K.G. v. E.D.

J-A13029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.G. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
E.D.
Appellee No. 2982 EDA 2013
Appeal from the Order entered September 27, 2013
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2011-05320
K.G. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
E.D.
Appellant No. 3128 EDA 2013
Appeal from the Order entered September 27, 2013
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2011-05320
BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 30, 2014
Cross-Appellants, K.G. (Mother) and E.D. (Father), both appeal from
the September 27, 2013 order granting them shared legal and physical
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*
Former Justice specially assigned to the Superior Court.
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custody of their daughter, G.D. After thorough review, we reverse and
remand for further proceedings.1
We summarize the relevant factual and procedural history of this case
as follows. In September 2009, Mother and Father met on the dating
website Match.com. Trial Court Opinion, 11/27/13, at 4. At the time the
parties met, Father’s marital status was listed as divorced in his site profile.
Id. at 4, 8-9. Despite this listing, Father was in fact married to M.D. (Wife).
Id. at 4-5, 9. Mother and Father began dating in September 2009. Id. at
9. In the spring of 2010, Mother became pregnant with G.D., who was
subsequently born in December of 2010. Id. at 5, 9. Father’s name was
not listed on G.D.’s birth certificate. Id. at 5-6.
In late-January 2011, Mother signed adoption paperwork prepared by
Father’s attorney. Id. at 6, 8, 10. In doing so, Mother executed her
consent to the adoption of G.D. by Father and Wife. Id. at 8, 10-11. Father
subsequently obtained physical custody of G.D. from Mother on February 27,
2011. Id. at 7, 11.
On March 2, 2011, Father and Wife filed a petition to confirm Mother’s
consent to G.D.’s adoption and a petition for Wife’s adoption of G.D. On
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1
By unpublished memorandum, on August 15, 2014, this Court remanded
this matter and retained jurisdiction for the trial court to file a supplemental
opinion, addressing its factual determinations underlying its entire custody
finding. See K.G. v. E.D., --- A.3d --- (Pa. Super. 2014) (unpublished
memorandum). The trial court filed its supplemental opinion with this Court
on September 26, 2014.
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March 7, 2011, Mother filed a pro se petition to revoke her consent to G.D.’s
adoption. Mother alleged she executed this consent due to the fraud and/or
duress of Father. See Trial Court Opinion, 11/27/13, at 2; Mother’s
Complaint for Emergency Custody, 3/7/11, at ¶ 7. Also on March 7, 2011,
Mother filed a pro se emergency custody petition. Within this filing, Mother
alleged G.D. was living in Maryland with Father and Wife, and that Father
was denying Mother contact with G.D. Mother’s Complaint for Emergency
Custody, 3/7/11, at ¶ 7. Father subsequently filed a motion to stay the
custody action pending the outcome of the adoption action, which the trial
court granted on March 25, 2011.
On May 27, 2011, the trial court issued an agreed-upon temporary
custody order. This temporary order granted Father primary physical
custody of G.D. and Mother partial physical custody of G.D. on alternating
weekends. Trial Court Opinion, 11/27/13, at 2; Temporary Order, 5/26/11,
at 2-5. This order was to remain in effect until the conclusion of the
orphans’ court action. Temporary Order, 5/26/11, at 4-5.
Following a four-day hearing, the orphans’ court granted Mother’s
petition to revoke her consent to G.D.’s adoption on or around October 12,
2011. The orphans’ court concluded the consent had been procured by
fraud and duress. See Trial Court Opinion, 11/27/13, at 2. The orphans’
court dismissed, with prejudice, Father and Wife’s petition to confirm
consent and petition for adoption. Id. at 2-3. By a separate order, the
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orphans’ court directed the May 27, 2011 temporary custody order to remain
in full force and effect pending further order of court. Trial Court Order,
10/13/11.
Father and Wife appealed the orphans’ court order to this Court. See
In re Adoption of G.D., 50 A.3d 245 (Pa. Super. 2012) (unpublished
memorandum), appeal denied, 53 A.3d 51 (Pa. 2012). Due to the pending
appeal, the trial court stayed all further custody proceedings by order dated
December 14, 2011. The trial court directed that the May 27, 2011
temporary custody order would remain in full force and effect during the
pendency of Father and Wife’s appeal.
While awaiting our disposition of that appeal, Father filed two
emergency petitions seeking an order enjoining Mother from disclosing the
details of the custody and orphans’ court litigations. Father’s Emergency
Petition to Enjoin, 1/24/12; Father’s Emergency Petition to Enjoin, 2/16/12.
Mother also filed an emergency petition to correct and/or clarify the order of
court and for appointment of Guardian Ad Litem (GAL). Mother requested
that the temporary order be corrected to grant her shared legal custody.
Mother’s Emergency Petition, 4/25/12, at 4.2
By memorandum filed on May 18, 2012, this Court affirmed the
October 12, 2011 orphans’ court order. See G.D., supra. On June 12,
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2
We note that Mother’s petition does not contain pagination. Therefore, we
have assigned each page a sequential page number for ease of reference.
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2012, Mother filed a petition to lift the stay in the custody action and for an
immediate hearing. However, Father and Wife filed a petition for allowance
of appeal with our Supreme Court on June 18, 2012. Id. Our Supreme
Court denied that petition on July 17, 2012. Id.
Following a conference on Mother’s emergency petition to correct
and/or clarify the custody order, the trial court granted Mother and Father
shared legal custody on July 31, 2012. Trial Court Order, 7/31/12, at ¶ 1.
The trial court subsequently listed this matter for trial. Trial Court Order,
8/2/12 at 1. The trial commenced on March 25, 2013, and continued
through March 26, April 25-26, June 3-5 and 10-11, August 5, 7, 9, and 12-
14, 2013. At trial, Mother and Father’s testimony differed significantly. See
Trial Court Opinion, 11/27/13, at 4-11.
Following this protracted custody proceeding, the trial court granted
Mother and Father shared legal and physical custody on an alternating
weekly basis. Trial Court Order, 9/27/13, at 8. The trial court directed
Mother and Father to attend co-parenting counseling “until such time as the
counselor deems it no longer necessary, or, until further order of the Court.”
Id. at 10. By this order, the trial court also denied Father’s petitions to
enjoin Mother from disclosing the details of the orphans’ court litigation and
the custody matter on the Internet, to the media, or to any other third
party. Id. at 11.
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On October 24, 2013, Mother filed a timely notice of appeal. Mother
failed to file a concise statement of errors complained of on appeal with this
notice. See Pa.R.A.P. 1925(a)(2)(i) (providing that a concise statement of
matters complained of on appeal shall accompany a notice of appeal in a
children’s fast track case). On October 29, 2013, the trial court directed
Mother to file her concise statement within twenty-one days; Mother timely
complied with that order. Because no party claims prejudice resulted from
Mother’s failure to file a concise statement with her notice of appeal and
because Mother timely complied with the trial court’s order, we will not
quash or dismiss her appeal. See In re K.T.E.L., 983 A.2d 745, 747 (Pa.
Super. 2009) (holding that an appellant’s failure to strictly comply with
Pa.R.A.P. 1925(a)(2)(i) did not warrant an application of the waiver rule, as
no court order had been violated, and there was no prejudice to any party).
On November 7, 2013, Father filed a timely notice of cross-appeal and
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i). See Pa.R.A.P. 511 (stating, “[t]he timely filing of an appeal
shall extend the time for any other party to cross appeal”); Pa.R.A.P. 903
(providing, “if a timely notice of appeal is filed by a party, any other party
may file a notice of appeal within 14 days of the date on which the first
notice of appeal was served[ ]”). The trial court subsequently filed its Rule
1925(a) opinion on November 27, 2013. Following remand by this Court,
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the trial court filed its supplemental opinion on September 26, 2014. See
K.G. v. E.D., --- A.3d --- (Pa. Super. 2014) (unpublished memorandum).
On appeal, Mother raises the following issue for our review.
[I.] Should the child custody order appealed from
be reversed where the statutory factors in 23
Pa.C.S.[A.] § 5328[(a)] do not support the
custody determination, and the trial court’s
findings of fact and conclusions of law are
unsupported by the record?
Mother’s Brief at 3. Additionally, Father raises the following three issues for
our review.
I. Should the [c]hild custody order appealed from
be reversed where the statutory factors in 23
Pa.C.S.[A.] § 5328[(a)] do not support the
custody determination by the [t]rial [c]ourt,
and the [t]rial [c]ourt’s findings of fact and
conclusions of law are unsupported by the
record[?]
II. Should the [c]hild custody order appealed from
be reversed when the [t]rial [c]ourt committed
prejudicial error in excluding evidence offered
by [Father] concerning Mother’s son and how
Mother raised and cared for her son[?]
III. Should the [c]hild custody order appealed from
be reversed when the [t]rial [c]ourt abused its
discretion in failing to enjoin Mother from
disclosing the details of the [a]doption and
[c]ustody matters on the [I]nternet, to the
media or to any person or entity not associated
with the [c]ustody or [a]doption matters[?]
Father’s Brief at 1.
The scope and standard of our review in custody matters is as follows.
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[T]he appellate court is not bound by the
deductions or inferences made by the trial
court from its findings of fact, nor must the
reviewing court accept a finding that has no
competent evidence to support it. … However,
this broad scope of review does not vest in the
reviewing court the duty or the privilege of
making its own independent determination. …
Thus, an appellate court is empowered to
determine whether the trial court’s
incontrovertible factual findings support its
factual conclusions, but it may not interfere
with those conclusions unless they are
unreasonable in view of the trial court’s factual
findings; and thus, represent a gross abuse of
discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
Super. 2009) (quoting Bovard v. Baker, 775 A.2d
835, 838 (Pa. Super. 2001)). Moreover,
[O]n issues of credibility and weight of
the evidence, we defer to the findings of the
trial [court] who has had the opportunity to
observe the proceedings and demeanor of the
witnesses.
The parties cannot dictate the amount of
weight the trial court places on evidence.
Rather, the paramount concern of the trial
court is the best interest of the child.
Appellate interference is unwarranted if the
trial court’s consideration of the best interest
of the child was careful and thorough, and we
are unable to find any abuse of discretion.
R.M.G., Jr., supra at 1237 (internal citations
omitted). The test is whether the evidence of record
supports the trial court’s conclusions. Ketterer v.
Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (parallel citations
omitted).
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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).
Instantly, because the custody trial commenced in March 2013, the
Child Custody Act (Act), 23 Pa.C.S. §§ 5321–5340, is applicable. See
C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (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). Section
5328 of the Act provides an enumerated list of factors a trial court must
consider in determining the best interests of a child when awarding any form
of custody.
§ 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
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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.
(10) Which party is more likely to attend to
the daily physical, emotional,
developmental, educational and special
needs of the child.
(11) The proximity of the residences of the
parties.
(12) Each party’s availability to care for the
child or ability to make appropriate child-
care arrangements.
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(13) The level of conflict between the parties
and the willingness and ability of the
parties to cooperate with one another. A
party’s effort to protect a child from
abuse by another party is not evidence of
unwillingness or inability to cooperate
with that party.
(14) The history of drug or alcohol abuse of a
party or member of a party’s household.
(15) The mental and physical condition of a
party or member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a)(1)-(16).3
This Court has stated that, “[a]ll of the factors listed in section
5328(a) are required to be considered by the trial court when entering a
custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)
(emphasis in original).
[In addition,] Section 5323(d) provides that a trial
court “shall delineate the reasons for its decision on
the record in open court or in a written opinion or
order.” 23 Pa.C.S.A. § 5323(d). Additionally,
“section 5323(d) requires the trial court to set forth
its mandatory assessment of the sixteen [Section
5328 custody] factors prior to the deadline by which
a litigant must file a notice of appeal.” C.B. v. J.B.,
65 A.3d 946, 955 (Pa. Super. 2013), appeal denied,
70 A.3d 808 (Pa. 2013).
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3
The Act was amended, effective January 1, 2014, 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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A.V., supra at 822-823. With these standards in mind, we turn to the
merits of this appeal.
