K.P. v. S.P. ( 2020 )

J. A02042/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
K.P., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1376 WDA 2019
:
S.P. :
Appeal from the Order Entered August 23, 2019,
in the Court of Common Pleas of Beaver County
Civil Division at No. 13011 of 2010
BEFORE: SHOGAN, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 14, 2020
K.P. (“Father”) appeals from that part of the August 23, 2019 custody
order entered in the Court of Common Pleas of Beaver County that modified
the preceding consent custody order with respect to C.P., natural male child
of Father and S.P. (“Mother”), by changing C.P.’s school district and modifying
Mother’s and Father’s custody dates and times. We affirm.
The record reflects that Mother and Father had been married and are
now divorced. In addition to being the natural parents of C.P., Mother and
Father are also the natural parents of B.P. We refer to C.P. and B.P.
collectively as the “Children.”
We glean the following from the trial court’s August 23, 2019 opinion:
Father filed a complaint for custody of the Children on November 11, 2010,
that resulted in the entry of a consent custody order on January 27, 2011,
J. A02042/20
wherein the parties agreed to share legal and physical custody of the Children.
On August 11, 2011, Father sought modification. Following the entry of a
proposed custody order and exceptions filed thereto by Father, the parties
entered into a consent custody order on February 6, 2012, wherein they
agreed to share legal and physical custody and wherein they also agreed that
the Children would attend public school in Upper St. Clair, Allegheny County.
On February 5, 2013, Father filed a petition to modify the February 6, 2012
consent custody order, which he later withdrew.
On February 21, 2017, Mother filed a petition for psychological
counseling for the Children and for co-parenting counseling. The trial court
scheduled a hearing on the matter. On May 16, 2017, Mother and Father
entered into a consent order wherein they agreed to the appointment of a
guardian ad litem (“GAL”) to represent the Children. Thereafter, following
the hearing held on Mother’s petition for psychological counseling for the
Children and for co-parenting counseling, Mother and Father entered into a
consent order on July 24, 2017, wherein they agreed to have the Children
psychologically evaluated, to follow any and all recommendations of the
evaluator, and to participate in co-parenting counseling. By October 27, 2017,
however, Father had failed to cooperate with effectuating the Children’s
psychological counseling and had refused to begin co-parenting counseling.
As a result of a petition filed by Mother, the trial court entered an order on
November 20, 2017, that ordered Mother and Father, pursuant to the July 24,
-2-
J. A02042/20
2017 consent order, to have the Children begin psychological counseling. By
separate order entered on the same date, the trial court directed that
co-parenting counseling remain open pending further action.
On May 3, 2018, Mother filed a contempt petition against Father,
alleging that B.P. had failed to visit with Mother pursuant to the existing
custody order. Thereafter, Mother filed an amended contempt petition. On
May 8, 2018, Father filed a petition to modify the existing custody order,
requesting that he be awarded physical custody of B.P. The trial court issued
a proposed custody order, and Father filed exceptions. On July 19, 2018, the
trial court consolidated Mother’s contempt petitions and directed that they be
heard on August 23, 2018, with Father’s exceptions to the proposed custody
order. Thereafter, a mediation was scheduled, but it proved unsuccessful.
On December 12, 2018, the trial court conducted in camera interviews
of the Children. On December 14, 2018, the parties stipulated to an
abbreviated trial in which they would testify in a limited capacity. The parties
also stipulated to the admission of all exhibits and waived a detailed
best-interest analysis of the 16 factors under 23 Pa.C.S.A. § 5328(a) as
concerned C.P. The parties further agreed to follow the GAL’s
recommendation regarding B.P.’s custody.
Following trial, the trial court made the following findings of fact:
[Mother and Father] love [the C]hildren. B.P. is
seventeen (17) years old and has completed the
tenth (10th) grade, and C.P. is fourteen (14) years old
and has completed the eighth (8th) grade. The
-3-
J. A02042/20
[C]hildren have attended public school in the
Upper St. Clair School District since 2012. During the
2018/2019 school year, B.P. started school at
7:20 a.m. and C.P. started school at another school
within the district at 8:30 a.m.
