L.D.S. v. R.J.S.

J-A21045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.D.S., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
R.J.S.,
Appellant No. 648 EDA 2014
Appeal from the Order Entered January 30, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2003-19168
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 11, 2014
R.J.S. (Mother) appeals from the order of January 30, 2014,1 which
transferred primary physical custody of S.S. (Child) from Mother to L.D.S.
as moot; vacate the January 30,
2014 order; and remand for the entry of a custody order consistent with this
memorandum.
Mother and Father married in September 1997, Child was born in
August 1998, and Mother and Father were divorced by decree entered in
November 2000. At all times since the divorce, the parties have shared
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The order is dated January 29, but was not filed until January 30, 2014.
We have amended the caption accordingly.
J-A21045-14
legal custody of Child, and Mother has had primary physical custody of Child
in Montgomery County, Pennsylvania. Father has resided in Alexandria,
Virginia, where he now lives with his wife (Stepmother), their two children
Child, as well as his exercise of that custody, are issues that the parties have
litigated in Montgomery County, by petitions to modify custody and for
contempt, since 2003.
schedule in Virginia included one scheduled weekend each month during the
school y
Father alternated major holidays from year to year. The September 2012
custody order also provided that Father and
However, Child spent only a fraction of the scheduled time with Father,
and the ordered counseling neither commenced immediately nor occurred
with regularity or frequency. The trial court summarized the resultant
continuation of the litigation as follows.
requesting the visits between Father and [C]hild occur in
Cont
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fi
of a Guar
hearings] on the outstanding petitions on October 24, 2013 and
January 14, 201[4]. On January 29, 2014, the [trial court]
entered a custod
reasoning behind the custody order) which kept the shared legal
custody provision intact but [following the end of the school
year,] awarded primary physical custody to Father subject to
cal custody for eight weeks in the summer,
one weekend per month and five additional custody weekends
that could be used any time during the year. The trial court also
ordered Father and [C]hild to undergo counseling immediately
and intensive counseling in the summer of 2014.
Trial Court Opinion, 3/24/2014, at 1-2.
Mother timely filed a notice of appeal and a concise statement of
maters complained of on appeal on February 27, 2014, and the trial court
filed its opinion on March 24, 2014.
Mother states the following questions for our review.
1. Did the trial court abuse its discretion and commit an
favor on factors [3, 4, 9, and 10 of 23 Pa.C.S. § 5328(a)], when
the same court, by custody order of September 5, 2012, found
2. Did the trial court abuse its discretion and commit an
error of law in analyzing factors [1, 8, 13, and 16 of subsection
5328(a)], and in its ultimate conclusion?
3.
physical custody to Father the result of partiality, prejudice, bias
and ill will against Mother and the minor Child and in favor of
Father?
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4. Did the trial court abuse its discretion and commit an
with Mother was not well-reasoned?
-2 (suggested answers and unnecessary capitalization
omitted).
questions on appeal collectively, it is clear that she
is arguing that proper application of the statutory factors requires a
physical custody. Thus, rather than examine each of her questions
that led it to the opposite conclusion to determine whether it committed an
error of law or abuse of discretion.
Our standard of review of custody determinations is as follows.
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court's
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court's conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (quoting Durning v.
Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa. Super. 2011)).
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the best-interests analysis, a trial court is required to consider the factors
set forth at 23 Pa.C.S. § 5328(a). See E.D. v. M.P., 33 A.3d 73, 80 (Pa.
The section 5328(a) custody factors are as follows.
(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
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)
education, family life and community life.
(5) The availability of extended family.
(6) ps.
(7) The well-reasoned preference of the child, based on the
(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.
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(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)
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 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
(15) The mental and physical condition of a party or member of
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
the factors challenged by Mother on appeal,2 it appears that little has
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2
The only factor not challenged by Mother on appeal which favors one party
is that, where
possible, siblings should be raised together absent compelling reasons to do
L.F.F. v. P.R.F., 828 A.2d 1148, 1152 (Pa. Super. 2003)
Gancas v. Schultz
policy is a consideration in, rather than a determinant of, custody
L.F.F.
