached
(
but, rather, to be sharing his own thoughts and feelings."
Zaffy Report, at 10.
Child wishes to live mostly with Father because "I
like him and I like to see him a lot." Child told the Court,
"It would make me feel happy to live with my Dad."
Child said he gets along better than with
Mother. He also said that he gives Mother, but not5~ a
15
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No. 2012-0483-Civil
hard time about having to do his homework. Child likes doing
homework with ~
Father and Child read together every night for fifteen
minutes before bed. Father told Child he will do homework with
Child if Child comes to live with him.
Child said he would have no problem going to a new
school and not being around his old friends. Child said he
liked making new friends.
Child said he would miss Mother if he lived primarily
with Father, so he would like to live with Mother ODe week OD,
one week off during the summer. Child said he did worry about
Mother missing him when he was with Father in the past.
Child told the Court that he was scared living with
&.$.
"because he was always mean to me. 1/ In addition, 's
two children would do "stuff" and put the blame on Child.
Child said Mother knew that Child was scared [when
~S.
they were living with ], but that she still wanted to live
~.S.
with
Child worries that he might have to live in the same
house again that he had lived in with
B.s. Child said he did
not want to remember what had happened there. He mentioned bad
memories of .....~iiilS
~&
•. getting drunk, yelling at him and throwing him
on the couch.
Circulated 08/27/2014 10:26 AM
Father has told Child that he missed Child a lot when
Child was not with him. Father told Child that he sometimes
slept on Child's bed when he missed Child. Child misses Father,
too, when Child is not with Father.
Asked what disparaging things Mother and Father have
said about each other to him, Child replied that Mother just
says Father is a lunatic, "that's all." Father says "bad stuff"
•
about Mother sometimes, Child said. Father told Child that he
did not like Mother and that Mother was being mean to him.
Dr. Zaffy conducted psychological evaluations of
Mother, Father, Child, srr~nd Maternal Grandparents for the
Court.
Childs
Dr. Zaffy said, ' _ ' s descriptions of his two
families indicate that he has formed positive attachments to
both of his parents and his well as
to his stepmother and maternal grandparents." Zaffy Report, at
\. 10.
(.kilt.!
. . . . . . "enjoys interacting with members of the extended
families, especially mother's family." Id. at 10.
Dr. Zaffy stated, "In summary, ... , neither the
parents, stepmother, nor the grandparents are exhibiting any
mental health concerns that compromise their ability to care
appropriately for~. (klild
All love IIIIIPand are able to meet
his emotional needs." Zaffy Report, at 22. "The primary
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No. 2012-0483-Civil
concerns center on co-parenting and the difficulty the parents
have in communicating about their son." Id.
Dr. Zaffy ultimately recommended that Mother retain
primary custody of Child and that Father have additional
weekends with Child during the school year because she saw no
•
good reason to disturb the status quo. Dr. Zaffy was
particularly impressed with Maternal Grandparents, stating, "The
Ma~ ````e to provide a stable, safe, and secure home
environment for both of their grandsons. Since both are
retired, they are available to provide child care if ,§~i1i is
off ````o~rs ill when his mother is at work. In addition, the
both of whom are teachers, are well-equipped to help
& W i t h his academic challenges." Id.
DISCUSSION
The primary concern in any custody case is the best
C interests of Child. This best interests standard considers all
factors that legitimately have an effect upon Child's physical,
intellectual, moral, and spiritual well-being. Saintz v.
Rinker, 902 A.2d 509, 512 (Pa.Super. 2006).
Section 5328 of the Pennsylvania Child Custody Law, 23
Pa.C.S.A. § 5328(a), provides a list of factors that the Court
must consider in making any custody determination. We address
each factor separately below.