The parties are divorced and have both since
remarried. Father has resided in Upper St. Clair,
Allegheny County for approximately eight (8) years.
He resides with T.P. (“Step-Mother”) and their
daughter, along with Step-Mother’s son from a
previous relationship, and the two (2) [C]hildren to
this action fifty percent (50%) of the time. Father is
employed as a clinical consultant manager.
Step-Mother has been a pilates instructor for eight (8)
years, and was previously employed as an office
manager for her family-owned company. Father is
required to travel with his job, but typically works
daylight, finishing at approximately
5:30 p.m. – 6:00 p.m. Mother has continually
resided in Beaver, Beaver County with S.M.
(“Step-Father”) and their daughter and the two (2)
[C]hildren to this action fifty percent (50%) of the
time. Mother is the owner of a pizza shop in Beaver
and manages real estate ventures. Mother’s work
schedule is flexible. Step-Father is a mortgage broker
and manages fifteen (15) properties in Pennsylvania
and Florida.
The parties maintained a shared Custody Order, as it
pertained to C.P. Mother testified that the shared
schedule was not working. During Trial, Father
testified that the shared schedule for C.P. was
working; previously he had said the schedule was not
working.
The parties reside approximately forty-five (45)
minutes away from each other. Mother has been
responsible for the majority of the transportation
required by the Order. Mother has utilized
accommodations offered at Upper St. Clair, as to the
school arrival and departure times for the [C]hildren,
to assist her with the distance she has to travel to get
the [C]hildren to school on her days of custody.
-4-
J. A02042/20
Father and Step-Mother were opposed to those
accommodations, as was B.P.
B.P.’s and C.P.’s doctors, medical, vision, and dentist
have remained in Beaver County. The [C]hildren’s
pediatrician, in 2017, along with a subsequent
psychological evaluation that had been agreed upon,
recommended counseling for the [C]hildren.
Testimony indicated the counseling was for a motor
tic of C.P. and issues that Mother saw that the
[C]hildren were experiencing. The [trial c]ourt, at the
request of Mother, was required to intervene to have
the counseling begin per the recommendation of the
psychological evaluation. Father remained opposed to
the counseling to which he had agreed.
In October of 2018, the parties attended one (1)
intake session of court–ordered co-parenting
counseling and have not resumed. Mother attended
separate counseling as recommended by the
co-parenting counselor. Father was not willing to
voluntarily attend further co-parenting counseling.
In December of 2018, Father testified his work
schedule was flexible, and he could assist with
transportation. In June of 2019, Father testified he
was willing to assist with transportation around his
work schedule, but he would not be able to transport
until approximately 5:30 p.m. or 6:00 p.m., after his
work hours, or on weekends. In Father’s proposed
custody schedule submitted on August 8, 2019, his
transportation recommendation was different than his
prior testimony, in that he was now able to transport
in the mornings to school. Step-Mother testified that
she could not assist with transportation due to her
work schedule, which she was not willing to change,
and her family schedule. Mother’s testimony was
consistent, in that her work schedule is flexible.
Step-Father assists Mother with transportation.
The long procedural history portion of this Opinion
accurately reflects the lengthy and contentious nature
of this case. Most recently, the tension between the
parties began with the older minor child, B.P., and his
-5-
J. A02042/20
resistance in following the Custody Order during
Mother’s periods of custody. In February of 2018, for
reasons disagreed upon by the parties, B.P. began to
refuse to visit Mother pursuant to the Custody Order
and Father did not follow the Order. Mother did not
see B.P. for lengthy periods of time and filed a
Contempt Petition and an Amended Contempt
Petition.
Although the parties blamed each other for the issues
which transpired surrounding custody of B.P., they
reached a new agreement during Trial as to custody
of B.P., as recommended by the GAL, in which B.P.
spent less time with Mother and more time with
Father. While Father agreed to the GAL’s
recommendation, he testified that he thought it would
be best for B.P.’s emotional well-being to spend even
less time with Mother.
At Trial, Mother testified that B.P. was beginning to
revert back to his “old self” in the past two (2) months
and he was attending visits pursuant to the parties’
new agreement. Because the parties reached a
resolution as to custody of B.P., the Trial was for
custody of C.P. The [trial c]ourt is pleased to hear B.P.
is maintaining a relationship with both parents.