(Footnote Continued Next Page)
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changed factually. Rather, the lack of improvement in the compliance of
Mother and Child with the custody orders led the trial court to conclude that
a new custody arrangement was necessary to force Child to have a
relationship with Father.
and continuity in education, family life, and community life. In 2012, the
trial court emphasized the importance of this factor:
which [the trial c]ourt hopes to provide with this custody order.
both parties to
cooperate and enforce the order. [Child] has been enrolled in
the Lower Merion school system for the majority of his school
years. He has numerous friends, hopes to enroll in TSA or the
Science Olympiad and therefore the [trial c]ourt is hesitant to
remove him from this school system. Furthermore, [Child] has
an IEP and is vested with the school system.
Order, 9/6/2012, at 4 (emphasis in original). In 2014, the trial court
acknowledged that factor 4 continued to weigh heavily in favor of
maintaining primary physical custody with Mother, but concluded that it was
The [trial c]ourt acknowledges the need for stability and
Mother testified that while [Child] was initially diagnosed on the
_______________________
(Footnote Continued)
Virginia with Father. Father testified that Stepsiblings adore Child, and that
Child has a good relationship with them. Child testified that there is not
10/24/2013, at 120, who are both significantly younger than Child and have
never lived with Child full-time. Nonetheless, we note that this factor weighs
in favor of Father.
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autism spectrum, she has worked hard as his educational
advocate over the years and was successful in mainstreaming
him into regular classes. [Child] has been enrolled in the Lower
Merion school system for the majority of his school years, has an
IEP, and achieves excellent grades. Mother testified that [Child]
has significant extracurricular involvement to create ties to the
community including weekend cleanups, working the polls on
Election Day, and tutoring younger children. Father disagreed
with this assertion and maintained that [Child] only recently
began participating in some of these activities. Father presented
testimony of the school district where he lives as well as the
many extracurricular activities that are available for [Child].
While the [trial c]ourt understands that [Child] has always lived
in Pennsylvani
significance of the father-son relationship, which is not being
fostered in the present environment.
Findings of Fact, 1/30/2014, at 4.
In deny
2012, the trial court stated as follows regarding factor 1 (which party is
more likely to encourage frequent and continuing contact between Child and
the other parent).
Father testified that, if given primary physical custody, he
would cooperate with Mother as it is his belief that the primary
custodial parent has to be cooperative with the non-custodial
parent to foster a relationship. While the [trial c]ourt was
concerned about how, during trial, Mother was unable to put
-custodial parent and
consequently unwilling to give Father more custodial time; the
subsequent emails submitted to the [trial c]ourt demonstrated
that Mother was willing to ensure Father received his summer
custodial visitation.
Order, 9/6/2012, at 3. In 2014, the trial court offered the following
frustration with Mother and Child.
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that Father would be more
likely to encourage and permit frequent and continuing contact
between [Child] and Mother. Father testified that, if given
primary custody, he would ensure that [Child] maintained
contact with Mother. The [trial c]ourt did not find Mother
credible when she testified that she has encouraged [Child] to
visit Father in Virginia. [Child] consistently has not abided by
weekend time with Father. For example, [Child] did not attend
his summer custodial period with Father in 2012, and in 2013,
after an emergency conference where [the trial c]ourt ordered
[Child] to go to Virginia for three weeks, he still refused.
Despite these blatant violations, Mother has not punished [Child]
for his behavior, which leads [the trial c]ourt to believe that she
does not believe his conduct is a problem. Moreover, according
OurFamilyWizard[3] calendar
with activities, trips and appointments that thwart his custodial
time.