Mother argues that the trial court abused its discretion by not granting
her sole legal and primary physical custody of G.D. Mother’s Brief at 51.
The crux of her argument is that the trial court failed to properly consider
and apply the evidence involving Father’s act of fraudulently procuring the
adoption consent in fashioning its custody order. Father similarly argues
that the trial court erred and abused its discretion by not granting him sole
legal and primary physical custody of G.D. Father’s Brief at 48-49, 54. Both
parties contend that the trial court’s conclusions of law lack support within
its factual findings and that the trial court did not properly apply the Section
5328(a) factors. Mother’s Brief at 51; Father’s Brief at 54. Specifically,
Mother contests the trial court’s conclusions as to Section 5328(a)(1), (2),
(8), (11), and (13), while Father contests the conclusions as to Section
5328(a)(1), (2), (3), (4), (8), (10), (11), and (13). Mother’s Brief at 52-59;
Father’s Brief at 54-63.
Upon agreement of the parties, the trial court admitted into evidence
the orphans’ court order granting Mother’s petition to revoke her consent to
G.D.’s adoption, this Court’s memorandum affirming the order, and our
Supreme Court’s denial of Father’s petition for allowance of appeal. N.T.,
3/25/13, at 8-9, 11. In addition to this documentary evidence, Mother and
Father testified with respect to the procurement of the adoption consent and
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the way Father came to exercise sole physical custody of G.D. from February
27, 2011 until the May 27, 2011 temporary order, and sole legal custody
until the July 31, 2012 temporary order. The trial court aptly set forth
Mother’s and Father’s testimony, which differed significantly, in its November
27, 2013 Rule 1925(a) opinion, and we adopt it herein. See Trial Court
Opinion, 11/27/13, at 4-11. Notably, Father testified he does not agree with
the orphans’ court finding that he fraudulently procured the adoption
consent. He stated, “I don’t agree with it, but I am abiding by it.” N.T.,
6/5/13, at 176.
With respect to Mother’s argument that the trial court failed to
properly consider and apply the evidence involving Father’s act of
fraudulently procuring the adoption consent in fashioning its custody order,
the trial court responded that it considered the above-described
documentary evidence, but failed to find the evidence relevant to its best
interest analysis pursuant to Section 5328(a). Trial Court Opinion,
11/27/13, at 16-18; Trial Court Opinion, 9/26/14, at 2-3. The trial court
reasoned that it “is not in a position to ‘redress’ any purported wrongs which
[the orphans’ court] found had occurred in the procurement of the adoption
consent.” Trial Court Opinion, 11/27/13, at 18. Rather, the trial court
explained that it “strictly limited” its determination “to a custodial
arrangement which would be in the best interest of the child … .” Id.; Trial
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Court Opinion, 9/26/14, at 3. Upon thorough review, we are constrained to
conclude that the trial court abused its discretion.
In addressing Section 5328(a)(10), which states the trial court must
consider “[w]hich party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the child[,]” the
trial court found that Mother’s “limited involvement in the child’s life is [not]
indicative in any way that she is less likely to attend” to G.D.’s needs. Trial
Court Opinion, 9/26/14, at 13. Significantly, the trial court based this
finding on “the circumstances of how [ ] Father came to be in the position of
being the primary caretaker, specifically, based on a consent to adopt which
was later found to be fraudulently obtained by [ ] Father.” Id. Further, the
trial court rejected as not credible all of Father’s testimony alleging that
Mother is incapable of providing for G.D.’s daily needs. Id. at 13-14.
Nevertheless, the trial court failed to apply the evidence of Father’s
fraudulent procurement of the adoption consent to its analysis of Section
5328(a)(1), which looks at which party is more likely to encourage and
permit frequent and continuing contact between the child and another party.
Further, the trial court failed to properly apply the evidence that Father
exercised sole physical custody from February 27, 2011, to May 27, 2011,
without Mother’s consent.
In its September 26, 2014 supplemental opinion, the trial court
acknowledged that Father “unilaterally limit[ed]” Mother’s contact with G.D.
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from February 27, 2011, until the May 27, 2011 temporary physical custody
order. Trial Court Opinion, 9/26/14, at 5. However, the trial court excused
Father’s action because the orphans’ court “had not yet rendered a decision
on the accompanying adoption matter at that time, and based on the
Consent to Adopt signed by both parents, [ ] Father had full legal and
physical custody of the child until the May 2[7], 2011 agreed order was
issued.” Id. at 6. Therefore, the trial court found Father’s action of limiting
Mother’s contact with G.D. was “not indicative that [he] is incapable of
permitting and encouraging frequent contact between the child and [ ]
Mother to a degree which would permit the court to deny him shared
physical custody of the child.” Id. The trial court determined that both
parties have demonstrated they are able to permit and encourage frequent
and continuing contact. Order, 9/27/13, at 3.
We conclude the trial court abused its discretion in excusing Father’s
behavior in unilaterally limiting Mother’s contact with G.D. in light of the
competent record evidence that Father fraudulently procured the adoption
consent that resulted in the orphans’ court litigation. As such, we hold as
unreasonable the trial court’s conclusion that Father is able to permit and
encourage frequent and continuing contact between G.D. and Mother.
Additionally, we conclude the trial court abused its discretion to the
extent it based its conclusion under Section 5328(a)(1) on Mother having
consistently exercised partial custody on alternating weekends pursuant to
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the May 27, 2011 temporary order. The competent record evidence reveals
that the May 27, 2011 temporary physical custody order, as well as the July
31, 2012 temporary legal custody order, resulted from the trial court’s
intervention, at Mother’s request, for her custody rights. Moreover, although
Mother exercised her partial physical custody consistently since the
temporary order was entered, conflict and chaos has dominated the parties’
dealings, including at the time of custody exchanges. Mother aptly
summarized the extensive testimonial evidence in this regard as follows.
Father and [Wife] did everything in their power to
ensure that Mother received only the bare minimum
amount of visitation directed by the court, including
obstructing the [custody] exchanges with frivolous
requests, withholding medical information, failing to
provide clothing for the child, … refusing additional
visitation even when they were too ill or occupied to
care for G.D. and were frequently using daycare,
videotaping and shouting [during] the [custody]
exchanges ….
…
Father admitted to hiring private investigators to
follow Mother, [her boyfriend], and other people
Mother knows. He acknowledged that he allowed his
sister … to use information he provided to attack
Mother on the [I]nternet ….
…
Father testified that he does not consult Mother on
G.D.’s school, church, activities, or relocation, and
that they fight and do not get along when it comes
to G.D., although he claims that he wants to co-
parent with Mother. Mother confirm[ed] Father’s
lack of communication on these issues. Father and
[Wife] claimed that Mother consented to [their]
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relocation to Delaware, but disregarded their move
to Maryland in early 2011, claiming simply that
Mother knew they had a house there. Father and
[Wife] accuse Mother of bad parenting, and claim
that she does not show any interest in G.D. [Wife] …
called Mother a prostitute, accused her of having
STD’s, accused her of engaging in drugs, lesbian sex,
and threesomes, and claimed that she had sex with
old men and men at the massage parlor,[4] making
these accusations at least once in front of [Mother’s
boyfriend] and the children,[5] as well as on the
Internet.
Mother’s Brief at 24, 33, 38 (internal citations omitted).
Our review of the testimonial evidence confirms the above summary
and reveals Father and Wife’s animosity toward Mother throughout the
underlying custody proceedings and trial. The relationship between the
parties is so acrimonious that, in the July 31, 2012 temporary order granting
Mother shared legal custody, the trial court directed that neither Mother,
Father, nor Wife “were to participate in the exchange of the custody of the
child. Third party designees were to exchange the child inside the police
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4
Mother testified that, in approximately 2009, she worked at a massage
parlor that required her to conduct topless massages. Mother quit the job
but subsequently returned to it because she needed work. She last worked
at the massage parlor in January of 2010, nearly one year before G.D.’s
birth, and she has not returned. See Mother’s brief, at 10; see also N.T.,
3/25/13, at 24-27; N.T., 6/4/13, at 8. Mother testified that, for the last
three years, she has been employed at a motel as an accounting manager.
N.T., 3/25/13, at 27.
5
In addition to G.D., Mother has one son from a prior relationship, who was
age seven at the time the custody trial commenced. Mother has sole
custody of her son.
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stations in Whitemarsh Township, [in Montgomery County, Pennsylvania]
and Odessa, Delaware.” Trial Court Opinion, 11/27/13, at 3. The trial court
ordered that Mother, Father, and Wife “shall remain in their vehicles at all
times during the exchange of custody.” Trial Court Order, 7/31/12 at 1.
Further, the trial court ordered that there “shall be no videotaping of the
exchange of custody of the Child inside either police station.” Id. at 1.
Mother testified that, prior to the July 31, 2012 temporary order, Father and
Wife videotaped the custody exchanges. Specifically, Mother testified as
follows.
Q. Now, you received an Order, July 3[1], 2012, that
indicated there would be no videotaping at the
exchanges. Has videotaping continued?
A. It has, but they’re in their car videotaping. [The
order] says that there’s no videotaping … in the
police station[.] So, the way around it is to
videotape from the car. So they would videotape
– I could see the videotape camera in their car,
videotaping the exchanges. Through the window.
N.T., 3/25/13, at 251.
Moreover, Father continues to deny that he fraudulently procured the
adoption consent from Mother, and that he unilaterally limited Mother’s
contact with G.D. Even a review of Father’s brief to this Court demonstrates
the contention and hostility that exist, with Father arguing that Mother is the
one who is incapable of permitting frequent and continuing contact between
G.D. and him, and that he should be awarded primary physical custody,
although the record is devoid of any evidence favoring him in this regard.
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Father’s Brief at 54-56. Based on the foregoing, we hold the trial court’s
findings with respect to Section 5328(a)(1) are not supported by the
competent record evidence, and its conclusions are unreasonable.
With respect to Section 5328(a)(8), which looks at the attempts of a
parent to turn the child against the other parent, the trial court found “no
credible evidence that either parent has attempted to turn the child against
the other parent.” Order, 9/27/13, at 4. To the contrary, Mother argues the
following.
Father and [Wife] may not be engaged in overt,
active attempts to turn G.D. against Mother, but
they are engaged in a far more sinister and subtle
method of doing so; isolation. They are acting to
keep G.D. from Mother, so that she forgets Mother,
comes to view her as a stranger, and on her own
becomes less comfortable with Mother. But for the
court order in place to thwart them[,] it is certain
[Father and Wife] would be far more aggressive in
their efforts to keep Mother from G.D.
Mother’s Brief at 57.
On February 27, 2011, when Father first started to limit Mother’s
contact with G.D., G.D. was an infant of two months. Mother testified that,
after she filed the petition to revoke the adoption consent, but before the
hearing in that matter, the orphans’ court and counsel for the parties agreed
Mother should have visitation with G.D. N.T., 3/25/13, at 131. Mother
testified that Father would only agree to visits between Mother and G.D. if
he supervised them, and two such visits occurred in May of 2011. Id. at
131-132. During the second supervised visit, while Mother was holding G.D.
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on her lap, Mother testified that Father stated to her, “I would like to work
something out …. Let my wife adopt your baby.” Id. at 137. Mother
testified that when she refused, Father became angry, and tried to pry G.D.
from her arms. Id. at 138. She went on to testify that Father was holding
her down on the chair and that he was in her face yelling and threatening to
“blackmail” her about her past employment. Id. at 138. The altercation
became so heated that Wife came into the room and removed G.D. from the
middle of the situation. Id. at 139. Father then physically pushed Mother
out the door of the house while continuing to scream after her. Id.