C.P. was described by multiple witnesses as a popular,
honest, well-liked, and adaptable adolescent who is a
natural leader. C.P. is passionate about sports,
specifically football, and has excelled in both his
school team at Upper St. Clair and a recreational
league in Beaver County. C.P.’s assistant football
coach, T.W., from Upper St. Clair and the football
coach, Dr. J.B., from Beaver both testified for the
parties, at length, as to their respective football
requirements and schedules. Both parties
demonstrated an interest and desire for C.P. to
participate in a school football program.
Upper St. Clair School District has a back to school
information form, which has a hierarchy as to the
parent residing in the school district. The parent not
residing in the school district is considered secondary;
-6-
J. A02042/20
thus, the secondary parent gets only the secondary
emails. The parent in the school district receives all
emails concerning the [C]hildren. An example of the
email hierarchy was the lack of notice when a
504 meeting was held at Upper St. Clair for one (1) of
the [C]hildren which Father and Step-Mother
attended. No notice of this meeting was sent to
Mother. Teachers email the in-district parent and
have not always recognized there was a secondary
parent, an outside-the-district parent. Mother was
able to be placed on some email chains. Step-Mother
was on most emails with Mother and Father;
Step-Father was not.
Academically, C.P.’s middle school principal, J.D.,
testified that C.P.’s percentage grades translated into
mostly B’s and C’s, but he believed C.P. has the
potential to be a B-student. J.D. also testified that
C.P. did well in classes with “tougher” teachers, and
that C.P. needed to become more focused. A review
of C.P.’s grades reflected some grades lower than C’s,
and that his grades had deteriorated from 7th grade to
8th grade.
C.P. has had some recent disciplinary issues, both in
and out of school. C.P. is described as being very
honest and forthcoming to his parents and adults; he
admitted to his parents that he and a friend bought
and tried marijuana while at Mother’s during her
custody. C.P.’s principal, J.D., stated that C.P. had
some adolescent behavior-type disciplinary problems.
C.P. brought a razor to school with the intention of
using it to cut his friend’s hair. C.P. was present
during a fight off school grounds, which was recorded
on a cell phone. Another incident, revealed in exhibits
submitted, showed a call was made by the school
concerning C.P. for being disrespectful towards
females. Another call from the school occurred
concerning C.P.’s phone and swearing to a teacher.
C.P. did not specifically recognize these issues as
major problems or concerns. There was also
testimony that C.P., along with a friend from Upper
St. Clair, carved a swastika on his calf. The extent to
which C.P. was disciplined by the parties for these
-7-
J. A02042/20
incidents was a point of contention at Trial, with the
parties disagreeing as to the proper way to address
the aforementioned situations, or whether to
discipline C.P. at all.
While in Mother’s custody, C.P. works part-time at
Mother’s pizza shop and works on real estate flipping
with his [M]other and [S]tep-[F]ather. C.P. and B.P.
attend church with Mother and Step-Father. C.P.
weightlifts in Upper St. Clair and in the Beaver area at
a facility, “Country Strong[.”] He played on the
8th grade football team in Upper St. Clair, as well as
played lacrosse and wrestled, and he played on a
recreational football team in Beaver. C.P. has friends
in both Upper St. Clair and Beaver.
At the time of Trial, Mother proposed that she be
awarded custody of C.P. during the school year on a
two-week rotating schedule. During the first week,
Mother would exercise custody Monday through Friday
and during the second week, Monday through
Saturday. As such[,] Mother proposed C.P. attend
school in the Beaver Area School District.
Conversely, Father proposed no changes be made to
the school or custody schedule pertaining to C.P., but
did offer to assist with transportation. Father stated
that he would request weekend custody time with C.P.
if he were to attend Beaver Area School District.
After Trial and pending a written Opinion and Order,
[the trial c]ourt issued an Order on July 31, 2019
designating the school district in which C.P. would be
attending. Additionally, since the custody schedule
proposals presented by the parties at Trial were not
specific, and Father’s availability for transportation
was conflicting, the July 31, 2019 Order also directed
the parties and GAL to submit a proposed custody
schedule with C.P. attending the Beaver Area School
District by the close of business on August 8, 2019.