Rather, Mother consistently files petitions to modify
though the judges of this Commonwealth have emphasized the
excuses for [Child] as to why he cannot spend the requisite time
with Father (for example, activities, trips, etc.). At the January
14, 2014 hearing date, Mother testified that she would like a
shortened to six weeks (no longer than one or two weeks at a
Mother also testified that she believes it is preferable if Father
travels to Philadelphia for his custodial time even though Father
is remarried with two young children and has a full-time dental
practice where he is on call at the hospital for dental related
traumas.
custodial rights has been an ongoing problem. In the [trial
____________________________________________
3
-based website which is designed as a
medium for divorced or separated parents to communicate and manage
issues regardi Wilcoxon v. Moller, 132 So.3d 281,
284 n.1 (Fla. App. 2014).
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Mother imposed no consequences on [Child] for his defiance of
authority and advised her to adopt structure and disciplinary
techniques. That has not occurred. Instead, [Child] continued
to violate [the
[Child].
Findings of Fact, 1/30/2014, at 2-3 (footnotes omitted).
Factor 7 considers the well-reasoned preference of Child. Child
indicated both in 2012 and in 2014 that he preferred to remain with Mother.
The [trial c]ourt interviewed [Child] on July 24, 2012 and
found him to be mature with good judgment. To protect the
confidentiality of this communication, the [trial c]ourt will not
reveal all the details but will state that [Child] relayed that
Mother does encourage him to spend time with Father and that
she has tried everything to make him comply. However, [Child]
revealed that his disinterest [sic] in spending time with Father
family which make him uncomfortable and that [Stepmother]
and Father speak derogatorily about Mother and her family. It
appears that [Stepmother] has a derogatory nickname for
Mother that upsets him. [Child] feels that the questions Father
asks are not sincere but are geared toward the custody battles.
[Child] agreed to return to Virginia to make an attempt to work
out his differences with Father. On or about August 3, 2012,
concerns, and the parties are directed to set up counseling with
Father and [Child].
Order, 9/6/2012, at 4-5. However, in 2014, the trial court changed its
Most recently, [Child] testified before the [trial c]ourt on
October 24, 2013 and January 14, 2014. On January 13, 2014,
[Child] stated that he did not want the custodial schedule to
change. However, the [trial c]ourt did not conclude that
-reasoned. For example, at the
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October 24, 2013 hearing [Child] testified that Father
of any incidents, [Child] testified that father told him to go to his
room and stay there. During spring break [in] 2013, [Child]
even though Father was not home at the time that the police
ed
that he has not spent any time with Father and that Father is not
nice to him. The [trial c]ourt did not find [Child] credible as the
tainted and [Child] has a tendency to exaggerate incidents.
Findings of Fact, 1/30/2014, at 5 (footnote omitted).
Pursuant to factor 8, the trial court is to consider the attempts of a
parent to turn Child against the other parent. In 2012, the trial court found
that
both parents may engage in that type of behavior to some
degree. As already discussed, [Child] testified to the derogatory
comments made by Father and his family. However the [trial
c]ourt was concerned about the story relayed by Lisette Parks[4]
where [Child] allegedly stated that Mother did not want him to
speak to Lisette who has an obvious love and affection for
[Child] and cherished her relationship with him. Furthermore,
the [trial c]ourt finds the chain of emails, as to which parent is
actually using [Child] to obtain information, is also despicable.
Order, 9/6/2012, at 5. The trial court offered the following analysis of factor
8 in 2014.
The [trial court] is concerned that Mother fosters and/or is
content with an atmosphere that relegates Father to a lesser
status in the eyes of [Child]. While both parties claim not to
make derogatory comments about the other parent in the
presence of [Child]; [Child] testified that father and his family
____________________________________________
4
It is unclear to this Court who Lisette Parks is. It appears that she might
be a relative of Stepmother.
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make derogatory comments about Mother and call her names in
Spanish. While Father did acknowledge that some comments
were made about Mother; the [trial c]ourt did not find that the
comments were outrageous or ongoing. Although there is no
evidence that Mother is openly degrading Father to [Child]; as
discussed in detail in 23 Pa.C.S. §
violations of the custody orders has enabled [Child] to refuse to
visits.