As a result of this incident, Mother filed a Protection From Abuse (PFA)
petition on May 16, 2011, and the trial court issued a temporary PFA order
granting her full custody of G.D. Mother testified Father was never served
with that order, and, therefore, she did not obtain temporary custody of
G.D. Id. at 137-139. The PFA hearing occurred on May 26, 2011, and
Mother agreed to settle the PFA dispute with Father by accepting
unsupervised partial physical custody of G.D. on alternating weekends. Id.
at 157. Thus, the agreed upon May 27, 2011 temporary physical custody
order was issued under these circumstances.
As such, from the time G.D. was five months old through the custody
trial, at which time G.D. was two years old, G.D. has been in Mother’s
physical custody only on alternating weekends, while Father and Wife have
been her primary caretakers. Despite Mother’s requests for additional
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custody time on holidays and at other specific times, Father has never
agreed to any time beyond what was granted to Mother in the May 27, 2011
temporary order. N.T., 3/25/13, at 171-172, 176-178. We conclude that,
for the first two years of G.D.’s life, Father succeeded in deliberately
isolating G.D. from Mother. This inevitably caused any bond and
relationship, which this small child is entitled to have with her Mother, to
suffer. This naturally manifested in G.D. favoring Father as the more
familiar parent. Therefore, we are constrained to conclude that the
competent record evidence does not support the trial court’s finding under
Section 5328(a)(8) that neither parent has attempted to turn the child
against the other parent.
With respect to Section 5328(a)(11), the proximity of the residences
of the parties, there is no dispute that the parties live a driving distance of
approximately one and a half hours.6 The trial court acknowledged that the
parties do not live in close proximity to each other and that this may present
an obstacle, but concluded that this factor does not outweigh “the benefits of
the importance of a shared physical custody for the child’s best interests.”
Trial Court Opinion, 9/26/14, at 16. We hold the trial court’s conclusion
unreasonable because it requires G.D., then age two, to undergo a three-
hour roundtrip car ride each week between homes.
____________________________________________
6
Mother resides in Plymouth Meeting, in Montgomery County, and Father
resides in the State of Maryland.
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Based on the foregoing, we conclude the trial court abused its
discretion in failing to weigh Section 5328(a)(1), (8), and (11) in Mother’s
favor. Moreover, to the extent the trial court based its custody decision
upon the presumption that a shared physical custody arrangement is in
G.D.’s best interest, we conclude that it committed an error of law.
[C]ourts may no longer reason by presumption in
child custody cases. Not only has the tender years
presumption been explicitly repudiated, but so have
all other presumptions. In a custody dispute
between parents, no one has the burden of proof; no
presumption may be resorted to; instead, the court
must determine according to the evidence in the
particular case before it what will serve the children’s
best interests.
In re Custody of Temos, 450 A.2d 111, 121-122 (Pa. Super. 1982)
(citations omitted).
Upon thorough review, we conclude the competent evidence of record
does not support a shared physical custody award. Accordingly, we reverse
the order with regard to the award of shared physical custody, and direct
that Mother shall have primary physical custody of G.D. See M.A.T. v.
G.S.T., 989 A.2d 11, 21 (Pa. Super. 2010) (en banc) (stating that, where
the record is sufficiently developed, we may substitute our judgment for that
of the trial court and decide the case on the merits).
Based on the foregoing, we likewise conclude that the trial court
abused its discretion in granting the parties shared legal custody. The Act
defines “legal custody” as “[t]he right to make major decisions on behalf of
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J-A13029-14
the child, including, but not limited to, medical, religious and educational
decisions.” 23 Pa.C.S.A. § 5322. Section 5328(a)(13) addresses the level
of conflict between the parties and the willingness and ability of the parties
to cooperate with one another. In this case, the trial court found “there is a
level of conflict between the parties.” Trial Court Order, 9/27/13, at 6.
Specifically, the trial court stated as follows.
[The trial court] has concerns as to the level and
quality of communication between Mother and
Father, however, the [trial c]ourt does not find these
concerns significant enough to bar a shared custody
arrangement as both parties have demonstrated a
willingness and ability to communicate in promoting
the child’s best interests ….
Id. at 7.
Upon review, we conclude that the competent evidence of record does
not support the trial court’s finding that the legitimate concerns about the
level and quality of the parties’ communication are not significant enough to
bar a shared custody arrangement. In the trial court’s September 26, 2014
supplemental opinion, it reasoned, in part, “with the assistance of co-parent
counseling, both parents should be able to learn to communicate more
effectively for the best interests of the child.” Trial Court Opinion, 9/26/14,
at 18. We disagree based on the record evidence. Indeed, Mother testified
that she and Father “do not communicate at all.” N.T., 3/25/13, at 218.
Rather, Mother testified she believes it is Wife who corresponds with her in
e-mails regarding G.D. Id.
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J-A13029-14
We conclude it is in G.D.’s best interest to grant Mother sole legal
custody until such time that the situation between the parties were to
improve. Accordingly, we reverse the order with regard to the award of
shared legal custody, and direct that Mother shall have sole legal custody of
G.D. See M.A.T., supra.Mother also requests this Court to award her counsel fees and costs
associated with the instant appeal, such as this Court awarded her in
connection with Father’s appeal from the orphans’ court order. See
Adoption of G.D., supra. In support of her request, Mother sets forth the
following argument.
Father and [Wife] engaged in the same misconduct
here – indeed, they even continue to give the same
statements and testimony already adjudicated as
perjury in the Orphans’ Court case – as they did in
the prior proceeding. This Court has already
determined that Father’s prior misconduct warranted
an award of fees. His persistent engagement in that
same misconduct in this case warrants the same
result. They had 12 witnesses (Mother had 6) and
managed to drag out this custody case for over 14
days, as the record will reflect, as well as filed
numerous petitions.
Mother’s Brief at 60-61.
Pennsylvania Rule of Appellate Procedure 2744 provides as follows.
Rule 2744. Further Costs. Counsel Fees.
Damages for Delay
In addition to other costs allowable by general
rule or Act of Assembly, an appellate court may
award as further costs damages as may be just,
including
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J-A13029-14
(1) a reasonable counsel fee and
(2) damages for delay at the rate of 6% per
annum in addition to legal interest,
if it determines that an appeal is frivolous or taken
solely for delay or that the conduct of the participant
against whom costs are to be imposed is dilatory,
obdurate or vexatious. The appellate court may
remand the case to the trial court to determine the
amount of damages authorized by this rule.
…
Pa.R.A.P. 2744.
Further, this Court has explained our standard of review.
In determining the propriety of such an award, we
are ever guided by the principle that an appeal is not
frivolous simply because it lacks merit. Rather, it
must be found that the appeal has no basis in law or
fact. This high standard is imposed in order to avoid
discouraging litigants from bringing appeals for fear
of being wrongfully sanctioned.
Griffith v. Kirsch, 886 A.2d 249, 255-256 (Pa. Super. 2005), quoting
Menna v. St. Agnes Med. Ctr., 690 A.2d 299, 304 (Pa. Super. 1997)
(citations omitted).
In this appeal, we discern no basis to award Mother reasonable
attorney fees and costs where Mother filed an appeal from the custody
order, and Father filed a cross-appeal. Father’s cross-appeal is not frivolous
or taken solely for delay. Although a panel of this Court deemed Father’s
conduct in the orphans’ court litigation to be “dilatory, obdurate, or
vexatious,” we are not persuaded Father’s conduct rises to the same level
- 25 -
J-A13029-14
here where both he and Mother are dissatisfied with the custody order and
filed appeals. Therefore, we deny Mother’s request for reasonable attorney
fees and costs.
With respect to Father’s cross-appeal, we observe that the trial court
thoroughly analyzed his issues in its November 27, 2013 Rule 1925(a)
opinion. In his first issue, Father argues the trial court abused its discretion
in failing to weigh the foregoing statutory factors in his favor. Specifically,
Father alleges that Mother has failed to communicate with him regarding
G.D., that she has made the custody exchanges chaotic, and that she has
filed false abuse charges against him. Father alleges that G.D. has returned
from Mother’s custodial weekends with injuries, including “excessive
bruising, a bump on her head[,] and a black eye. Something happened
almost every weekend Mother had [G.D.].” Father’s Brief at 56. In addition,
Father alleges that Mother failed to provide the necessary care for G.D. while
in her custody, and that G.D. “would return from Mother’s weekends with
behavior issues.” Id. at 57.
The trial court concluded that all of Father’s allegations were misplaced
and/or not credible and not supported by the evidence. We conclude the
record evidence overwhelmingly supports the trial court’s analysis of
Father’s first issue on appeal. Thus, we discern no abuse of discretion. As
such, we adopt the trial court’s November 27, 2013 Rule 1925(a) opinion as
- 26 -
J-A13029-14
dispositive of Father’s first issue. See Trial Court Opinion, 11/27/13, at 25-
36.
In his second issue, Father argues the trial court committed an error of
law by precluding testimony regarding Mother’s care of J.G., her then seven-
year-old son from a prior relationship, who is G.D.’s half-brother. Father
argues this testimony was relevant to the trial court’s consideration of
Section 5328(a)(3), (4), (9), (10), and (12).
When faced with a question of the admissibility of evidence, our
standard of review is very narrow. Because this decision is committed to the
discretion of the trial court, we may reverse only upon a showing of an
abuse of discretion or error of law. Freed v. Geisinger Med. Ctr., 910
A.2d 68, 72 (Pa. Super. 2006). “[T]o constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful or prejudicial
to the complaining party.” Id.In its November 27, 2013 Rule 1925(a) opinion, the trial court stated
that Mother “testified as to G.D.’s sibling relationship with J.G., the childcare
arrangements she has made for her son, his schooling, his relationship with
her family, and his lack of contact with the biological [f]ather.” Trial Court
Opinion, 11/27/13, at 24. Otherwise, the trial court stated “there was no
proffer of any relevant information as to J.G. which the court should have
considered with regard to the best interest of G.D.” Id. at 24-25. We
discern no abuse of the trial court in this regard. Further, Father does not
- 27 -
J-A13029-14
state on appeal what additional information regarding J.G., if any, was
relevant to this custody matter. It follows that Father does not assert how
he was prejudiced by the trial court’s preclusion of additional testimonial
evidence regarding J.G. As such, we discern no abuse of discretion or error
of law by the trial court.
In his third issue, Father argues the trial court erred in failing to enjoin
Mother from disclosing the details of the orphans’ court litigation and the
custody matter on the Internet, to the media, or to any other third party.
Father argues it is in the best interest of G.D. to maintain privacy in these
matters, and that G.D.’s privacy trumps Mother’s guarantee of freedom of
speech under the Pennsylvania and United States Constitution.
The trial court set forth the following background with respect to this
issue, which is supported by the testimonial evidence
There was testimony presented at trial that [ ]
Mother published the details of her custody dispute
with [ ] Father on a website, and, a video presented
that she gave interviews to news organizations as
well …. [ ] Mother testified that[,] “I wanted the
story out there so [G.D.] would know her mother
fought for her …[.] I also thought this would help
my case.”
Trial Court Opinion, 11/27/13, at 32-33 (citation to record omitted).
Significantly, the trial court noted that, “[t]here was also evidence presented
at trial that [ ] Father’s sister … started a website and also posted
information about the adoption and custody cases, including negative
statements made about [ ] Mother.” Id. at 38. Moreover, Father admitted
- 28 -
J-A13029-14
on direct examination that he provided his sister with information posted on
the website. See N.T., 6/5/13, at 194-195. In any event, Mother testified
she does not plan to initiate any additional media coverage. See N.T.,
6/3/13, at 290-291.
Father cites In the Interest of M.B. and J.B., 819 A.2d 59 (Pa.
Super. 2003), in support of his argument that “the privacy rights of the child
are more important than the right of free speech, when failure to protect the
child’s rights would result in harm to the child.” Father’s Brief at 67. In that
case, the Pittsburgh Post-Gazette newspaper appealed from the trial court’s
order denying its motion to open juvenile dependency proceedings. We held
as follows.