On August 1, 2019, the [trial c]ourt issued an Order
extending the date for which [the trial c]ourt had to
enter a decision for a period not to exceed fifteen (15)
-8-
J. A02042/20
days from the date the custody schedule proposals
were due in order for the [trial c]ourt to consider said
proposals.
On August 7, 2019, Mother filed an Emergency Special
Relief Petition, seeking an Order requiring Father to
permit C.P. to attend mandatory football practices.
Father reasoned that a football schedule was not built
in to the existing Order and would not permit C.P. to
participate or attend the practices in the Beaver Area
School District. Argument was held by counsel of
record for both parties and the GAL and a Temporary
Custody Order, in the best interest of C.P., was issued.
On August 15, 2019, Father, through counsel, filed an
Emergency Motion for Reconsideration of the [trial
c]ourt’s July 31, 2019 Order, specifically requesting
the [trial c]ourt to reconsider the school district. The
Motion was denied after argument by counsel for the
parties. The GAL acknowledged at the Motion that
C.P. was doing well.
Trial court opinion, 8/23/19 at 4-8.
On August 23, 2019, the trial court entered the custody order which,
among other things, modified C.P.’s custody schedule and required that C.P.
be enrolled in and attend the Beaver Area School District beginning in the
2019/2020 school year. Father filed a timely notice of appeal, together with
a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i). The trial court then filed a Rule 1925(a)(2)(ii)
opinion.
Father raises the following issues for our review:
1. Whether the [t]rial [c]ourt erred in modifying
the custody order in a fashion as to separate
two teenage [sic] brothers in a significant
fashion and requiring the brothers to attend
-9-
J. A02042/20
different schools in different districts for their
high school years[?]
2. Whether the [t]rial [c]ourt erred in modifying
the previous existing Order of Court regarding
custody and in doing so required the younger
child to transfer to a different school district in
a different county[?]
3. Whether the [t]rial [c]ourt erred in modifying
the custody order so as to provide significantly
less custodial time to [F]ather who had
previously enjoyed a shared custody
arrangement with [C.P.?]
Father’s brief at 13.
In reviewing a custody order, our scope is of the
broadest type and our standard is abuse of discretion.
This Court 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. We defer to the credibility
determinations of the presiding trial judge, who
viewed and assessed the witnesses first-hand. We,
however, are not bound by the trial court’s deductions
or inferences from its factual findings, and ultimately,
the test is whether the trial court’s conclusions are
unreasonable as shown by the evidence of record. We
may reject the trial court’s conclusions only if they
involve an error of law, or are unreasonable in light of
the sustainable findings of the trial court.
When a trial court orders a form of custody, the best
interest of the child is paramount. A non-exclusive list
of factors a court should consider when awarding
custody are set forth at 23 Pa.C.S.A. § 5328(a).
(1) Which party is more likely to encourage
and permit frequent and continuing
contact between the child and another
party.
- 10 -
J. A02042/20
(2) The present and past abuse committed by
a party or member of the party’s
household, whether there is a continued
risk of harm to the child or an abused
party and which party can better provide
adequate physical safeguards and
supervision of the child.
(2.1) The information set forth in section
5329.1(a) (relating to consideration
of child abuse and involvement with
protective services).
(3) The parental duties performed by each
party on behalf of the child.
(4) The need for stability and continuity in the
child’s education, family life and
community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child,
based on the child’s maturity and
judgment.
(8) The attempts of a parent to turn the child
against the other parent, except in cases
of domestic violence where reasonable
safety measures are necessary to protect
the child from harm.
(9) Which party is more likely to maintain a
loving, stable, consistent and nurturing
relationship with the child adequate for
the child’s emotional needs.
(10) Which party is more likely to attend to the
daily physical, emotional, developmental,
educational and special needs of the child.
- 11 -
J. A02042/20
(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).
P.J.P. v. M.M., 185 A.3d 413, 417-418 (Pa.Super. 2018) (internal citations,
quotation marks, and brackets omitted).