18
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No. 2012-0483-Civil
1. Which party is more likely to encourage and
permit frequent and continuing contact between Child and the
other party. In the past, Mother has been the party less likely
to encourage and permit frequent and continuing contact between
Child and Father. At present, the Court believes that neither
party is more likely to do so than the other. Father has
expressed some desire to give Mother a taste of her own
medicine. However,Sf€t`` a positive influence on Father in
( this regard and is likely to encourage Child to have extra time
with Mother, not less.
2. Abuse committed by a party or a member of a
party's household. Mother obtained a PFA order against Father
in 2009 when Mother and Father separated. Mother told Dr. Zaffy
that the PFA was based upon a push that Father gave her. The
PFA required Father to take anger management classes. Father
complied. In her evaluation of Father, Dr. Zaffy expressed no
\.
concerns regarding Child's safety around Father. The Court
finds that Father poses absolutely no danger to Child.
3. The parental duties performed by each party on
behalf of Child. It is not clear who the primary caregiver for
Child was prior to separation. Mother has had primary physical
custody of Child since the parties separated in 2009. Mother
takes Child to see the doctor and helps Child with his homework.
Mother has been the parent interacting with Child's school until
19
Circulated 08/27/2014 10:26 AM
SIt(mIGthU'
the 2013-2014 school year, when Father and ~have become
more involved.
4. The need for stability and continuity III Child's
education, family life and community life. Child is
affirmatively asking to change his school, community, and family
•
life. Child seems quite happy at the prospect of doing so.
Child remains quite shaken from his experience of having lived
~.s. ~$.
with 7 . , an angry alcoholic, and . . . . . '8 bullying children
for a year and a half. Child evidently feels more secure with
Father and SW lYl
oli1u'than with Mother, whom he foresees will move
out of Maternal Grandparents' house, thus subjecting Child to
more uncertainty.
5. The availability of extended family. Both Mother
and Father have extended family to help out with child care.
6. Child's sibling relationships. Child has
developed a solid bond with half-brother-• • • • • • •
C
7. The preference of Child. Child has been asking
to live with Father andS~or years. There is no evidence
that Child has been coached or subverted into making this
request. Child simply wishes to spend significantly more time
with Father. He also likes being around~with whom
Child has developed a very strong bond. The strength of Child's
relationship with~s illustrated by the fact that Child,
by his own admission, makes a big fuss when it is time to do his
20
Circulated 08/27/2014 10:26 AM
No. 2012 0483-Civil
homework, but not when he is With~ Sl-epMJi:!!er
_ is Child's
favorite person to do homework with, which is extremely
important, since Child has been struggling with reading and does
not like to do homework at all.
8. The attempts of a parent to turn Child against
the other parent. There is evidence that Mother and Father have
occasionally tried to turn Child against the other parent by
making disparaging remarks in front of Child.
9. Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with Child
adequate for Child's emotional needs. Father is more likely to
do so. Father demonstrated a great deal of commitment to
Child's welfare when he quit his previous job, which required
long hours and frequent absences from home, to make himself
available to Child on a daily and consistent basis. By
contrast, Mother showed extremely bad judgment and a lack of
{ ~.'S.
concern for Child when Mother chose to remain with in the
face of Child's expressed fear of
e..s.
7 and the situation.
10. Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of Child. Father is more likely to do so with the help of
his wife,
11. The proximity of the residences of the parties.
The parties live approximately fifty miles apart.
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No. 2012-0483 Civil
12. Each party's availability to care for Child or
ability to make appropriate child-care arrangements. Each party
is available to care for Child when not working. Each party
also has the 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. The parties have a significant level of conflict. It
is not clear that either party is more willing and able to
Sffiltl1 0fhw
cooperate than the other. The Court sees . . . . . . . . as a very
helpful go-between for the parties at this point. However, it
is in Child's best interests that Mother and Father learn to
deal with each other directly.
14. The history of drug or alcohol abuse of a party
or member of a party's household. Father has a history of drug
and alcohol abuse. He does not currently appear to be abusing
substances, however. Mother also has some history of alcohol
and drug abuse, although not to the extent that Father does.