Findings of Fact, 1/30/2014, at 5.
Factor 9 requires the trial court to weigh which party is more likely to
maintain a loving, stable, consistent and nurturing relationship with Child
requires the court to determine which parent is more likely to attend to the
daily physical, emotional, developmental, educational, and special needs of
Child. In 2012, the trial court offered the following discussion of factors 9
and 10.
It was evident to the [trial c]ourt that both parties love [Child]
and either would maintain the relationship appropriate for his
rigidity and need to make points. This became evident through
his testimony, emails and conversations. Father needs to be
cognizant that [Child] is now a teenager with his own ideas,
needs and opinions and the [trial c]ourt is hopeful that
counseling will help Father and [Child] develop the means for a
healthier and more mutually acceptable mode of communication.
***
As noted above, it was evident to the [trial c]ourt that both
parties love [Child] and either would maintain the relationship
the [trial c]ourt finds that Mother would be more likely and able
to attend the physical[,] emotional and educational needs of
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[Child]. [Child] has always lived with Mother and attended the
same school district. [Child] really likes his school and is excited
about the new school year. There was no testimony presented
tended to and Mother appears to have the time and ability to be
available for [Child].
Order, 9/6/2012, at 5-6. The testimony offered at the hearings leading up
through with the court-ordered counseling, and his relationship with Child
had deteriorated. Nonetheless, the trial court analyzed factors 9 and 10
quite differently in 2014.
Both parties are capable of maintaining a loving and
nurturing relationship with [Child]; however, Mother must realize
with Father. Father testified to his belief that [Child] is under a
great deal of pressure to make Mother happy. For example,
Father testified that [Child] will not let Father take pictures of
him having a good time in Virginia.
Father, his persistence in not spending time with him and the
vastly different stories that are told by Father and [Child]. For
example, Father testified to the loving relationship between his
Virginia family and [Child] and the great time everyone had on
Thanksgiving. When [Child] testified, he indicated that he did
not feel close to his half-siblings and he begged his aunt and
uncle to let him go home with them. At this point, without
substantial counseling, the [trial c]ourt has concerns about
whether Father can solely repair the relationship with [Child]. If
Father is willing and committed to engage in serious and
meaningful therapy with [Child] (which he says that he is), [the
trial court] believe[s] that father would be able to institute the
structure necessary to maintain a more stable and consistent
relationship for [Child].
***
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[Child] in 2007 and mainstreaming him thereafter. Father
attends the yearly IEP meetings by phone. As primary
developmental and special needs (regarding schooling);
however, the [trial court] believes that Father is also capable of
attending to these needs if [Child] is in his primary custody.
conclusio
have contact with both parents.
Findings of Fact, 1/30/2014, at 5-6.
The level of conflict and cooperation between the parents is the focus
of factor 13. Again, nothing appears to have changed over the years
regarding this factor. The trial court noted the high degree of conflict and
lack of cooperation both in 2012 and in 2014.
Testimony revealed that there is a great level of conflict
between the parties and their unwillingness and inability to
cooperate with one another. The parties are both obviously
intelligent and bear considerable anger against each other. It
was very apparent that their respective strong wills make[] it
nearly impossible to encourage co-parenting strategies.
Furthermore, the [trial c]ourt noticed an underlying difference in
the ideologies the parties have for parenting [Child]. At one
struc
defying authority (for example, for reading legal mail or for not
attending custodial visitation with Father), Mother had no
punishments.[5] As [Child] is now a teenager and entering high
____________________________________________
5
This appears to be overstatement by the trial court. Child is a straight-A
student and is active in the community. There is nothing in the record
(Footnote Continued Next Page)
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school, Mother will need to provide more structure to ensure that
[Child] has the support he needs as he faces the challenges that
inability to cooperate and provide a semblance of consistency in
parenting [Child] is even more harmful to [Child].