Following consideration of the factors set forth in Section 5328(a), the
trial court may award any of the following types of custody, so long as it is in
the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
- 12 -
J. A02042/20
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5323(a).
Here, the trial court found that Factors 1, 8, and 13 weighed in Mother’s
favor. The trial court further determined that Factors 3, 10, 11, and 12
weighed in favor of neither party and that Factors 2, 2.1, 14, and 15 were
inapplicable. With respect to Factor 4, which is the need for stability and
continuity in the child’s education, family life, and community life, the trial
court determined that the factor was “relatively neutral,” noting that:
C.P. views his parents as a source of strength and
stability in his education and family life. Both Father
and Mother are employed and provide a home for their
family. C.P. attends church with his mother. He
confides in and trusts both parents to support him.
C.P. has friends in both communities.
C.P. has a strong sense of family that is attributed to
his parents. C.P. has a good relationship with
[S]tep-[M]other. C.P. is especially bonded with his
[S]tep-[F]ather. Testimony revealed Step-Father has
involvement in C.P.’s life with coaching football,
transportation, weightlifting, and teaching him about
real estate ventures. Step-Father has demonstrated
an ability to remain neutral and respectful in this case.
Trial court opinion, 7/19/19 at 13.
The trial court further determined that Factor 5, which is the availability
of extended family, was relatively neutral, noting that C.P.’s extended family
predominantly resides in Beaver County, but that C.P. remains close with his
paternal and maternal relatives. (Id. at 13-14.)
- 13 -
J. A02042/20
The trial court also found Factor 6, which is the child’s sibling
relationships, to be relatively neutral, noting that
C.P. has half-siblings in both parties’ households with
whom he has good relationships. Additionally, C.P.
has a step-sibling at Father’s home with whom he has
a good relationship even though they are not close,
predominantly due to the difference in their ages.
While brothers, C.P. and B.P., are close, they have
different interests and groups of friends. The current
custody schedule is different for both [C]hildren and
it has not negatively impacted their relationship. C.P.
and B.P. have continued to see each other and have
had the ability to foster their relationship. They both
agree that having the same schedule is irrelevant to
them. Th[e trial c]ourt is confident that these siblings
will continue to foster their relationship.
Id. at 14.
With respect to Factor 7, which is the well-reasoned preference of the
child, the trial court found this factor to be neutral, but noted that its
consideration of this factor provided guidance. The trial court opined:
As described by witnesses and seen by th[e trial
c]ourt, C.P. is a mature, polite, honest, and adaptable
minor who loves both of his parents. He has, through
these proceedings, become more and more guarded
in his comments. He has a great relationship with
[F]ather and does not have a bad relationship with
[S]tep-[M]other. He has a really good relationship
with [M]other and a good relationship with
[S]tep-[F]ather. C.P. was clear that he does not want
to be involved in Court litigation and hopes he does
not have to be interviewed again. C.P. has agreed to
follow whatever the [trial c]ourt directs.
The [trial c]ourt is concerned that C.P. is feeling
pressure placed upon him by Father. The GAL
expressed concern with the pressure C.P. is feeling.
- 14 -
J. A02042/20
Testimony and argument revealed Father questioning
what C.P. had said to the [trial c]ourt and the GAL.
Father has tried to explain how to interpret differently
what C.P. has said because Father believed C.P. could
not have expressed a positive statement about
[M]other or Beaver Area.
It is noted that the GAL is supportive of a change in
the custody schedule and school district for C.P. The
GAL indicated in her Report to [the trial c]ourt that
C.P. had expressed a willingness to spend more time
at Mother’s home in the Beaver area with a change in
school districts. The GAL testified that after either
hearing or seeing what the GAL wrote in her report
about spending more time at Mother’s home and
changing schools, C.P. called the GAL while in Father’s
custody and back-peddled [sic], saying that was not
what he meant. The [trial c]ourt hears that C.P. may
have made, to th[e trial c]ourt and the GAL,
inadvertent positive statements about Beaver, along
with a lack of enthusiasm and acknowledgement of
influences about Upper St. Clair then became
pressured to recant what he said.