[W]hile there is a rebuttable constitutional
presumption that juvenile dependency proceedings
are open to the public, our courts possess an
inherent power to control access to their proceedings
and may deny access when appropriate. Once an
interested party seeks access, however, the party
seeking to keep the proceedings closed may rebut
the presumption of openness by demonstrating that:
(1) closure serves a compelling governmental
interest, and (2) no less restrictive means to serve
that interest exists.
In the Interest of M.B. and J.B., supra at 60. We found that “the parties
seeking closure have demonstrated a compelling interest in protecting the
privacy of the minor children and that no less restrictive means than total
closure exists.” Id. As such, we affirmed the order.
- 29 -
J-A13029-14
Father’s reliance on In the Interest of M.B. and J.B., is misplaced in
this case which did not involve the press seeking access to the custody
proceedings. Herein, the trial court specifically found that “based on …
Mother’s testimony that no movie deal or further media coverage was
forthcoming, and no evidence to the contrary being submitted by … Father,
the [trial] court did not abuse its discretion in not ‘enjoining’ … Mother from
pursuing what amounts to speculative endeavors.” Trial Court Opinion,
11/27/13, at 38. Therefore, for all the foregoing reasons, Father’s issues
on appeal fail.
Accordingly, we reverse the custody order with regard to the shared
legal and physical custody award. We remand this matter to the trial court
to fashion a new custody order granting Mother sole legal and primary
physical custody, and setting forth a partial physical custody schedule for
Father that is in G.D.’s best interest.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2014
- 30 -
- - - --- -- - ~ -- - - - -
Cfrcutat~cf'121{o1261it a4~&'~ 8 ~
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
K. G. SUPERIOR COURT DOCKET NO.
2982 EDA 2013
3128 EDA 2013
V.
LOWER COURT DOCKET NO.
2011-05320
E. D.
OPINION
COO NAHAN, J. November 27, 2013
[Jlaintiff, K~, \T. { (hereinafter "rlaintiff fvlother") and Defendant,
E. D. I (hereinafter "Defendant Father") al-e the parents of G.D.
(hereinafter "the child"), who was born December 28, 2010. On March 2, 2011,
Defendant Father filed a Petition for Adoption in the Orphan's Court Division of the
Court of Common Pleas of Montgomery County, Orphan's Court docket 2011-
A0058. On March 7, 2011, Plaintiff Mother filed an Emergency Complaint for
Custody in the Family Division of the Court of COl11m()n Pleas of Montgomery
County requesting, inter alia, full custody of the child. On March 22, 2011,
Defendant Father filed a Motion to Stay Plaintiff Mother's Emergency Complaint for
Custody due to the pending adoption proceedings in Orphan's Court. On March 25,
2011, after conference with the Honorable Stanley R. Ott, Administrative Judge of
the Orphan's Court Division of the Court of Common Pleas, Montgomery County,
this court granted Defendant Father's March 22, 2011 petition and the custody
proceedings were stayed pending resolution of the Orphan's Court proceedings.
On May 16, 2011, Plaintiff Mother filed a petition for protection from abuse
on behalf of herself and the child against Defendant Father. On May 16, 2011, a
IiiI
2011-05320-0105
~nl~I/~~'~t~ Filingffi:
IU27!2013 1:35:57 PlVI
~I
9538966
Opinion
ReceiRt iiZl982235 Fee SO.OO
Mark Levy - MontCo Prothonotary
temporary protection from abuse. order was granted which, inter alia, ordered no
contact between Defendant Father and the child, and awarded temporary full
custody of the child to Plaintiff Mother pending the outcome of a final hearing on
the protection from abuse petition. On May 18, 2011, after conference with Judge
Stanley R. Ott, the court issued an order reconsidering Plaintiff Mother's March 7,
2011 Emergency Complaint for Custody and lifted the March 25, 2011 Stay of
Proceedings.
On May 26, 2011, at a Protection from Abuse proceeding before the
Honorable Kelly C. Wall, Plaintiff Mother and Defendant Father entered into a
temporary custody agreement which gave Plaintiff Mother partial physical custody
of the child every other Friday at 7:00 p.m. until Sunday at 7:00 p.m. Custody
transfer of the child on Friday was to take place at the Whitemarsh Police Station in
Montgomery County, Pennsylvania, and custody transfer of the child on Sunday was
to take place at the Odessa Police Station in Odessa, Delaware. Communication was
restricted to occur between Plaintiff Mother and Defendant Father's wife, M. D.
Plaintiff Mother and Mr. D. were to communicate by email for the
purpose of communication concerning the custody transfers, and, in the event of an
emergency, they were to communicate by cell phone. The May 26, 2011
agreement was made an order of the Court on May 27,2011. On May 27,2011, the
temporary protection from abuse order was stricken by the court.
After hearing, on October 12,2011, Judge Ott ordered under the Orphan's
Court docket number 011-A0058 that the consent for adoption executed by Plaintiff
Mother on or about January 27, 2011 was procured by "fraud and duress practiced
by birth father E. D. and said consent is hereby revoked." The October
2
12, 2011 order stated that Defendant Father's petition to confirm consent was
denied and dismissed with prejudice, and that Defendant Father's outstanding
petition for adoption was dismissed with prejudice. On October 12, 2011, Judge Ott
issued a separate order stating that the Orphan's Court matter was resolved by the
above order, and the May 27, 2011 temporary custody agreement pursuant to the
Protection from Abuse docket number 2011-13342 was to remain in full force and
effect pending further order of the Family Court Judge.
On November 14, 2011, Defendant Father filed an appeal of the Orphan's
Court decision to the Superior Court of Pennsylvania. On December 14, 2011, this
court issued an order stating that the custody proceedings were stayed due to the
pending appeal in the Orphan's Court Division of the Court of Common Pleas.
On April 25, 2012, Plaintiff Mother filed an Emergency Petition to Correct
and/or Clarify Order of Court and for Appointment of Guardian Ad Litem. On May
18, 2012, the Superior Court of Pennsylvania affirmed Judge Ott's October 12, 2011
order. On June 12, 2012, Plaintiff Mother filed a Petition to Lift Stay and for
Immediate Hearing. On June 18, 2012, Defendant Father filed a Petition for
Allowance of Appeal to the Pennsylvania Supreme Court. This petition was denied
on July 17, 2012.
On July 30, 2012, after consideration of Plaintiff Mother's April 25, 2012
petition, this court issued an order which, inter alia, granted the parties shared
legal custody of the child, and ordered that effective August 3, 2012, neither
Mother, Father, not Father's wife M.. D. were to participate in the exchange
of the custody of the child. Third party designees were to exchange the child inside
the police stations in Whitemarsh Township, and Odessa, Delaware.
3
On August 2, 2012, upon consideration of the June 12, 2012 Petition to Lift
Stay and for Immediate Hearing, and after conference with the parties, this court
issued an order directing the Montgomery County Court Administrator's Office, who
handled this court's scheduling, to list the custody proceeding for a protracted
hearing.
On March 25, 2013, this court began a protracted hearing on custody.l
Plaintiff Mother was represented by Cheryl Sattin, Esquire, and Defendant Father
was represented by Deidre Agnew, Esquire. Plaintiff Mother testified that she has
two children, G.D. and an older son, J.G. who was seven years old at the time of
the hearing. Plaintiff Mother testified that she has had several jobs over the years,
including bartending, retail management, accounting management, and for a period
of approximately six months in 2009, she worked at a "massage parlor~' where she
would occasionally perform sexual acts for some of the customers.2 N .T. March 26,
2013 at 25-26.
Mother testified that she met Defendant Father on the dating website,
Match.com in September, 2009. Plaintiff Mother presented evidence that at the
time they met, Defendant Father's profile page on Match.com listed his marital
status as "divorced". N.T. March 26, 2013 at 32-33. Plaintiff Mother also testified
that Defendant Father told her he was "fully divorced" when they met. March 25,
2013 N.T. at 35; Plaintiff testified that in March, 2011 she first learned that
I The custody hearing in this matter occurred over fifteen days from March, 2013 until August, 2013.
There are over 4,000 pages of testimony from eighteen witnesses which have been transcribed. Due
to the volume of the hearing record, the court shall only summarize the testimony of the parties as it
relates to the history between them which led up to the filing of Plaintiff Mother's March 7, 2011
Complaint for Custody. Any other testimony cited in the opinion shall be done as the court's addresses
the parties' purported errors as stated in their respective 1925(b) statements.
2 Mother testified that prior to 2009, she worked at the same "massage parlor" "for a brief period of
time" but quit. N.T. March 25, 2013 at 24.
4
Defendant Father was in fact married. Plaintiff Mother testified that when she met
Defendant Father, he told her his first name was "Ed", and he would sign his emails
to her "Ed" or "Edward", and he told her that his last name was DuPont. N.T. March
25, 2013 at 36-37.
Plaintiff Mother testified that she and Defendant Father began dating and in
April, 2010, Plaintiff Mother became pregnant. Plaintiff Mother testified that at first,
Defendant Father was "angry" about the pregnancy, and he encouraged Plaintiff
Mother to have an abortion. N.T. March 25, 2013 at 50. Plaintiff Mother eventually
made an appointment to get information about an abortion, however, Defendant
Father then changed his mind, telling Plaintiff Mother "he would agree that I could
have the baby ... only if I would allow him to make the rulings for [G.D.] ... he would
basically be the primary custodian ... but I would still be her Mother." N.T. March 25,
2013 at 52. Plaintiff mother testified that termination of her parental rights was
never discussed.
Plaintiff Mother testified that she and Defendant Father continued to date
during the pregnancy, and that she believed that they would live tog~ther after the
baby was born. Plaintiff Mother testified that Defendant Father did not attend any
doctor's appointments with her during the pregnancy. He did attend a baby shower
given for Plaintiff Mother by her family and friends. Plaintiff Mother testified that
the parties also communicated about the pregnancy "all the time" by telephone, in
person, and in text messages. N.T. March 25, 2013 at 56.
On December 28, 2010, Plaintiff Mother gave birth to the child. Defendant
Father was not present for the birth, but he came to the hospital the following day.
N.T. March 25, 2013 at 72. Plaintiff Mother testified that when she filled in the
5
birth certificate, she wrote Defendant Father's name down, however his social
security number was required, and he would not give her the number. "[S]o he was
never on the first birth certificate." March 25, 2013 at 74.
Plaintiff Mother testified that she and Defendant Father discussed marriage
after the child's birth. N.T. March 25, 2013 at 80. Plaintiff testified that in January
and February, 2011 Defendant Father would visit her and the child "at least two to
three times a week" and would stay "a couple of hours, at least, every time." N .T.
March 25, 2013 at 84. At the end of January, 2011, Plaintiff mother testified that
Defendant Father gave her a document that he said his lawyer had prepared "so he
could claim his rights as the Father of [the child]".3 N.T. March 25, 2013 at 85.
Plaintiff Mother stated she saw the word "adoptee" on the document and asked
Defendant Father about this. Plaintiff Mother testified that Defendant Father told
her it was to add his name to the birth certificate, and so that he could add the
child to his health insurance, but that "I would always be her mother." N.T. March
25, 2013 at 86. Plaintiff Mother testified that she did not understand the document,
but they "went over it very briefly, he told me what it was and I believed him." N .T.
March 25,2013 at 86-87. A few days later, Plaintiff Mother signed the document
and returned it to Defendant Father. She stated that she continued to date
Defendant Father after she signed the document. Plaintiff Mother stated that she
and Defendant Father decided that after she returned to work at the end of her
maternity leave, he would take the child during the work week to his house in
Delaware where he would have a nanny take care of her while he worked from
home. Plaintiff Mother would then have the child on the weekends and could come
3 ThiS' document was a Consent of Birth Parent Form, marked as trial exhibit M-7.
6
down and see the child "whenever I wanted, until we moved in together." N.T.
March 25, 2013 at 82.