Chances of a relapse by either are negligible.
15. The mental and physical condition of a party or
member of a party's household. The parties and the members of
their households do not suffer from any mental or physical
conditions that significantly affect their abilities to care for
Child.
22
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•
NO. 2012-0483-civil
I]
16. Any other relevant factor. In recommending that
Child remain primarily with Mother, Dr. Zaffy placed a great
deal of weight on Child's bond with his half-brother
It is true that the "general rule is that siblings
should not be separated without compelling reasons .... If Swope v.
Swope, 689 A.2d 264, 265 (Pa.Super. 1997) (citation omitted) .
However, this policy is "only one factor to be considered in
determining the best interests of the child." Id. " [A]ny
l benefit derived from forcing a child to reside with one of its
parents solely for the purpose of keeping the siblings together
can be outweighed by the detrimental effects on the child who
prefers not to live with that particular parent." Sykora v.
Sykora, 393 A.2d 888, 889 (Pa.Super. 1978). We note, too, . that
\ttI.\f·~\tIw
Child and I are only half-siblings, not full-siblings.
In the instant case, Child has been thinking about
where he wants to live for years. Although Child is close to
~:'~:~and Maternal Grandparents, Child has repeatedly stated
that he is "OK" with being separated from tln'f.f~
and Maternal
Grandparents and that he places a higher importance on being
~l\1oH7ey
with Father and-~.
Mother testified that she intended to move out of her
parents' house and strike out on her own when she has enough
money to rent an apartment. Mother emphasized that she did not
intend to move out "right now." Maternal Grandmother emphasized
23
Circulated 08/27/2014 10:26 AM
No. 2012-0483-Civil
that Mother had not discussed any "immediate" plans to move out.
However, to the Court, these carefully chosen words suggest that
Mother will be moving out sooner rather than later.
That prospect is what causes Child to be worried about
the future. Understandably, given his previous bad experience,
Child does not want to move somewhere else with Mother. Child
has stated that if and when Mother does move out, he would much
rather go live with Father, or failing that, remain with
Maternal Grandparents in their home.
The record is clear: Mother chose to reside with an
angry, alcoholic boyfriend for a year and a half, despite the
fact that, as Mother herself put it, the relationship was a bad
one and got worse over time. Mother decided to keep Child in a
toxic and unsafe situation, even after Child told Mother that he
(l)S. e, .S.
was afraid of & i and that _ had pushed him. 1
Mother's poor judgment and apparent lack of concern
(
for Child's well-being was not lost on Child. He seems
determined not to be put in that situation again. Child wants
certainty and security, not uncertainty and insecurity. He
s.h>J1lV1o+\1t.r
prefers to live with Father and-. . . . . . . , who have a loving
t
es.
Mother testified that she did not know Child was afraiGlgf ...... until after
they had moved out of the house they were sharing with~.~ Court does
not find Mother's testimony to be credible. Child made it clear that he had
told Mother that he was afraid, and that she decided to stay with . . . . .
anyway. &.!i-
24
Circulated 08/27/2014 10:26 AM
NO. 2012-0483-Civil
marriage and who show every intention of staying put in Clarion.
Child's desire is wholly rational.
As shown above, there are compelling reasons for Child
to live primarily with Father, despite the fact that he will be
H1Ilf.(3~
separated from & 1.2 Therefore, the Court finds that it is
in Child's best interests to live primarily with Father and will
award Father primary physical custody of Child .
•
An appropriate Order will be entered.
2 In recommending that the status quo be maintained, Dr. Zaffy placed great
emphasis on Child's close bond with Maternal Grandparents and their
availability to care for Child. Dr. Zaffy ignored Mother's stated intention
to move from Maternal Grandparents' home in the foreseeable future. She also
did not factor in the substantial anxiety that child feels about moving
elsewhere with Mother.
25