Order, 9/6/2012, at 6-7.
There is a high level of conflict and a seemingly
nonexistent level of cooperation between the parties. In
actuality, this case ranks as one of the highest conflict cases the
[trial court] has ever presided over. The case was originally filed
in 2003 and, including the [trial court], there have been seven
judges who have presided over this matter.
The parties do not communicate over the telephone, rather
they only communicate via text or email. Father restricted
for her use; however, Father testified that he only checks that
email address every two to three days. Father also testified that
he does not regularly check the OurFamilyWizard program,
which was ordered as of September 5, 2012. Father seemingly
then readily admits he does not consistently track any of the
avenues of communication. Mother, on the other hand, assumes
that Father should be aware of certain events by virtue of the
fact that the event is plugged into the OurFamilyWizard
calendar. Mother must realize that even if she inputs an event
separate email requesting that Father relinquish his custody
Merely inputting the event into OurFamilyWizard
custodial time does not mean that Father has agreed to the
event.
The parties blame each other for the conflict and neither
can see his or her contribution to the problems. For example,
while Mother complies with the order to communicate and uses
_______________________
(Footnote Continued)
related to the instant appeal that suggests that Child has misbehaved, and
thus warranted punishment, in any way unrelated to his refusal to spend
time with Father.
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OurFamilyWizard
complains that he does not receive information but rarely checks
his email or the OurFamilyWizard calendar
communication has caused negative consequences such as
misunderstandings with train schedules and ongoing problems
with custody schedules.
Findings of Fact, 1/30/2014, at 7.
Factor 16 allows the trial court to expound on any other factor it finds
includes no discussion under factor 16. In 2014, the trial court offered the
following.
first order issued by the [trial court], dated April 25, 2012,
directed Father and [Child] to attend joint counseling. Pursuant
to this order, the parties were to submit the names of counselors
and agree on a therapist. The [trial c]ourt agreed to make
several concessions to Father (such as scheduling at the end of
the day, finding a therapist close to the train and/or allowing
Skype sessions) considering the fact that Father was traveling
from Virginia. After the counselor was changed (for a variety of
reasons), on September 21, 2012, [the trial c]ourt ordered
Father and [Child] to commence therapy with Dr. Talia
Eisenstein. Unfortunately, the therapy did not commence until
late January 2013 and subsequently broke down.13 From August
through September, the [trial court] entered an additional order
directing Father to commence counseling. Despite these orders,
Father apparently attended only one session in November.
However, Father produced several emails from November
through January showing several attempts on his part to
schedule both in person and Skype sessions with Dr. Eisenstein.
schedule and lack of availability.
_____
13
Dr. Eisenstein submitted a written report to the [trial
court] on April 17, 2013 citing various difficulties with the
Philadelphia for sessions and the ineffectiveness of Skype
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sessions. Dr. Eisenstein noted that she did not believe she
could effectively provide therapy under the circumstances.
Father testified that he believes the therapy (with Dr.
Eisenstein) is being used as a club to interfere [with] and
sabotage his custody. He testified that when he tries to discuss
issues with [Child], he is told by [Child] that they have to wait to
discuss it in therapy. He felt that the therapy was not helpful
because it is being used to thwart and delay custody since [the
trial c]ourt stressed the need for both father and son to attend.
The [trial c]ourt agrees with Father that the therapy (or lack
thereof) is being used, to some degree, as an excuse for
c]ourt believes that a stringent course of therapy is required for
Father to repair the father-son relationship. If Father does not
intensive therapy, the [trial c]ourt will consider vacating its order
and reinstating the previous order.
Findings of Fact, 1/30/2014, at 8-9.
conclusions are
unreasonable under the circumstances of this case, and ultimately the trial
court abused its discretion in awarding Father primary physical custody of
Child.
As noted, the facts have not changed much between the 2012 and
2014 orders. Chi
aspects other than his refusal to spend time with Father. Mother still does
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Virginia. Father still has not attended more than sporadically the counseling
with Child that the trial court has ordered repeatedly,6 and does not check
his email or OurFamilyWizard
schooling and activities.
the custody factors, what
failure of Mother and Child7 to obey its prior custody orders. It appears that
____________________________________________
6
The trial court ordered counseling to begin by order entered in May 2012.
Other orders requiring Father to participate in weekly counseling were
entered in 2012 and 2013. According to Mother, Father attended exactly
two sessions. The testimony is unclear whether this number includes all
sessions with all counselors over the entire time counseling was ordered.
However, Father admitted to attending only two sessions in the thirteen
months prior to the October 2013 hearing. If Father had participated in
weekly counseling, he would have attended at least four sessions each
month for twenty months.
7
For example, the trial court had the following exchange with Child.
[Trial Court]:
child who is just not obeying my orders. And I have worked with
done everything you wanted me to do. Everything you asked
agreement, kind of a contract, that I was going to give you the
safety measures that you needed and you were going to
the bargain at all. So you tell me what we need to do to make
you comply with these orders.
***
If you were an a
want to do that.
(Footnote Continued Next Page)
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s
decision to place Child with Father. See, e.g., Findings of Fact, 1/30/2014,
r may be an appropriate foundation for a
Clapper v. Harvey, 716 A.2d 1271, 1275 (Pa. Super. 1998). Rather, such
ent so
obstructs the visits between the child and the non-custodial parent that the
English, 469 A.2d
at 273 (quoting Pamela J.K. v. Roger D.J., 419 A.2d 1301, 1309 (Pa.
Super. 1980)).
_______________________
(Footnote Continued)
[Child]: Am I allowed to be put in jail?
[Trial court]:
can assure you, I would never do that to you, okay, but at some
point you have to start cooperating with me.
N.T., 10/24/2013, at 147, 150.
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Here, Mother pleaded with Child to spend the ordered time with
Father. Her error was declining to punish or otherwise coerce Child to go
when Child refused. The trial court has the power to sanction Mother for
he custody orders. The
proper question for custody modification, however, is what custody
best interests.
remain with Mother as not well-reasoned.
The weight to be accorded a child's preference varies with
the age, maturity and intelligence of that child, together with the
reasons given for the preference. Moreover, as children grow
older, more weight must be given to the preference of the child.
As this Court has recently reaffirmed, where the households of
both parents were equally suitable, a child's preference to live
with one parent could not but tip the evidentiary scale in favor of
that parent.
B.C.S. v. J.A.S., 994 A.2d 600, 604 (Pa. Super. 2010) (quoting Wheeler v.
Mazur, 793 A.2d 929, 937-38 (Pa. Super. 2002)).8
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8
It has been said that a child of 16 or 17 is like an elephant - he sleeps
have to recognize the limitations of their power in determining where older
teenagers must reside.
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incidents with
Father is supported by the record.9 However, Father admitted to such things
as yelling at Child so loudly that Child called the police, N.T., 1/14/2014, at
98; asking a police officer who showed up one of the times Child called to
arrest Child for assault because he thought having Child arrested was in
held in contempt and adjudicated delinquent, N.T., 10/24/2013, at 44-45;
and threatening to send Child to military school, N.T., 1/14/2014, at 41.
Thus, Child is not imagining that there is conflict.
Further, the trial court ignored other reasons Child offered for not
wanting to move to Virginia:
here, everything I worked for, my family loves me up here,
everything, everything I do, my school, my life. And if you just
take that away from me and you move me down there, there
friends. My dad, I
N.T., 1/14/2014, at 268.10 Given that Child is a teenager, preparing to
begin his junior year of high school, and he spoke of issues which are not
____________________________________________
9
10/24/2013, at 115. Upon further questioning, Child indicated that what
Id.10
Child has an expressive language disorder. See, e.g., N.T., 1/14/2014, at
278. Although he wished to read a statement that he had written at the
(Footnote Continued Next Page)
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only reasonable, but expected for a child his age, his preference deserves
consideration.