Plaintiff Mother testified that a week or two before the end of her maternity
leave, on February 27,2011, Defendant Father asked to take the child for the night
for a "trial run" and to have the child get used to the nanny. N.T. March 25, 2013
at 93. Plaintiff Mother stated she initially was hesitant because "I was taking care
of her, I was breast feeding her." N.T. March 25, 2013 at 93. She testified that
"he wanted to make sure it would work out what we had planned. So I said, 'That's
fine, you can take her for a tria!.' He promised he would bring her back Tuesday."
N.T. March 25, 2013 at 93.
Plaintiff Mother testified that when the following Tuesday came, Defendant
Father did not return the child to her in Pennsylvania. On Wednesday she stated
she told Defendant Father "You are going to let me see my daughter ... this is too
long, I can't be without her for this amount of time." N.T. March 25, 2013 at 93-
94. Plaintiff Mother testified that on Thursday she went to Defendant Father's
house in Delaware. She testified that she told Defendant Father she wanted to
bring the child home with her, and that he said no. She stated that he told her he
would bring the. child up to Pennsylvania on Friday, and Plaintiff Mother agreed
. "because he wasn't allowing me to take [the child] with me." N.T. March 25,2013
at 99.
Plaintiff Mother testified that on Friday, Defendant Father did not return the
child to Pennsylvania, and that she called him "numerous" times that day but he
was "making excuses". N.T. March 25, 2013 at 101. On Saturday Plaintiff Mother
testified that "eventually he stopped answering me. I kept calling him, texting him,
7
he just disappeared. I got really upset and scared, because I didn't know what was
going on." N.T. March 25, 2013 at 102. Plaintiff Mother testified that she and her
friend, E. D. , began "looking things up ... on computer searches" and
they found "numerous connections between Defendant Father and a woman named
Me D, . N.T. March 25, 2013 at 103. Plaintiff Mother testified that
eventually she was able to reach Defendant Father and they arranged to meet the
following day in Maryland.
The parties met the following day, Sunday, at a restaurant in Maryland and
Plaintiff Mother stated that Defendant Father told her he was married, but he and
his wife had an "open relationship" and they could do whatever they wanted. N.T.
March 25, 2013 at 107. Plaintiff Mother testified when she asked Defendant
Father what was going on, "he said 'Oh the paperwork you actually signed, was
actually so M. D. could adopt G. D. .' And I said are you kidding me ... that's not
what you told me .. .! would never agree to that...you know I would never give her to
your wife." N.T. March 25, 2013 at 108. Plaintiff testified that Defendant Father
told her it was "too late now. Everything is finalized. You had thirty days and
that's up, so baSically you have no rights." N.T. March 25, 2013 at 108. Plaintiff
Mother left Maryland without the child, and after consulting with an attorney, she
filed the revocation of the adoption paperwork and the emergency custody petition
on Marc h 7, 20 11. 4
Defendant Father testified that when he joined Match.com in 2004, he listed
his status as "divorced" because he was divorced from his first wife, not because he
4 As previously stated in this opinion, on October 12, 2011, Judge Ott issued an order for the Orphan's
Court proceeding under docket 2011-A0058 which revoked the consent to adopt, denied Defendant
Father's petition to confirm consent, and dismissed with prejudice Defendant Father's petition for
adoption.
8
was divorced from M, IJ, : his second wife. N.T. June 5, 2013 at 74.
Defendant Father testified that although he was separated from his wife, M, b. ,he
had a business relationship with her, and "we had a personal relationship, we were
talking, we were amicable. II N.T. June 5, 2013 at 77. When asked by Ms. Sattin if
he agreed with his testimony from the Orphan's Court proceeding on September
21, 2011 where he stated that in 2008 "I was going just to date other people, and
she was open to date other people if she wanted to, and that's the arrangement we
came up with 11, Defendant Father replied: "Yes."
Defendant Father testified he identified himself on Match.com as E.D.,
meaning E. D, , and that he did not give people he met online his real
name at first because "I do a lot of business from New York to Virginia, and I just
didn't feel comfortable giving my name, I really didn't." N.T. June 5, 2013 at 87.
Defendant Father testified that when he first met Plaintiff Mother he did not know
that she was working at the "massage parlor" and he only learned of it "six or
seven months later". N.T. June 5, 2013 at 93.
Defendant Father testified that he began dating Plaintiff Mother in September
of 2009. He stated that the child was conceived in March of 2010. Prior to Plaintiff
Mother becoming pregnant, Defendant Father stated that he "tried to stop seeing
her .. .! tried to pull away from the relationship ... 11 N.T. June 10, 2013 at 35.
Defendant Father testified that in April or May, 2010 when he was reconciling with
his wife, M.D, ,he told M. D. about Plaintiff Mother, but that he did not tell her
that Plaintiff Mother was pregnant. N.T. June 5, 2013 at 143.
Defendant Father testified that after he and Plaintiff Mother found out that
she was pregnant, "we came to the agreement that we had about [the child]. She
9
wanted to get an abortion, and I didn't want to do that.. .. I made her a proposal,
why don't you let me raise the child by myself instead of aborting it." N.T. June 10,
2013 at 36. Defendant Father testified that his wife, M .1}, participated in the
adoption later because Plaintiff Mother found out " ... that if someone is terminating
someone's parental rights, that person that's giving up that parental right, someone
else has to fill that person's shoes in order to do that." N.T. June 10, 2013 at 73.
Defendant Father testified that Plaintiff Mother eventually agreed with his
suggestion to allow M, 1>. to take her place as the child's Mother. N.T. June 10,
2013 at 74.
Defendant Father testified that due to the agreement he had with Plaintiff
Mother concerning the adoption of the child by Defendant Father and his wife, his
attendance at the baby shower and his participation in the selection of the child's
name was a "charade" that he had to go through. Defendant Father testified that
Plaintiff Mother was misleading herfamily as to the true nature of the parties'
relationship and the pregnancy. N.T. June 5, 2013 at 151.
Defendant Father denied that Plaintiff Mother signed the adoption consent
paperwork due to any fraudulent behavior on his part, and that she did so willingly
and by agreement. Defendant Father testified that he told his wife M.D, about
Plaintiff mother's pregnancy in September of 2010, and the she was "very upset."
N.T. June 5, 2013 at 158. Defendant Father testified that by November, 2010,
after starting the reconciliation process with M,D.. ,they discussed adopting the
child from Plaintiff Mother. Defendant Father stated that at the time, he and M ,f).
believed that she could not have any children biologically. N.T. June 5, 2013 at
160.
10
Defendant Father testified that after the child was born, he filed the consent
to adopt paperwork after Plaintiff Mother signed it, and then he took custody of the
child on February 27,2011 pursuant to the agreement he had with Plaintiff Mother.
Defendant Father testified that-he does not agree with Judge Ott's finding that the
adoption consent was obtained by fraud. Defendant Father stated: " .. J don't agree
with it, but I am abiding by it. I respect what he did." N.T. June 5,2013 at 176.
After fifteen days of hearings, on September 27,2013, the court entered a
final custody order in this matter which, inter alia, gave the parties shared legal
custody of the child and gave the parties shared 50/50 physical custody of the
child. The September 27,2013 Order also stated, inter alia, that the parties are to
attend co-parenting counseling "forthwith", and are to continue with co-parenting
counseling "until such time as the counselor deems it no longer necessary, or, until
further order of the Court." September 27,2013 Order at 10.
On October 24, 2013, Plaintiff Mother filed a Notice of Appeal to the Superior
Court of Pennsylvania of the September 27, 2013 Order. On October 25, 2013,
Plaintiff Mother filed an Amended Notice of Appeal to the Superior Court of
Pennsylvania wherein Plaintiff Mother states that this matter is a children's fast
track appeal. On October 28,2013, the court issued an Order directing Plaintiff
Mother to file a Concise Statement of Errors Complained of on Appeal pursuant to
Pa. R.A.P. 1925 (b) within twenty one (21) days of the date of the Order. On
October 28, 2013, Plaintiff Mother filed an Amended Notice of Appeal to the
Superior Court of Pennsylvania. The October 28, 2013 Amended Notice of Appeal
incudes a Request for Transcript. On October 28, 2013, Plaintiff Mother filed a
Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.
11
1925(b). The court notes that ten (10) of the fifteen (15) days of trial Notes of
Testimony had been transcribed and filed with the Montgomery County
Prothonotary's Office prior to both parties filing their respective Notices of Appeal to
the Superior Court of Pennsylvania. One additional day of Notes of Testimony for
the August 9, 2013 hearing was transcribed and filed with the Montgomery County
Prothonotary's Office after Plaintiff Mother filed her Notice of Appeal, but prior to
Defendant Father filing his Notice of Appeal. Plaintiff Mother's Concise Statement of
Matters Complained of on Appeal states as follows:
"1. The Trial Court abused its discretion in finding that
Father has demonstrated that he is able to permit and
encourage frequent and continuing contact between the
child and the other party particularly in light of the
overwhelming evidence to the contrary, including but not
limited to, a) the findings of the Orphan's Court and of the
Superior Court in the matter regarding Father's
procu rement of a fraudulent consent to adopt, and b)
Father's (and his family's) course of conduct designed to
minimize Mother's involvement with the child both in the
form of physical custody and relating to her ability to
share in decision making relating to the child."
"2. The Trial Court abused its discretion in finding that
there was "no credible eVidence that either parent has
attempted to turn the child against the other parent"
given the overwhelming evidence to the contrary including
but not limited to, a) the findings of the Orphan's Court
and of the Superior Court in the matter regarding Father's
procurement of a fraudulent consent to adopt, and b)
Father's (and his family's) course of conduct designed to
minimize Mother's involvement with the child both in the
form of physical custody and relating to her ability to
share in decision making relating to the child and to
alienate Mother from the child."
"3. The Trial Court abused its discretion in failing to award
to Mother primary physical custody in light of the improper
conclusions drawn as to Custody Factors 1, 8, and in
failing to properly weigh and consider factors 2,11 and 13
of 23 Pa.C.S.A. §5328(a)."
12
On November 6, 2013, the Superior Court of Pennsylvania designated this
matter as a "Children's Fast Track" appeal. On November 7, 2013, Defendant
Father filed a Notice of Cross-Appeal to the Superior Court of Pennsylvania from the
custody order entered September 27, 2013, and a Statement of Matters
Complained of on Cross-Appeal pursuant to Pa.R.A.P. 1925(b). Defendant Father's
Statement of Matters Complained of on Cross-Appeal pursuant to Pa.R.A. P. 1925(b)
states as follows:
"1. The Trial Court committed prejudicial
error in excluding evidence offered by Cross-
Appellant, including but not limited to evidence
concerning how Mother raised and cared for her son
(not the child at issue in this case), the medical care
(or lack thereof) provided to her son, child care
decisions for her son, and all other evidence
concerning Mother's son."
"2. The Trial Court abused its discretion in
finding that Mother demonstrated that she is able to
permit and encourage frequent and continuing
contact between the child and Father particularly in
light of the overwhelming evidence to the contrary,
including but not limited to, a) Mother's failure to
properly communicate with Father about issues
concerning the child and other issues, b) Mother's
(and her family's and friend's) consistent course of
conduct to turn exchanges and other contact into
chaotic events in front of the child, and c) Mother's
attempts to bring false abuse charges against Father
on three occasions, in Pennsylvania, Maryland, and
Delaware and the lying about it repeatedly under
oath and otherwise to try to use it to her advantage
before the Trial Court."
"3. The Trial Court abused its discretion in
finding that there is no continued risk of harm to the
child by Mother or by any member of Mother's
household, given the overwhelming evidence to the
contrary, including but not limited to, a) the
repeated and excessive bruising and other injuries
(i.e., burned lips, black eye) suffered by the child
while in Mother's care, b) the numerous rashes and
13
illnesses suffered by the child as a result of being in
the care of Mother, c) the behavior of the child after
returning from Mother's care such as hitting, head
butting, cursing, and problems with sleep, and d)
the evidence that Mother was oblivious about the
child's fevers, bruising, injuries, and illnesses."