The [trial c]ourt knows that C.P. does not want to hurt
either parent in any way and loves them both. The
parties need to recognize C.P.’s love for both parents.
They should not put him in the middle, and should not
fault him, criticize him, or question him about the
statements he has made in these proceedings. Both
parents should support C.P. in his studies and
endeavors.
C.P.’s position, at this point, is that it is not about the
school, as that does not matter where he attends, he
will do fine; it is about seeing both parents. C.P. does
not want his parents to worry about a check and
balance system of time, as he loves them both
equally. C.P. just wants this custody action done.
Id. at 14-15.
- 15 -
J. A02042/20
The trial court determined that Factor 9, which is which party is more
likely to maintain a loving, stable, consistent, and nurturing relationship with
child adequate for child’s emotional needs, slightly favors Mother. The trial
court explained that
[b]oth parties maintain loving, stable, consistent, and
nurturing relationships in their respective homes,
which are accommodating for their families to support
the adequate needs of C.P.
Father’s inappropriate handling of the custody of B.P.,
in which Father’s behavior in failing to follow the Court
Order had a negative impact on B.P.’s relationship
with [M]other, does not adequately provide for the
minor’s emotional needs. The pressure Father has
exerted upon the [C]hildren does not adequately
support their emotional needs. The [trial c]ourt
cautions Father so that similar circumstances do not
resurface.
Id. at 16.
With respect to Factor 16, which permits the trial court to consider any
other factor that it deems relevant, the trial court first set forth a comparison
of Upper St. Clair School District and Beaver Area School District and found
both institutions “impressive and largely comparable” with respect to
scholastic offerings, rankings, extracurricular programs, such as football,
which C.P. is “passionate” about.1 (Id. at 18-19.) The trial court then found
the following relevant:
The [trial c]ourt spent hours reviewing the parties’
exhibits and submitted written communications. The
1 We note that the record reflects that at the time of trial, C.P. had completed
8th grade and was preparing to enter high school.
- 16 -
J. A02042/20
communications presented were only partial emails,
text messages, or snapshots as to issues that needed
resolved. These snapshots depicted many
contentious dialogues, derogatory verbiage, and an
unwillingness to communicate to resolve issues.
It is noted that attached to the Emergency Petition
filed by Mother, three (3) weeks after the conclusion
of Trial, was a communication to Mother by Father in
which he continued to use profanity in referring to
Mother, as well as suggesting she is exposing C.P. to
evil while in her custody. Father’s continual degrading
tone in his communications, as well as his refusal to
support C.P. in attending his mandatory practices,
was disheartening to the [trial c]ourt and contrary to
a supportive transition for C.P. into his new school
district.
It is further noted that on August 15, 2019, an
Emergency Motion for Reconsideration of the [trial
c]ourt’s July 31, 2019 Order was filed by Father.
During argument by his counsel, there were continual
claims that what C.P. had said was not really what he
meant. Th[e trial c]ourt is concerned that Father is
continuing to assert pressure on C.P. The GAL, at this
Motion, expressed C.P. was doing well.
Id. at 19-20.
Father first claims that the trial court erred in modifying the custody
order because, pursuant to the family unity doctrine, no compelling reason
existed to separate C.P. and B.P.
[T]he 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
- 17 -
J. A02042/20
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.
Johns v. Cioci, 865 A.2d 932, 942-943 (Pa.Super. 2004) (internal citations
omitted).
Father claims that the trial court “alleged” that compelling reasons
existed but “offered no such reasons.” (Father’s brief at 26.) Father is
mistaken.
In its August 23, 2019 opinion, the trial court concluded that:
B.P. and C.P. are intelligent and polite young men who
clearly love both their parents. Both parties provide
the [C]hildren with love, support, and affection. Both
parties have been significant caregivers. Both parties
have been loving and caring parents who have the
best interests of the [C]hildren at heart, as they each
see it. Both [Children] have great potential and need
the guidance and support of both parents to achieve
their full capacity.
A policy consideration is to raise siblings together, but
compelling interests may warrant a separation of
two (2) siblings. The siblings in this case already have
different schedules. The [C]hildren have maintained
a good relationship and bond with one another,
regardless of their different schedules, their age
difference, and their different interests.