Next, the trial court strongly emphasized the importance of counselling
10/24/2013, at 151. Indeed, it went so far as to conclude that Father was
Findings of Fact, 1/30/2014, at 6.
Yet, as noted above, see note 6, supra, Father has spent two years
disobeying orders to participate in counseling. He testified in October 2013
that he does not believe that having participated in the ordered counseling
would have made any difference to his relationship with Child. See N.T.,
10/24/2013, at 43; id. at 44 (stating that one hour a week is not going to
change anything; it would not be any different than no counseling at all).
just coming down to live with you is going to change the entire relationship
Id. at 44.11
_______________________
(Footnote Continued)
suggestion of Dr. Eisenstein, the trial court would not allow it. N.T.,
1/14/2014, at 272.
11
Father also testified that he wants Child to move to Virginia because Child
Id. at 236. The testimony bears out the trial co
(Footnote Continued Next Page)
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belief that Father suddenly will comply with orders to attend counseling, and
its decision to predicate a change of custody on that belief, is unreasonable
-standing antipathy.
emotional needs is unsupportable. Father has to develop a loving and
nurturing relationship with Child before he can maintain one. Although the
exaggerated or unwarranted, it is unquestioned that Child is emotionally
distraught about his interactions with Father. At times, Father appears to be
oblivious to the effect his actions have on Child:
You know, that night which you speak of that, you know, I raised
my voice at him I thought I connected, I got through and, you
our nails done. We ate dinner. I said good night. He would go
and the police are at my house.
N.T., 1/14/2014, at 98.
Id. at 263. Forcing Child to live with Father primarily, without
Father having participated in the ordered counseling to work on their
communication issues, is almost certain to traumatize Child emotionally.
_______________________
(Footnote Continued)
focus being on structure and discipline.
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J-A21045-14
However, the trial court wen
Mother and Father to work together with the Virginia school system to
Id. pon Mother
and Father being able to cooperate simply cannot be justified in light of the
conflict and a seemingly nonexistent level of cooperation between the
Id. at 7.
enjoyed in a long-standing custody arrangement, and the happy
relationships a child has developed with a parental figure and others may be
E.A.L. v. L.J.W., 662 A.2d 1109,
1117 (Pa. Super. 1995). See also K.L.H. v. G.D.H., 464 A.2d 1368, 1373
E.A.L., 662 A.2d at 1117 (quoting English
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v. English, 469 A.2d 270, 273 (Pa. Super. 1983)). See also Masser v.
Miller, 913 A.2d 912, 921 (Pa. Super. 2006) (quoting Johns v. Cioci, 865
benefits of continuity and stability in custody arrangements and to the
possibility of harm arising from disruption of longstanding patterns of
In the instant case, there is no discussion by the trial court about the
possibility of harm to Child in uprooting him from the care pattern he has
known his entire life and sending him, against his will, to live with Father.
Even Father acknowledged that moving Child to Virgin
that Child would be taken away from his school and his friends his junior
year of high school, and placed in a home that he has spent two years trying
to avoid, or, when he is there, seeking any means of leaving as soon as
possible.
We do not minimize the benefit and importance of Child establishing
and maintaining a healthy relationship with Father. Nor do we discount the
harm that Mother has allowed to o
relationship with Father. If she does not improve in this regard, a finding of
contempt and sanctions against her could be appropriate. Nonetheless, with
eractions with
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Mother during the school year. In all respects other than his relationship
with Father, Child is thriving in his environment in Pennsylvania.
Accordingly, consistent with this memorandum, we remand this case for
entry of a new custody order granting primary physical custody to Mother.12
In the meantime, the provisions of the September 2012 custody order shall
apply.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
____________________________________________
12
Because we file this memorandum prior to the beginning of the school
or Stay.
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