"4. The Trial Court abused its discretion in
finding that Mother has provided the necessary care
of the child while in Mother's custody, in light of the
overwhelming evidence to the contrary, including
but not limited to, a) Mother's failure to provide
proper medical care for the child during the first two
months of her life and at other times, and b)
Mother's failure to properly care for or supervise
child resulting in excessive bruising and other
injuries to the child and illnesses suffered by the
child."
"5. The Trial Court abused its discretion in
finding no credible evidence that Mother has
attempted to turn the child against Father, given
the overwhelming evidence to the contrary,
including but not limited to, a) Mother's website,
Facebook pages, and other online presences, and b)
Mother's media coverage both online and on
television, that all set forth false and untrue
statements about Father, and disclosed confidential
Orphan's Court matters, which portray Father in an
extremely negative light and which child will be able
to see as she gets older and is able to read and get
online."
"6. The Trial Court abused its discretion in
finding that the child is doing well physically and
emotionally while under the care of Mother and in
finding that Mother is able to attend to the daily
physical, emotional, developmental, educational and
special needs of the child in light of the
overwhelming evidence to the contrary, including but
not limited to, a) the repeated and excessive
bruising and other injuries (i.e. burned lips, black
eye) suffered by the child while in Mother's care, b)
the numerous rashes and illnesses suffered by the
child as a result of being in the care of Mother, c) the
behavior of the child after returning from Mother's
care such as hitting, head butting, cursing, and
problems with sleep, , d) the evidence that Mother
14
was oblivious about the child's fevers, bruising,
injuries and illnesses, e) Mother's failure to provide
proper medical care for the child during the first two
months of her life and at other times, f) Mother's
failure to properly care for or supervise child
resulting in excessive bruising and other injuries to
the child and illnesses suffered by the child, and g)
Mother's instability in where she lives, insufficient
sleeping arrangements for the child at Maternal
Grandmother's home, her many boyfriends, her job
history, problems with her brother (and his criminal,
violent and drug history) and problems with Mother's
son's Father (and his criminal and violent history)."
"7. The Trial Court abused its discretion in
failing to award Father primary physical custody of
the child for the aforementioned reasons and the
improper conclusions drawn as to the custody factors
1,2,3,4,8,10 under 23 Pa.C.S.A. § 5328 (a)."
"8. The Trial Court abused its discretion
in failing to properly weigh and consider custody
factors 11 and 13 under 23 Pa.C.S.A. § 5328(a)
when entering its Order, given that the parties live
at least 1 and 112 hours apart and that this has been
such an extremely high-conflict case."
"9. The Trial Court abused its discretion
in failing to enjoin Mother from disclosing the
details of the Adoption and Custody matters on the
internet, to the media or to any person or entity
not associated with the Custody or Adoption
matters, in light of the overwhelming evidence that
it would not be in the child's best interest, as much
of what Mother disclosed or published were false
and untrue statements about Father, and disclosed
confidential Orphan's Court matters, which
portrayed Father in an extremely negative light.
Mother also had future plans for more media and a
movie deal, in which child's life would be exposed
for all to witness."
This opinion is filed pursuant to and is in compliance with Pa. R.A.P. 1925 (a) and
addresses both Plaintiff Mother's and Defendant Father's issues on appeal.
15
The standard of review of a custody order is very narrow; the appellate court
is limited to determining whether the trial court committed a gross abuse of
discretion. See Yates v. Yates, 963 A.2d 535 (Pa. Super. 2008). When reviewing
an appeal from a custody order, the appellate court should not substitute its
judgment for that of the trial court; the appellate court merely decides if the
conclusions of the trial court involve an error of law or are unreasonable in light of
its factual findings. Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005).
Although there is no presumption favoring shared custody, the courts possess the
authority to award shared custody. Smith v. Smith, 307 Pa.Super. 544, 453 A.2d
1020 (1982). Shared custody may be awarded when both parents are fit, both
parents are seen by the child as sources of security and love, and both parents are
able to communicate and cooperate in promoting the child's best interests.
Wiseman v. Wall, 718 A.2d 844 (1998); In re Wesley J.K., 299 Pa.Super. 504,445
A.2d 1243 (1982).
First, the court addresses Plaintiff Mother's claims as follows:
"1. The Trial Court abused its discretion in finding that
Father has demonstrated that he is able to permit and
encourage frequent and continuing contact between the
child and the other party particularly in light of the
overwhelming evidence to the contrary, including but not
limited to, a) the findings of the Orphan's Court and of the
Superior Court in the matter regarding Father's
procurement of a fraudulent consent to adopt, and b)
Father's (and his family's) course of conduct designed to
minimize Mother's involvement with the child both in the
form of physical custody and relating to her ability to
share in decision making relating to the child."
At the beginning of trial in the custody matter, counsel for both parties
addressed the issue of transcripts, orders and findings from the 2011 Orphan's
16
Court trial before Judge Ott, and the orders and findings issued from the Superior
Court of Pennsylvania and the Supreme Court of Pennsylvania as related to
Defendant Father's appeal of the Orphan's Court decision. The following
parameters discussed by counsel for both parties and the court in a pretrial
conference regarding the Orphan's Court proceedings and the appeals therefrom
were memorialized as follows on the first day of the custody record:
Ms. Sattin: "Orders, findings, and opinions of Judge
Ott, arising out of the 2011 hearing relating to
Mother's petition to revoke adoption consent are
admissible in this proceeding, subject to any relevant
objection ... and that this would also be the case for
the Superior Court and Supreme Court orders,
findings, and opinions, which relate to Father's
appeal of Judge Ott's order.... the transcripts of
testimony of the witnesses from the 2011 [adoption
revocation] hearing ... will not be accepted into
evidence in total, but can be used for cross
examination and impeachment purposes ... and the
court shall have the discretion to weigh this evidence
as Your Honor deems appropriate"
Ms Agnew: " .. .I just want to make it for the record,
that you are not bound by the credibility
determination of these prior findings." N.T. March
25, 2013 at 8-9.
Plaintiff Mother's claim that the findings of the Orphan's Court and of the
Superior Court of Pennsylvania in the adoption matter were part of the
"overwhelming evidence" presented at the custody trial, and that these findings, as
well as the outcome of the adoption matter should have played a significant part in
the court's determination as to custody is incorrect.
In reaching a decision in this custody matter, the court took into
consideration the ruling of Judge Ott in the adoption matter, the decision of the
Superior Court of Pennsylvania denying Defendant Father's appeal of the adoption
17
ru ling, and the denial by the Supreme Court of Pennsylvania of Defendant Father's
Petition for Allowance of Appeal. However, the court was not bound by the specific
. findings of Judge Ott in terms of credibility of the parties, witnesses, or a
redetermination of facts as the case was presented in Orphan's Court. The
Orphan's Court proceeding addressed the issue of Plaintiff Mother's consent or lack
of consent to adopt G.D. by E.D. The custody matter before this court addressed
the best interests of the child, G.D. As stated by this court on the first day of trial:
The Court: "It was a different inquiry in front of
Judge Ott ... it's not the same for me. My inquiry is
the best interest of the child ... so he had a different
job to do, a different focus, a different responsibility
really than I have ... [the orders and findings] they do
exist, they can come in ... the relevancy, the
weight. .. is what I put on to it. Certainly not in regard
to credibility, I make my own credibility findings."
N.T. March 25, 2013 at 124, 126.
It appears that in part of Plaintiff Mother's Pa R.A.P 1925 (b) statement of
errors 1 and 2, Plaintiff Mother believes that because of the results of Judge Ott's
Orphan's Court order, this court was to focus only on those proceedings and rule
against Defendant Father for that reason. This court is not in a position to
"redress" any purported wrongs which Judge Ott found had occurred in the
procurement of the adoption consent. This court's determination was strictly
limited to a custodia I arrangement which would be in the best interest of the child
and did so by assessing the factors enumerated in 23 Pa.C.S.A. § 5328(a)(1)
through (a)(16) which states as follows:
(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:
18
(l)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.
(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.
19
(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.
Plaintiff Mother's statement that the findings and ruling of the Orphan's Court an<:J
decision of the Superior Court of Pennsylvania regarding Father's procurement of a
fraudulent consent to adopt constitute part of the "overwhelming" evidence which
should determine the best interests of the child is misplaced and erroneous.
Plaintiff Mother states that Defendant Father's (and his family's) course
of conduct was "designed to minimize Mother's involvement with the child both
in the form of physical custody and relating to her ability to share in decision
making relating to the child" and, therefore, the court abused its discretion in
finding that Defendant Father has demonstrated that he is able to permit and
encourage frequent and continuing contact between G.D. and Plaintiff Mother.
Plaintiff Mother does not specify what "course of conduct" was designed by
Defendant Father, or his family, to "minimize Mother's involvement with the
child". If Plaintiff Mother is referring to Judge Ott's findings in the Orphan's
Court proceeding, the court did consider Judge Ott's decision among all of the
evidence presented at the custody hearings but his decision is not dispositive of
a custody determination as stated earlier in this opinion. Nor does Plaintiff
Mother specify what time frame she is referring to, or whether she is
referencing Father's conduct prior to or concerning the consent to adopt.
Plaintiff Mother's statement in paragraph 1 is simply a self-serving conclusion
without any supporting evidence from the record. "It is the appellant's
20
responsibility to precisely identify any purported errors". Schenk v. Schenk,
880 A.2d 633 (Pa. Super.2005). "When the trial court has to guess what issues
a defendant is appealing, that is not enough for meaningful review."
Commonwealth v. Dowling, 778 A.2d 683. 686 (Pa. Super. 2001). "In other
words, a concise statement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no concise statement at
all." Dowling, 778 A.2d at 686. Therefore, the court submits that paragraph 1
of Plaintiff Mother's Statement is inadequate to merit appellate review, and
Plaintiff Mother has waived any alleged error by the court. Pa.R.A.P.
1925(b)(4)(vii).
"2. The Trial Court abused its discretion in finding that
there was "no credible evidence that either parent has
attempted to turn the child against the other parent"
given the overwhelming evidence to the contrary including
but not limited to, a) the findings of the Orphan's Court
and of the Superior Court in the matter regarding Father's
procurement of a fraudulent consent to 'adopt, and b)
Father's (and his family's) course of conduct designed to
minimize Mother's involvement with the child both in the
form of physical custody and relating to her ability to
share in decision making relating to the child and to
alienate Mother from the child."
As stated previously in this opinion, Plaintiff Mother misstates the weight to
be given and the purpose of the evidence presented at the custody trial as to the
orders and findings of the Orphan's Court and of the Superior Court of
Pennsylvania. Plaintiff Mother does not specify what "course of conduct" was
designed by Defendant Father, or his family, to "turn the child" against Plaintiff
Mother. Nor does Plaintiff Mother specify what time frame she is referring to, or
whether she is referencing Father's conduct concerning the consent to adopt.
21
Plaintiff Mother's statement in paragraph 2 is simply a self-serving conclusion
without any supporting evidence from the record. Therefore, the court submits that
paragraph 2 of Plaintiff Mother's Statement is inadequate to merit appellate review,
and Plaintiff Mother has waived any alleged error by the court. Pa.R.A.P.
1925(b)( 4 )(vii).
"3. The Trial Court abused its discretion in failing to award
to Mother primary physical custody in light of the improper
conclusions drawn as to Custody Factors 1, S, and in
failing to properly weigh and consider factors 2,11 and 13
of 23 Pa.C.S.A. §532S(a)."
23 Pa.C.S.A §532S(a) lists the factors which the court must consider when
awarding any form of custody. Subsection(a)l) states that the court must consider
"which party is mor-e likely to encourage and permit frequent and continuing
contact between the child and another party. 23 Pa.C.S.A. 532S(a)(1). Subsection
(a)(S) states that the court must consider "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." 23
Pa.C.S.A. 532S(a)(S). 23 Pa.C.S.A. §532S(a)(2) states that the court must
consider "the present and past abuse committed by a party or member of a 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." 23 Pa.C.S.A. 532S(a)(2). 23 Pa.C.S.A. 532S(a)(11) states
that the court must consider "the proximity of residences of the parties." 23
Pa.C.S.A. 532S(a)(11). 23 Pa.C.S.A. 532S(a)(13) states that the court must
consider "the level of conflict between the parties and the willingness and ability of
22
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." 23 Pa.C.S.A. 532S(a)(13).