Both parties love their [C]hildren. However, [the trial
c]ourt is concerned that Father’s hostility and
negativity towards Mother has already helped to
alienate [B.P.] from Mother. Father’s actions and lack
of encouragement of a relationship between B.P. and
- 18 -
J. A02042/20
Mother demonstrate disrespect for Mother’s
relationship with [C]hildren.
The [trial c]ourt is not addressing B.P. in this Opinion
as it relates to the custody factors and school district,
as an agreement concerning custody as it pertains to
him has been previously agreed upon and was
presented as part of the Proposed Order. B.P. is
seventeen (17) years of age and will tum
eighteen (18) in only a few months. He has over the
months begun to mend his relationship with [M]other.
Th[e trial c]ourt hopes that Father will be supportive
of that relationship with Mother and encourage it.
The [trial c]ourt finds Mother is more likely to
encourage, permit, and ensure frequent contact
between C.P. and Father. Mother has not spoken ill
of Father to the [C]hildren and has been supportive of
their relationship with Father. The [trial c]ourt is
hopeful that Father will be supportive of C.P. and learn
to communicate with Mother so, together[,] they can
show their support for C.P. This Order will ensure
contact with both parties for C.P. to grow and continue
to flourish into the bright young man he desires to be.
Trial court opinion, 8/23/19 at 20-21.
Additionally, in its Rule 1925(b) opinion, the trial court relied on this
court’s decision in L.F.F. v. P.R.F., 828 A.2d 1148 (Pa.Super. 2003), as
factually and legally analogous. In L.F.F., this court affirmed the custody
order that resulted in sibling separation after determining that the record
supported the trial court’s conclusion that father’s severe animosity toward
mother and its potential to result in one child’s alienation from mother if father
was awarded primary physical custody of that child constituted a compelling
reason to separate that child from his sibling. Id. at 1154.
- 19 -
J. A02042/20
Here, our review of the record, which included the trial transcripts and
exhibits of electronic communications from Father to Mother, as well as the
GAL reports, supports the trial court’s conclusion that Father’s hostility and
negativity toward Mother, as well as his demonstrated disrespect for Mother’s
relationship with her Children, creates the potential that C.P. may become
alienated from Mother and, therefore, constitutes a compelling reason to
separate the Children.
Father next claims that the trial court’s “justification” to separate the
Children was not supported by the record and was, therefore, not
“compelling.” (Father’s brief at 28.) Although our disposition of Father’s first
issue also disposes of this issue, we note that Father’s argument on this issue
does nothing more than set forth select testimony in an effort to persuade us
to reach a different result. It is well settled that this court cannot reverse a
trial court’s decision merely because the record could support a different
result. See In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003).
When we review a custody order, “the test is whether the trial court’s
conclusions are unreasonable as shown by the evidence of record.” P.J.P.,
185 A.3d at 417. Our thorough review of the record in this case demonstrates
that competent record evidence supports the trial court’s factual findings and
its modified custody order is reasonable in light of those findings.
- 20 -
J. A02042/20
Father finally complains that the trial court erred in modifying the
custody order in a manner that significantly decreased Father’s custodial time
with C.P.
At the outset, we note that Father mistakenly asserts that the
August 23, 2019 custody order awarded Mother primary physical custody of
C.P. and awarded Father partial physical custody. Father is mistaken. The
custody order did not change the form of custody. The custody order retained
the shared physical custody of C.P. that Mother and Father have always
enjoyed, but modified the custody schedule after the trial court determined
doing so would be in C.P.’s best interest.
That being said, in Father’s argument on this issue, Father highlights
select portions of the trial court’s August 23, 2019 opinion, as well as select
testimony, in an effort to, once again, persuade us to reach a different result.
Once again, however, “the test is whether the trial court’s conclusions are
unreasonable as shown by the evidence of record.” P.J.P., 185 A.3d at 417.
And once again, we find that competent record evidence supports the trial
court’s factual findings, and its modified custody order is reasonable in light
of those findings.
Order affirmed.
- 21 -
J. A02042/20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2020
- 22 -