Plaintiff Mother's statement as to the custody factors under 23 Pa.C.S.A.
532S(a)(1) and (a)(S) is repetitive of her claims made in paragraphs 1 and 2 above
which the court has previously addressed. Furthermore, Plaintiff Mother does not
specify in what way the court abused its discretion in regard to 23 Pa.C.S.A.
532S(a)(1),(2),(S), (11), or (13), or what specifically are the "improper
conclusions" drawn by the trial court. Plaintiff Mother's statement as to cListody
factors under subsections (a)(1),(2), (S), (11), and (13) is simply a general
declaration that the court failed to properly consider these factors without any
specific reference to the evidence of record to support her claim. Therefore, the
court submits that paragraph 3 of Plaintiff Mother's Statement is inadequate to
merit appellate review, and Plaintiff Mother has waived any alleged error by the
court. Pa.R.A. P. 1925(b)( 4 )(vii).
Plaintiff Mother's statement fails to specify in what way the court abused its
discretion, and Plaintiff Mother fails to refer to any evidence from the custody trial
to support her general claims. As previously stated in this opinion, the transcripts
of ten (10) out of fifteen (15) days of trial were docketed prior to Plaintiff Mother
filing her appeal permitting Plaintiff Mother to support her conclusionary statements
with some supporting references from the trial record had she chosen to do so. The
court submits that Plaintiff Mother's Statement is inadequate to merit appellate
review, therefore, Plaintiff Mother has waived any alleged error by the court and
her appeal should be dismissed pursuant to Pa.R.A.P. 1925(b)(4)(vii).
23
Second, the court addresses Defendant Father's claims as follows:
"1. The Trial Court committed prejudicial error in
excluding evidence offered by Cross-Appellant,
including but not limited to evidence concerning
how Mother raised and cared for her son (not the
child at issue in this case), the medical care (or lack
thereof) provided to her son, child care decisions for
her son, and all other evidence concerning Mother's
son. "
Plaintiff Mother testified at the March 25, 2013 hearing that she is also the
mother of J.G, her son who was seven years old at the time of the hearing. J.G's
son's Father is not the Defendant Father in this case, and J.G. was not the subject
of this custody case. Despite Defendant Father's claim that the court excluded "all
other evidence" concerning Plaintiff Mother's care of her son, Plaintiff Mother
testified as to G.D's sibling relationship with J.G, the childcare arrangements she
has made for her son, his schooling, his relationship with her family, and his lack of
contact with his biological Father.
In considering the best interests of the child in a custody hearing, the court
must consider both parents' ability to care for the child, and to make child care
decisions for the child. However, the parent's ability to provide the necessary care
for the child must be determined at the time of the hearing. Bresnock v. Bresnock,
346 Pa.Super. 563, 500 A.2d 91 (1985), Michael T.L v. Marilyn J.L., 363 Pa.Super.
42, 525 A.2d 414 (1987)("A parent's ability to care for the child is to be determined
as of the time of the custody hearing, and, in making its decision, the trial court
must not dwell on matters buried in the past, but most concentrate only on those
matters which affect the present and the future of the child.") Plaintiff Mother's son
was not the subject of this custody case, and there was no proffer of any relevant
information as to J.G. which the court should have considered with regard to the
24
child. Based on the testimony presented at trial, both parents have contributed to
the lack of communication which has existed between them. Defendant Father's
claim that the court erred in not finding that Plaintiff Mother was responsible for
the lack of communication, and, therefore, she would be unable to "permit and
encourage frequent and continuing contact" is misplaced. "A minimal degree of
cooperation between parents which is a factor the trial court must consider in
determining whether to award parents shared custody of children does not
translate into a requirement that the parents have an amicable relationship".
B.C.S.v. J.A.S.994 A.2d. 600 (2010) PA.Super.63.
There was testimony from both parties that they and their families have
participated in disturbances during the custodial exchanges of the child, and that
both parents, and their families, have contributed to the "chaotic" atmosphere that
occurred at several of these meetings. Defendant Father's claim that the court
abused its discretion in not finding that Plaintiff Mother, and her family, were
responsible for the "chaotic events" at these exchanges, and, therefore, Plaintiff
Mother would be unable to "permit and encourage frequent and continuing
contact" is without merit.
There was no credible evidence presented at the custody trial that Plaintiff
Mother attempted to bring "false abuse charges" against Defendant Father.
Because the court is unclear if Defendant Father is referring to allegations of
abuse made by Plaintiff Mother involving herself or G.D., the court addresses both
issues herein. The court also notes that in his statement or errors, Defendant
Father does not specify any dates or specific instances when Plaintiff Mother is
alleged to have attempted to bring "false abuse charges" against him.
26
The protection from abuse petition filed by Plaintiff Mother in Montgomery
County on May 16, 2011, and the temporary order which was issued as a result of
the petition, were stricken by Judge Wall as part of the temporary custody
agreement reached by the parties on May 27, 2011 without any findings of fact.
There was no credible evidence at the custody trial, or finding by the court, that
Mother lied repeatedly about allegations of abuse by Defendant Father towards
her, or that she tried "to use it to her advantage before the Trial Court."
Plaintiff Mother did testify that after Defendant Father accused Plaintiff Mother
of somehow burning G.D.s mouth, she contacted Children and Youth Services.
Plaintiff Mother testified that she contacted the agency because "I was very
concerned. I knew I hadn't burnt her mouth .. " N.T. March 25, 2013 at 236.
Plaintiff Mother testified that Defendant Father refused to give her any information
about G.D.'s doctors at that time, so she could not contact G.D.s doctor about the
child's burnt lip. Plaintiff Mother stated ", .. I thought maybe I could get some
answers if they got involved .. .! knew they would have to contact [G. D. 's] doctor at
least, and I could rest knowing that...she was being looked at. .. " N .T. March 25,
2013 at 236-237. There was no credible evidence presented that Plaintiff Mother
contacted Children and Youth Services to file "false abuse charges" against
Defendant Father. Plaintiff Mother testified that she called Children and Youth
because she was worried about allegations Defendant Father was making towards
her, and because she was concerned about G.D.
Dr. Thomas Damiano testified that in February, 2013, Plaintiff Mother
brought G.D. to be examined into the Doctor's Express office in Wilmington,
Delaware where he worked. Dr. Damiano testified that Plaintiff Mother was
27
initially concerned that "two lesions" on G.D.s face and on G.D.s ankle could
potentially be signs of abuse. N.T. August 9,2013 at 31. Dr. Damiano testified
that after examining the child, he told Plaintiff Mother that he did not think the
marks were the result of abuse, but that due to Plaintiff Mother's statement to
him about her concerns of potential abuse, he would have to "due my due
diligence and call Child Protective Services .. " N.T. August 9,2013 at 35. Dr.
Damiano did not testify that Plaintiff Mother asked him to report to authorities,
and he did not testify that Plaintiff Mother raised any abuse allegations specifically
again5t Defendant Father. In fact, when asked by Defendant Father's counsel,
Ms. I\gnew: "Was she adamant about reporting it?", Dr. Damiano replied: "She
was not adamant about reporting it, but just if anyone brings up abuse we are
just obligated to report it." N.T. August 9,2013 at 38. There was no credible
evidence presented that Plaintiff Mother brought the child to Doctor's Express that
day in order to file "false abuse charges" against Defendant Father.
Defendant Father's claim that the court abused its discretion in finding that
Plaintiff Mother would be able to "permit and encourage frequent and continuing
contact" is not based in fact or on any credible evidence presented at trial and his
claim should be dismissed.
"3. The Trial Court abused its discretion in
finding that there is no continued risk of harm to the
child by Mother or by any member of Mother's
household, given the overwhelming evidence to the
contrary, including but not limited to, a) the
repeated and excessive bruising and other injuries
(i.e., burned lips, black eye) suffered by the child
while in Mother's care, b) the numerous rashes and
illnesses suffered by the child as a result of being in
the care of Mother, c) the behavior of the child after
returning from Mother's care such as hitting, head
butting, cursing, and problems with sleep, and d)
28
the evidence that Mother was oblivious about the
child's fevers, bruising, injuries, and illnesses."
There was extensive testimony by both of the parties as to minor injuries
such as occasional bruises, isolated rashes, a burnt lip, colds, and one instance of
hand, foot and mouth disease which the child has had over two and half years.
Although the child was taken on several occasions by both parents to doctor's
offices and emergency rooms, none of these alleged injuries, rashes, or colds were
ever categorized by the physicians who testified as anything other than minor. No
evidence was presented by either party as to the definitive source or cause of
these minor bruises, rashes, colds, or the child's burnt lip. Defendant Father's
claims that the child's colds, rashes, and bruises, and burnt lip were the "result of
being in Plaintiff Mother's care" is not based in fact or on any evidence presented
at trial. In fact, at the time these bruises, rashes, colds and the child's burnt lip
occurred, no allegations of abuse by Plaintiff Mother were made by Defendant
Father to any investigative agency. Additionally, the court notes that from
February 27, 2011 until and through the time of trial, Defendant Father had almost
total physical custody of the child with the exception of two (2) forty eight (48)
hour periods a month when Plaintiff Mother had custody of her. To allege that
unexplained bruises, rashes, colds, or a burnt lip were solely the result of the care
the child was receiving from Plaintiff Mother when Defendant Father had custody
the greatest majority of the time, is misplaced.
There was testimony at the trial from both parents, as well as other
witnesses, that the child is doing well emotionally, physically, and
developmentally. There was no credible evidence presented that demonstrated
that the child's occasional emotional outbursts, temper tantrums, or occasional
29
hitting were anything more than typical behavior of a two year old child, a toddler.
There was no evidence presented that Plaintiff Mother's care or treatment of the
child was the source or cause of any negative behavior exhibited by the child.
Plaintiff Mother testified as to the numerous times she has contacted doctors
or sought medical help when the child was sick or injured, and, the care she
administered to the child when she was sick or hurt. Her testimony was
corroborated by other witnesses, including, pediatricians who testified. The
testimony at trial is in direct contradiction to Defendant Father's statement above
that Plaintiff Mother was "oblivious" to the child's medical conditJons. Indeed,
defendant father's alternate argument as discussed prior hereto in 2. is that
Plaintiff Mother brings false charges against Defendant Father based on the child's
medical condition.
For the above stated reasons, the court did not abuse its discretion in
finding that there is no risk of harm to the child by Plaintiff Mother. Therefore,
Defendant Father's claim is without merit and should be dismissed.
"4. The Trial Court abused its discretion in
finding that Mother has provided the necessary care
of the child while in Mother's custody, in light of the
overwhelming evidence to the contrary, including
but not limited to, a) Mother's failure to provide
proper medical care for the child during the first two
months of her life and at other times, and b)
Mother's failure to properly care for or supervise
child resulting in excessive bruising and other
injuries to the child and illnesses suffered by the
child."
Plaintiff Mother testified that from the child's birth on December 28, 2010,
until February 27,2011 when Defendant Father took the child to his home, she
provided for the child's- daily care. She fed her, changed her diapers, put her down
30
for naps, bathed her, and took her to the doctor. N.T. March 25, 2013 at 90.
Plaintiff Mother stated that she called the doctor "all the time ... any little thing, a
skin irritation or a runny nose, I was calling the doctor and asking, because .. J
wanted her to be happy and comfortable." N.T. March 25, 2013 at 90. When
asked by her counsel, Ms. Sattin, if she took the child for vaccinations, Plaintiff
mother replied: "She wasn't due for shots, until after E.f>. took her. At two
months, she's due for shots ... she had her initial shots in the hospital, and then you
get them again at two months." N.T. March 25, 2013 at 91. There was also
testimony presented from the pediatrician who treated the child during her first six
months that according to his office's treatment schedule for newborns, the child
missed one vaccination and one check-up according to his office's treatment
schedule for newborns. N.T. August 12, 2013 at 22. The pediatrician also testified
that despite Plaintiff Mother missing the child's one-month checkup, Plaintiff Mother
called the pediatrician at least four times with questions and concerns about the
child. Additionally, Defendant Father testified that while the child was living with
Plaintiff Mother for the first eight weeks of her life, he never called Children and
Youth Services or the police over concerns for the care and safety of the child, and,
in fact, the only concern he did have was that the child "seemed to be a little bit
thin." N.T. June 5,2013 at 113-114.
Plaintiff Mother testified about her feeding of the child, childcare
arrangements, and the medical care she provided for the child as she grew older.
Plaintiff Mother also testified that when she picked up the child for her periods of
partial custody, on several occasions, she was immediately concerned about the
child's health, and, on one occasion, took the child directly to an urgent care facility
31
in Wilmington, Delaware on the way home from the custodial exchange. N.T. March
25, 2013 at 235.
There was no credible evidence presented by Defendant Father that Plaintiff
Mother failed to provide for the proper medical care of the child at any time, or that
Plaintiff Mother has failed to provide for the daily physical and emotional needs of
the child while the child has been in her custody. As previously stated above, there
was no credible testimony, much ·Iess "overwhelming evidence" presented by
Defendant Father that Plaintiff Mother failed to exercise proper supervision or care
of the child which led to the child getting bruised or catching colds. Defendant
Father's claim is not supported by the evidence which was presented at trial, and,
therefore, his claim is without merit and should be dismissed.
"5. The Trial Court abused its discretion in
finding no credible evidence that Mother has
attempted to turn the child against Father, given
the overwhelming evidence to the contrary,
including but not limited to, a) Mother's website,
Facebook pages, and other online presences, and b)
Mother's media coverage both online and on
television, that all set forth false and untrue
statements about Father, and disclosed confidential
Orphan's Court matters, which portray Father in an
extremely negative light and which child will be able
to see as she gets older and is able to read and get
online."
There was testimony presented at trial that Plaintiff Mother published the
details of her custody dispute with Defendant Father on a website, and, a video
presented that she gave interviews to news organizations as well. While it can be
argued that this behavior may not be advisable, there was no evidence presented
at trial that Plaintiff Mother did so with the intention of turning the child against
Defendant Father. Plaintiff Mother testified that "I wanted the story out there so
32
[the child] would know her mother fought for her .. .I also thought this would help
my case." N.T. June 3, 2013 at 258 and 260. At the time of the 2013 trial, the
child was two years old. Therefore, Defendant Father's claim that statements which
Plaintiff Mother posted on the internet or that she made in interviews were
designed to turn the child against Defendant Father are not credible as the child
could not read, or, comprehend the full ramifications of the custody dispute.
Defendant Father's statement that Plaintiff Mother's behavior will impact the child
when she is older "and able to read and get online" is speculative in relation to the
best interests of the child at this time, which is the relevant period of time for the
court to evaluate. Therefore, Defendant Father's claim is without merit and should
be dismissed.
"6. The Trial Court abused its discretion in
finding that the child is doing well physically and
emotionally while under the care of Mother and in
finding that Mother is able to attend to the daily
physical, emotional, developmental, educational and
special needs of the child in light of the
overwhelming evidence to the contrary, including but
not limited to, a) the repeated and excessive
bruising and other injuries (i.e. burned lips, black
eye) suffered by the child while in Mother's care, b)
the numerous rashes and illnesses suffered by the
child as a result of being in the care of Mother, c) the
behavior of the child after returning from Mother's
care such as hitting, head butting, cursing, and
problems with sleep, , d) the evidence that Mother
was oblivious about the child's fevers, bruising,
injuries and illnesses, e) Mother's failure to provide
proper medical care for the child during the first two
months of her life and at other times, f) Mother's
failure to properly care for or supervise child
resulting in excessive bruising and other injuries to
the child and illnesses suffered by the child, and g)
Mother's instability in where she lives, insufficient
sleeping arrangements for the child at Maternal
Grandmother's home, her many boyfriends, her job
history, problems with her brother (and his criminal,
33
violent and drug history) and problems with Mother's
son's Father (and his criminal and violent history)."
Defendant Father's claims in paragraph 6, sections a) through f) have
previously been addressed by the court in this opinion, and for the previously
mentioned reasons, they should be dismissed as having no merit. Defendant
Father's claims that Plaintiff Mother has unstable living arrangements and
insufficient sleeping arrangements for the child are equally without merit.
Plaintiff Mother testified that she lives with her Mother, p. Er. , in
Plymouth Meeting, Pennsylvania. Maternal Grandmother testified that she does
not have a criminal record, or any history of mental health issues, or drug and
alcohol abuse. N.T. June 4, 2013 at 194. Plaintiff Mother testified that if she were
to regain full custody of the child, the child would have her own bedroom while
living at maternal grandmother's house. Plaintiff Mother, and her current
boyfriend, K. P. , both testified that they were planning on living together at
Mr. P 's home in Elverson, Pennsylvania following the custody litigation. The
child would have her own bedroom, and has toys, a large yard , and a swing set at
Mr. P 's house. Plaintiff Mother and Mr. P had been dating approximately a
year and a half at the time of the custody trial. Mr. P testified that he is
employed as a banker, and is also involved in real estate and small business
investment. The testimony presented at trial shows that Plaintiff Mother does not
have an unstable or insufficient living arrangements for the child. Therefore,
Defendant Father's claim is without merit and should be dismissed
There was no evidence presented at trial to support Defendant Father's claim
that Plaintiff Mother had "many" boyfriends since G.D. was born, or that the
number of Plaintiff Mother's boyfriends has had any negative effect on the child, or
34
her best interests. Similarly, there was no evidence that Plaintiff Mother's job
history has had any negative effect on the child. Plaintiff Mother testified that she
quit her job at the "massage parlor" prior to the child's birth. Furthermore, Plaintiff
Mother's past conduct in relation to her dating history or her employment should
not significantly factor into the court's decision as to the best interest of the child as
long as the child is not negatively impacted. "Without evidence of a harmful effect
on the child, a parent's past conduct should have little weight in the court's custody
decision." Michael T.L. v. Marilyn J.L., 363 Pa.Super. 42, 525 A.2d 414 (1987); see
also ~(B. v. J.E.B,_, 55 A.3d 1193, 2012 PA Super 200 (2012)(holding trial court
erred by invoking Father's prior participation in a nontraditional sexual practice as
grounds for awarding custody of children to grandparents.). Therefore, Father's
claims as to Plaintiff Mother's dating and employment history are without merit and
should be dismissed.
Defendant Father's claim that Plaintiff Mother has "problems" with her
brother and "problems" with the Father of her son which would warrant denying
her custody of the child are not based on any evidence presented at trial. Plaintiff
Mother specifically testified that at the time of trial, she did not have any recent
contact with her brother or her son's Father. Defendant Father does not state
specifically what "problems" he is referring to, and how these alleged "problems"
negatively impact on the child. Defendant Father's claim is nonspecific and without
merit, and should therefore be dismissed. Counsel for Defendant Father was
counsel for the entire trial for defendant Father. Therefore, more specific claims
should have been made in his Pa.R.A.P.l025 (b) statement of errors.
35
"7. The Trial Court abused its discretion in
failing to award Father primary physical custody of
the child for the aforementioned reasons and the
improper conclusions drawn as to the custody factors
1,2,3,4,8,10 under 23 Pa.C.S.A. § 5328 (a)."
Defendant Father's claims in paragraph 7 of his statement of errors are
repetitive of the issues he raises in paragraphs 1 through 6 of his statement. As
previously stated by the court, Defendant Father's claims in paragraphs 1 through
6 al~e meritless and should be dismissed.
"8. The Trial Court abused its discretion
in failing to properly weigh and consider custody
factors 11 and 13 under 23 Pa.C.S.A. § 5328(a)
when entering its Order, given that the parties live
at least 1 and 112 hours apart and that this has been
such an extremely high-conflict case."
Defendant Father does not specify how the court abused its discretion or
failed to properly weigh and consider custody factors 23 Pa.C.S.A. § 5328(a)(1l) or
(13). Defendant Father also does not specify how the distance between the parties'
residences or the fact that he terms this case "high-conflict" bear on the court's
determination as to the best interest of the child. Therefore, the court submits that
paragraph 8 of Defendant Father's Statement is inadequate to merit appellate
review, and the Defendant Father has waived any alleged error by the court.
Pa.R.A.P. 1925(b)(4)(vii).
The court notes that, in reaching a decision as to custody of the child, the
court took into consideration the level of conflict between the parties pursuant to 23
Pa.C.S.A. § 5328(a)(13) when issuing its Order. On Page 6 of the September 26,
2013 Order, the court states that "the Court does find that there is a level of
conflict between the parents. The Court addresses this conflict below." Pursuant to
36
that finding, Page 10 of the September 26, 2013 order requires the parties to
attend co-parenting counseling and are to continue with counseling" until such
time as the counselor deems it no longer necessary, or, until further order of the
Court. "
If there is an optimum time to stop their disagreements, the time is now. As
the COUlt stated in its order, the child at the time of the orders was 2 % years old.
It is difficult for the court to order the parties to think in a certain way, but the
order for the parties to follow of September 27, 2013 is in G.D.'s best interests.
G.D,'s best interests are what the court has considered and so should her" parents.
"9. The Trial Court abused its discretion
in failing to enjoin Mother from disclosing the
details of the Adoption and Custody matters on the
internet, to the media or to any person or entity
not associated with the Custody or Adoption
matters, in light of the overwhelming evidence that
it would not be in the child's best interest, as much
of what Mother disclosed or published were false
and untrue statements about Father, and disclosed
confidential Orphan's Court matters, which
portrayed Father in an extremely negative light.
Mother also had future plans for more media and a
movie deal, in which child's life would be exposed
for all to witness."
The court previously addressed Plaintiff Mother's posting of information on
the internet and to the news media as stated above under 5 of Defendant Father's
issues. Defendant Father provides no authority to support his claim that the court
is permitted to enjoin Plaintiff Mother from exercising her right of free speech First
Amendment rights, and provides no supporting evidence to support his claim that
Mother's conduct has negatively affected or will negatively affect the best interests
of the child. In addition, Plaintiff Mother testified that she does not have a movie
37
deal pertaining to the custody or adoption cases, and that " . .I'm not in the media
anymore. I've decided not to do that." N.T. June 3, 2013 at 290. When asked by
Ms. Agnew: " ... once this is over ... and there is a ruling ... you plan to go forward with
more media coverage?", Plaintiff Mother replied: "Probably not, no. I don't plan on
it, no. Not at all." N.T. June 3, 2013 at 291.
There was also evidence presented at trial that Defendant Father's sister,
A. W. , started a website and also posted information about the adoption
and cu~,tody cases, including negative statements made about Plaintiff Mother. The
future impact on the child of reading statements made on either website is
speculative now, although, as previously noted by the court, such behavior is
unadvisable by either party or their families. However, based on Plaintiff Mother's
testimony that no movie deal or further media coverage was forthcoming, and no
evidence to the contrary being submitted by Defendant Father, the court did not
abuse its discretion in not "enjoining" Plaintiff Mother from pursuing what amounts
to speculative endeavors.
Plaintiff Mother and Defendant Father's claims as raised in their· 1925(b)
statements are without merit, and are not supported by the evidence presented at
trial.
For the above stated reasons, the court respectfully requests that Plaintiff
Mother's appeal be dismissed, Defendant Father's cross-appeal be dismissed; and
the September 27,2013 order be affirmed.
,a 9/J 1
BY THE COURT:
/dJt~ ~ ,l£~{~
PATRICIA E. COO NAHAN, J.
38
Copies ofthe above Opinion sent
on ;' ,i,: