E.M. v. D.Z.

J-A03036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
E.M., FATHER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
D.Z., MOTHER
Appellee No. 2086 EDA 2015
Appeal from the Order Entered June 8, 2015
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2013-61073
BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 10, 2016
Appellant, E.M. (“Father”) appeals from the order entered in the Bucks
County Court of Common Pleas, which granted primary physical custody of
the parties’ minor child, J.Z. (“Child”), to Appellee, D.Z. (“Mother”) subject
to periods of partial custody by Appellant. We affirm in part but vacate and
remand for clarification of the order.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issues for our review:
WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
OR COMMITTED AN ERROR OF LAW WHEN IT AWARDED
[MOTHER], PRIMARY PHYSICAL CUSTODY BASED UPON
UNREASONABLE CONCLUSIONS IN LIGHT OF THE TRIAL
COURT’S SUSTAINABLE FINDINGS OF FACT?
J-A03036-16
THE [TRIAL] COURT’S AWARD OF PRIMARY CUSTODY TO
[MOTHER] WAS NOT SUPPORTED BY THE EVIDENCE
PRESENTED UNDER THE CUSTODY FACTORS ENUMERATED
IN 23 PA.C.S. § 5328(A), THE MAJORITY OF WHICH
WEIGHTED IN FAVOR OF [FATHER], AND WAS THUS
UNREASONABLE IN LIGHT OF THE [TRIAL] COURT’S
SUSTAINABLE FINDINGS OF FACT.
WHETHER THE [TRIAL] COURT’S ORDER AWARDING
PRIMARY PHYSICAL CUSTODY TO [MOTHER] WAS
UNREASONABLE IN LIGHT OF THE EVIDENCE PRESENTED
ON THE RECORD AND THE CIRCUMSTANCES OF THIS
CASE BECAUSE, WHEN CONSIDERING THE BEST
INTERESTS OF THE CHILD, THE [TRIAL] COURT FAILED TO
GIVE APPROPRIATE WEIGHT TO [MOTHER]’S ONGOING
ATTEMPTS TO DEPRIVE THE MINOR CHILD OF FATHER’S
CARE AND AFFECTION, WHICH IS PROBLEMATIC IN LIGHT
OF THE [TRIAL] COURT’S SIMULTANEOUS CONCLUSION
THAT [MOTHER] LIED TO AUTHORITIES AND MEDICAL
PROVIDERS ABOUT FATHER, AND HAS NOT AND WILL NOT
FURTHER THE CHILD’S RELATIONSHIP WITH FATHER?
WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION IN AWARDING [MOTHER] PRIMARY PHYSICAL
CUSTODY OF THE PARTIES’ MINOR CHILD, WHEN SUCH
AWARD WAS AGAINST THE WEIGHT OF THE EVIDENCE
PRESENTED AT TRIAL, AND IS CONTRARY TO THE BEST
INTEREST OF THE CHILD?
WHETHER THE [TRIAL] COURT ERRED WHEN IT FAILED TO
MAKE A FINDING OF SHARED LEGAL CUSTODY BASED
UPON ITS SUSTAINABLE FINDINGS AND THE EVIDENCE
PRESENTED?
WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
OR COMMITTED AN ERROR OF LAW IN FINDING THAT IT
WAS NOT IN THE BEST INTEREST OF THE MINOR CHILD
TO CHANGE THE CHILD’S NAME TO INCLUDE FATHER’S
SURNAME, IN LIGHT OF THE COURT’S SUSTAINABLE
FINDINGS?
(Father’s Brief at 4-5).
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J-A03036-16
Our scope and standard of review of a custody order are as follows:
[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.
* * *
[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.
A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014) (quoting R.M.G., Jr. v.
F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009)).
With respect to a custody order, Section 5328(a) provides:
§ 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
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J-A03036-16
permit frequent and continuing contact between the
child and another party.
(2) The present and past abuse committed by a party
or member of the party’s household, whether there is a
continued risk of harm to the child or an abused party
and which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and
involvement with protective services).
(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.
-4-
J-A03036-16
(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). In expressing the reasons for its decision, “there is
no required amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that the custody
decision is based on those considerations.” M.J.M. v. M.L.G., 63 A.3d 331,
336 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A
court’s explanation of the reasons for its decision, which adequately
addresses the relevant custody factors, complies with Section 5323(d). Id.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Alan M.
Rubenstein, we conclude Father’s issues for the most part merit no relief.
The trial court comprehensively discusses and properly disposes of the
questions presented. (See Trial Court Opinion, filed August 21, 2015, at 16-
23) (examining each relevant factor under applicable statutes; custody and
name-change decisions are in Child’s best interests). Nevertheless, we
observe that the custody order does not fully reflect the court’s custody
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J-A03036-16
decision, as its opinion relates, with regard to legal custody and federal
holidays. Further, the order makes no mention of Mother’s Day and Father’s
Day to be awarded to the respective parent. Therefore, the best resolution
of this case is to affirm the custody decision on the basis of the trial court’s
opinion but to vacate and remand the matter to the trial court to clarify its
custody order and revise it accordingly.
Order vacated; case remanded for clarification. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2016
-6-
Circulated 02/25/2016 02:24 PM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
FAMILY DIVISION
NO. 2013-61073-C
vs. CUSTODY
CHILDREN'S FAST TRACK
APPEAL 11111111111111
OPINION Case#: 2013-61073 C 809 10963379
Code: 5076 Judge:34
Patricia L. Bachtle, Bucks County Prothonotary
Rcpt: 21361323 8121/201512:02:03 PM
· r. M· . ("Father") has appealed from this Court's Order of June 8, 2015
awarding primary physical custody of the parties' minor child, \("J.Z.")
(D.0.8.: ·~ 2013), to 1). "l.:. {"Mother), and awardingpartial custody of J.Z.
to Father on the first, third and fifth weekends as they occur from Friday at 6 p.m. until
Sunday at 6 p.m.
Our Order also provides that Father shall have custody of J.Z. on the federal
holidays of Presidents Day, Columbus Day and Veterans Day, and he shall have custody
of J.Z. on Independence Day, Labor Day, Halloween Eve, Thanksgiving Day and
Christmas Day in odd-numbered years. Our order also directs that each party shall, with 30
days' notice to the other party, have two (2) nonconsecutive weeks of vacation.
Because this appeal has been designated as a "Children's Fast Track Appeal," this
Court is required pursuant to Pa. R.A.P. 1925(a)(2)(ii) to expedite an Opinion specifying
the reasons for our Order. The Notes of Testimony for the eight (8) hearings have not yet
been transcribed. Therefore, we have relied upon our contemporaneous notes and
recollection of the testimony.
We have filed a written Order reflecting our findings and conclusions, and we have
attached a transcribed copy of that portion of the Notes of Testimony (45 pages). We have
also attached a copy of our written Order of June 8, 2015.
Litigation in this matter was commenced when Father filed two (2) "Emergency
Petitions for Custody" in the Montgomery County Court of Common Pleas on or about
April 23, 2013 and May 3, 2013. Thereafter, on June 11, 2013, the parties entered into a
Temporary/Interim Agreed Custody Order in Montgomery County which provided for
DNA testing, shared joint legal custody, and for Mother to have primary physical custody
and Father to have "phased in" partial custody. Because Father resides at (
. Jenkintown, Pennsylvania, but Mother resides with the child at,
Sellersville, Bucks County, Pennsylvania, the Order included an agreement to transfer this
matter to the Bucks County Court of Common Pleas.
The case came before this Court after Father filed a "Petition to Modify Custody
and for Contempt of Custody" on August 12, 2013 in the Bucks County Court of Common
Pleas. In his Petition, Father alleged that Mother was in contempt of the shared legal
custody provisions of the June 11, 2013 Montgomery County Order by removing the child
from the Commonwealth and making important medical decisions for the child without
consulting Father. Father also alleged that Mother refused to provide necessary documents,
e.g., Social Security card, for the child. In his Petition to Modify Custody, Fatherrequested
shared physical custody of the child.
One month later, on September 12, 2013, Mother filed a "Petition for Counsel Fees
for Litigation which is Arbitrary, Obdurate, Vexatious and/or in Bad Faith," and then on
September 24, 2013, Mother filed an Emergency Petition to Modify Custody. In her
Emergency Petition, Mother alleged that although she was breastfeeding the infant child,
Father was either improperly or completely failing to feed the infant when the child was in
his partial custody.
Eight (8) days of hearings were subsequently conducted over a twenty (20) month
period: November 6, 2013, February 12, 2014, April 3, 2014, June 5, 2014, October 1,
2014, December 31, 2014, March 27, 2015, and on June 8, 2015, after which this Court
issued the present Custody Order from which Father now appeals.
2
On the first day of the hearings on November 6, 2013, arrangements were made for
four sign-language interpreters to be present in the courtroom as both parties are hearing-
impaired. The sign language interpreters for both parties attended all eight (8) hearings.
Jennifer x:.. · of Conshohocken, Pennsylvania, testified that she was a friend of
Father through her husband, Christopher · "':/;..-. She initially met Mother at a social
gathering at her apartment on July 22, 2012. Mother confided to Ms. -'F..~ . that she was
"in love" with Father, but troubled by the fact that he had been previously married and had
"loved someone else." Ms. l:. , stated that Mother wanted Father to "buy her a ring,"
"marry her" and "buy a house" so she would no longer have to live with her parents. When
a pregnancy test later confirmed that Mother was pregnant, Ms.' ~. testified that Mother
was no longer friendly toward her.
Christopher' 1:,.. · who is also hearing-impaired, lives with his wife Jennifer. He
testified that he met Father first and then met Mother. He stated that Mother and Father
were in a "relationship," and that Mother was anxious to move into a house with Father
because she did not want to live with her parents who she claimed were "abusive" toward
her. Mr. :C.. · .testified that he had videotaped Father feeding J.Z. two or three times, and
that the baby "took a bottle" from Father. After the birth of J.Z., he stated that Father texted
Mother and visited her home on multiple occasions for the sole purpose of visiting the
child, and not for the purpose of harassing Mother as she claimed.
Mr. F· testified that Father informed him that after Mother and Father ended
their relationship prior to the birth of the baby, Mother had no contact with Father. He also
noted that although Father had wanted to participate in the birth of the child, Mother did
not permit his participation, and Father did not see the child until the child was at least five
to six weeks old, and only after he had obtained the Emergency Court Order in
Montgomery County on June 11, 2013. He also testified that Mother informed Father that
he was not the biological father of the child.
3
At the next scheduled hearing on February 12, 2014, this Court initially held
"Father's Petition for Name Change of Minor Infant," filed on the same day, in abeyance
pending further proceedings.
Father testified that he lives iri Jenkintown, Pennsylvania and is employed by the
U.S. Navy Yard in Northeast Philadelphia. He met Mother at the end of 2012, and after
one month they became involved in an "intimate" relationship. Mother told Father that she
was using "birth control." Mother and Father subsequently began residing together in
Hatboro, Pennsylvania. Mother then called Father at work one day and asked him to "come
home." Upon his arrival home, Mother handed him a card, stating "Congratulations to the
Father-to-be," with a baby pacifier attached to the card.
Father testified he began to look at real estate and apartments, but he and Mother
agreed that they could not afford either at that time. Mother told Father that she afc:wra"ilt
them to live with her parents because her parents and her brother were physically and
emotionally abusive to her.
Father testified that prior to the child's birth, he purchased a crib, clothes, a car seat
and toys, and attended pre-natal physician's appointments with Mother. He said that after
their relationship ended, Mother mentioned to Father that she considered having an
abortion.
The child was born on April :, 2013. Father testified that he learned of the child's
birth via "social media' when he saw a picture of his son on Facebook. Father said he went
with his stepmother to visit his son at Mother's home on April 28, 2013, but was told by
Mother's father, ._ W. ':c... · 1, that Mother did not want him to visit with his son. In
June, 2013, Father said Mother informed him that he was not the biological father of the
child and she wanted him to undergo a paternity test.
Father testified that a Temporary Custody Order was entered by the Montgomery
County Court of Common Pleas on June 11, 2013, and the case was thereafter transferred
4
to Bucks County. Father said he underwent the paternity test and later saw his son for the
first time on June 17, 2013, when the child was two (2) months old.
Father testified that he works four ten-hour days a week and wanted to see his son
on the weekends, but Mother had refused all previous requests for weekend visitation.
Father eventually had his first weekend visit with J.Z. for only one-and-half hours, on July
2, 2013, at the Montgomeryville Mall. Mother and Father's mother were present during
that visit.
Father testified that Mother did not inform him about any of J.Z. 's doctor's
appointments. He said that although Mother had accused him of causing J.Z. 's "diaper
rash," Father did not have custody of J.Z. when the rash occurred. He said that on
September 9, 2013, Mother accused Father of not feeding J.Z. during a four-and-a-half
hour weekend visit with the child, which she claimed resulted in the child's "dehydration."
The physician's notes that were admitted as Exhibit F-8, however, did not confirm this
complaint, and indicated that it was not supported by any medical evidence. Father also
testified that Mother refused to provide him with J .z. 's Social Security number, denied his
request for a holiday and special events schedule, and would not advise him of J.Z.' s
medical appointments.
In addition, the Discharge Summary from Abington Hospital that was issued after
J .z.' s birth stated that Mother claimed that her "boyfriend [Father]was physically abusive"
and that hospital security had been notified. This, according to Father, was untrue. Father
also stated that Mother had refused permission for Father to have any overnight visitation
with J.Z.
According to Father, he has only had custody of J.Z. "2.54% of the time."
Father stated that Mother had told him that she had been physically abused by her
brother, - and she admitted to Father that her brother was an alcoholic. Father said
that Mother currently resides in the same house with bvofutV' who "yells," "threatens" and
0
5
"assaults" her. Father testified thad>yo.\'h(ris violent, "kicks doors and kicks walls," and has
been intoxicated on many prior occasions.
Father testified that Mother has called Father "stupid," "retarded" and "ugly" in the
presence of their son, and he is concerned that Mother's behavior will "poison" the child's
mind against him.
Father testified that through his employment with the U.S. Navy, he has full-time
daycare available that is provided on site. He also stated that if he is granted visitation or
custody, he would seek time off pursuant to the Family Medical Leave Act.
After considering Father's demonstrated ability to care for his son and the fact that
the acrimonious relationship existing between the parties was impeding Father's partial
custody of J.Z., this Court issued a Temporary Custody Order at the end of this second day
of testimony on February 12, 2014, in which we awarded Father partial custody of J.Z. on
Saturday and Sunday from 10:00 a.m. to 7:00 p.m. We also directed that Mother provide a
copy of the child's Social Security card to Father.
At the hearing of April 3, 2014, Father stated that Mother had told him on July 1,
2013 that "this is my baby and I'll do what I want," and she threatened to tell this Court
that he was physically abusive and mentally ill. Father stated that he did not receive a
legible copy of the child's Social Security card pursuant to the Temporary Custody Order,
but subsequently received a legible copy on March 14, 2014, two (2) months after our
Temporary Order was entered.
Upon consideration of Father's "Petition for a Name Change," Father testified that
he requested a name change for J.Z. because of his concern that Mother would "poison the
child's mind" by telling the child that he didn't have to listen to his father because "you
have my last name."
6
Photographs were then introduced of Father's six-bedroom house where he lives
with his stepmother. These photographs clearly showed that many items were piled on the
porch of this home.
Father alleged that Mother was a "racist," and he again testified that she claimed
she had been abused by her brother and emotionally abused by her mother. According to
Father, Mother had requested that he take a paternity test for the only purpose of delaying
his ultimate custody time with the child.
Father testified that he had suggested to Mother that she should pay rent to her
parents in order to gain increased benefits for the child, such as Supplemental Social
Security benefits.
Father related that in February of 2014, Mother reported to him that the child had a
fever, and sent him a text photo of a thermometer which had a reading of 100.5 degrees.
Mother then apparently refused to allow Father visitation with J .z. because the child was
allegedly sleeping.
At the next hearing of June 5, 2014, Father testified that in October or November
of 2013, J.Z. began eating "solid foods" and was no longer breastfeeding. He testified that
Mother has called the police five (5) times since the child was born. He related that after
Mother informed him that she had taken the child to the Emergency Room at Grandview
Hospital, his request to obtain copies of his son's medical records was denied by the
hospital because Mother had not listed him as the "Father" on the hospital's medical
records for J .Z.
Father related that Mother had sent him an email informing him that she was going
to visit her family in Cape May, New Jersey with the child, and that they would be staying
in her family's "trailer." Father complained that he would not see his son and he expressed
concerns about the health and safety conditions in and around the trailer. Father also alleged
that Mother's home was unsafe, and complained of various hazardous conditions, such as
7
the lack of sturdy baby gates and safety latches on doors, and the presence of "loose pallets"
outside the home and a "combustion stove" that had no chimney.
Father testified that he had requested custody of J.Z. in order to bring him to his
family's reunion in New York State, but Mother denied his request, however, when Mother
requested a "switch" in custodial time so that she could spend Mother's Day with the child,
Father also refused her request.
On cross-examination of Father concerning the rash that J.Z. had on May 17, 2014,
Father testified that J.Z. had an allergic reaction to Amoxicillin and he therefore treated the
rash with hydrocortisone cream. Mother, however, expressed concern that hydrocortisone
was not recommended for use on children under the age of two. Testimony then concluded
for the day and the hearing was continued.
Prior to the next scheduled hearing date, Father filed an Emergency Petition for
Interim Primary Custody on September 15, 2014, alleging that while in Mother's custody,
J.Z. had "suffered a severe head injury resulting in stitches and a permanent scar to his
forehead." This Petition alleged several previous head injuries as well as unsafe conditions
in Mother's home, and noted that this filing was motivated by this Court's cautionary
instructions issued after the June 5, 2014 hearing, when we reinstated Father's overnight
visitation and warned that any injury that occurs to the child because of existing hazards in
either home would be an important factor in our ultimate decision.
On September 25, 2014, Mother filed her response to Father's Petition, denying all
of his substantive allegations.
At the continuation of this hearing on October 1, 2014, Father presented a note from
the pediatrician that indicated it was permissible to treat J.Z.'s rash with hydrocortisone. It
was noted that an argument had occurred between Mother and Father at the pediatrician's
office because Mother did not want Father to remain in the doctor's office during J.Z. 's
examination.
8
Testimony was then presented concerning Father's Emergency Petition for Interim
Primary Custody. According to Father, he filed the Petition because of the occurrence of
multiple head injuries to the child while in Mother's custody. Father stated that Mother told
him that J.Z. had been running and hit his head against a wall on June 17, 2014. Father
stated that J.Z. experienced another head injury on September 4, 2014. Mother explained
that J.Z. had been "looking at frogs" and fell, bruising his head, but appeared to be in no
distress after that accident. Father insisted on taking the child to the Abington Hospital
Emergency Room. It was subsequently determined that the child had a "superficial
abrasion" and did not suffer a concussion.
Father also questioned whether Mother and J.Z. had been in an automobile accident
because he observed "dents" in Mother's car. It was determined that there had been no
automobile accident.
After the end of testimony at this hearing, Mother requested that she be permitted
to take J.Z. to her sister's wedding in Wildwood, New Jersey, from Friday, October 3, 2014
to Monday, October 6, 2014. Her sister is J.Z.'s godmother. Father objected to this request
unless he received "make-up time" for the loss of "his weekend." As a result, this Court
issued an order granting Mother's request to take J.Z. to the wedding in New Jersey but
granting Father three days of "make-up" custody time.
On December 31, 2014. . N\ · N\ • who is Father's father and J .Z' s paternal
grandfather, testified that he lives with his ex-wife,: -0. w. ~. and his adult step
and foster children in Hatboro, Pennsylvania. M. N\,1 testified that in the summer
of 2012, Mother had been living with them because she did not "get along" with her own
family and did not like them. Mother told N\,l'-1\· :,that she had been sexually abused
by a relative.
9
According to M.M. ), Mother was "ecstatic" about her pregnancy, and in 2012,
when Mother accompanied Father to a wedding for one of Father's relatives in Rhode
Island, she showed photographs of her "ultrasound" to the wedding guests.
M, r«. testified that his son had confided to him that he wanted to end his
relationship with Mother and that they eventually broke up after the funeral of Father's
stepbrother, who had committed suicide. After their relationship ended, M,M,
stated that Mother did not inform Father of any of her obstetrician's appointments, and that
Mother had contacted 1. f'v\.fv\, 'S ex-wife, J). W, \ to request that she be
present with her at the time of delivery.
According to M, N\. 1 _ Father only saw J.Z. during restricted visits that were
usually 1 ~ to 2 hours in duration at the Montgomeryville Mall. He said that Father fed the
baby at the Food Court, and that Mother would "yell and scream" and the child would
"wince.": M, M.. testified that Father only saw J.Z. for two to three hours at Christmas
time in 2013, and that Mother controls the visitation schedule.
MOtt\Q'...'("_ \ testified that she was using birth control when she met Father, and
that she had engaged in sexual relations with two other men at or near the time she was
having sexual relations with Father. She testified that she and Father "broke up" in
November of 2012 when Father sent her a "text message." She admitted informing Father
that the baby may not be his and that Father was angry and enraged at this revelation. She
admitted that when Father sent a text message concerning the pregnancy, she called the
police to report that he was harassing her.
Mother admitted that she would not allow Father to see the baby after he was born
until the Montgomery County Court Order of June 11, 2013 was issued. She stated that she
had prevented Father from seeing the child because she wanted a paternity test, yet she
nevertheless filed for child support from Father. Mother stated that Father's first visit with
J.Z. occurred on June 23, 2013, and the first visit Father had with J.Z. alone occurred on
10
July 29) 2013. She stated that all of Father's visits with J.Z., prior to September 2013)
occurred at the Montgomeryville Mall and lasted for approximately 1 12 hours.
Mother acknowledged telling the pediatrician that J.Z. developed a rash while at
Father's home but that Father did not have J .z. at his house until after the rash had occurred.
Mother admitted calling the police on September 9, 2013) when Father had custody
of J.Z. for 4 hours, and alleging that the child was "dehydrated." She also admitted that she
denied Father's scheduled visitation with J.Z. on January 7, 2014 because the "weather was
cold."
On March 24, 2015, Father filed a "Petition for Contempt of Custody Orders,"
alleging that Mother had on several occasions prevented Father's visitation with J.Z. in
defiance of this Court's Interim Custody Orders of February 12 and April 3, 2014.
On March 27, 2015 Mother testified that on March 6, 2015, J.Z. had been running
and "bumped his head" and she took him to the hospital. She also acknowledged that a
second head injury occurred on March 13, 2015, and that J.Z. was taken to Grandview
Hospital where he spent 2 12 hours in the Emergency Room.
Mother admitted that she made an appointment with an audiologist for an "early
intervention assessment" at the Penn Foundation without notifying Father. She stated that
she told the doctors that J.Z. was not verbal and "not speaking words." After an evaluation
and assessment, however, it was determined that J.Z. was meeting all of his milestones and
had "no developmental delays," and therefore further treatment was not recommended.
Mother testified that she disputed Father's allegation that J.Z. had had "69 doctor's
visits" between April 27, 2013 and March 20, 2015. She stated that many of those 69 visits
were not actual office visits but were only telephone calls to the doctor's office, and this
was confirmed by a review of J .Z. 's medical records.
11
In response to Father's allegations in his Petition for Contempt, Mother agreed that
she had retained custody of J.Z. all day on Sunday, November 30, 2014, and did not drop
him off at Father's home, but she stated that she had an agreement with Father to modify
the Sunday visit and had agreed to provide "make-up time" for Father.
Mother testified correctly that none of the Interim Custody orders that were entered
contained provisions for "make-up time" and there was no set holiday schedule. As a result,
neither Mother nor Father were required to provide "make-up time." Mother also
acknowledged that she had refused to deliver J.Z. to Father for his partial custody visitation
on one day because of a heavy snowstorm. We noted parenthetically that Father responded
that "the roads are not that bad."
Mother then stated that as of today, in contrast to her previous behavior and conduct
towards Father, she would like to compromise, cooperate, and work together to co-parent
with Father.
This Court denied Father's Petition for Contempt, and the hearing was continued.
On December 31, 2014, Mother testified under cross-examination that she attends
classes for 3 hours a day at DeSales University and expects to graduate in June 2015 with
a degree in psychology. She wants to pursue a Master's Degree and assist the hearing-
impaired community. At a later hearing she produced her diploma from DeSales University
reflecting that she had earned her Bachelor's Degree.
Mother testified that when she learned she was pregnant, she took birthing, infant
message and breastfeeding classes. She said she "believed" Father was J.Z.'s biological
father until the ultrasound indicated that the fetus was "larger" than expected during her
first obstetrician's visit. As a result, Mother said she was not sure Father was the actual
father. When she told him he may not be the father, she said he was upset and angry.
12
Mother said they discussed living together, but told Father she did not want to live
in his house in Jenkintown because there were three dogs present, one of which was
incontinent, the house smelled, and Father' stepfather, who was an alleged drug user, was
also living there.
Mother testified that she was "high risk" pregnancy because there was a family
history of miscarriages. She testified that she had filed a Petition to Establish Paternity on
June 11, 2013, but then withdrew this Petition. She then stated that once Father was
declared to be J.Z. 's father, she contacted him to see J.Z.
On June 8, 2015, we addressed Mother's Motion for a Protective Order to quash
the subpoena to Abington Hospital Father had filed to obtain all of the medical files,
including all test results and mental health records for Mother. Father argued that Mother's
medical records would show that Mother had lied about her due date and assertions that
Father was not the biological father of J.Z. After determining that the requested subpoena
was overbroad and sought material that was not relevant, this Court granted Mother's
Motion for a Protective Order and quashed the subpoena.
Mother then testified that she had selected Highpoint Pediatric Dentistry in
Chalfont for J.Z. and notified Father of her decision via e-mail. She stated that 2 or 3 weeks
later, Father responded by suggesting a dentist located in Warrington because it was
"equidistant" from their homes. Mother replied that Highpoint had multiple dentists and
24 hour emergency care, whereas Warrington only had one dentist. Mother also testified
that Father does not attend J.Z.'s "sick visits."
This Court also observed that in one exhibit introduced at the hearing, Father stated
in a text message to Mother that "[J.Z.'s] best interest is the same as mine."
Mother then testified about her activities with J.Z., including participation in
swimming, art and gymnastics on Mondays, Wednesdays and Fridays at the YMCA, trips
to Sesame Place and the zoo, and her use of "flashcards" with J .z.
13
Mother stated that she had provided Father additional time with J.Z. on multiple
occasions. She sought primary custody of J.Z., shared holidays and co-parenting
counseling. She also testified that her mother assists in providing daycare and babysitting
for J.Z.
At the conclusion of this hearing, we issued our Custody order which awarded
primary physical custody of J.Z. to Mother and partial custody to Father on the first, third
and fifth weekends as they occur from Friday at 6 p.m. until Sunday at 6 p.m. Father was
also provided custody of J.Z. on Presidents Day, Columbus Day and Veterans Day, which
occur on Monday, and on Independence Day, Labor Day, Halloween Eve, and
Thanksgiving Day and Christmas Day in odd-numbered years.
Each party was also to enjoy, with 30 days' notice to the other party, two (2)
nonconsecutive weeks of vacation. The parties were further directed to choose a co-parent
counselor and attend and share the costs of a minimum of six co-parenting sessions. Mother
was also directed to notify Father that she has affirmatively named Father as the first
contact for all medical providers, and to place Father's name upon the child's birth
certificate.
We also denied Father's Petition for a Name Change. While Father was insistent
that the child's surname should either be his or at least hyphenated, we observed that the
law was not settled with regard to this issue, and that an unmarried woman has the right to
choose the name of the child. As Father had left Mother prior to the birth of J.Z. and the
child had therefore been born out of wedlock, it was Mother's prerogative to choose J .z.' s
surname.
On July 7, 2015, Father filed his Notice of Appeal and his Concise Statement of
Errors Complained of on Appeal. In his Statement, he complains of the following verbatim:
14
1. Whether the lower Court abused its discretion or committed an error of
law when it awarded MoT\1c~ . primary physical custody
based upon unreasonable conclusions in light of the trial Court's sustainable
findings of fact.
2. The lower Court's award of primary physical custody to: M``"- was
not supported by the evidence presented under the custody factors
enumerated in 23 Pa.C.S. § 5328(a), the majority of which weighed in favor
of Appellant/Father, and was thus unreasonable in light of the lower Court's
sustainable findings.
3. Whether the lower Court's Order awarding primary physical custody to
Mo1'~t:'2-Was unreasonable in light of the evidence presented on the record
and the circumstances of this case because, when considering the best
interests of the child, the lower Court failed to give appropriate weight to
w'an{€ ~s ongoing attempts to deprive the minor child of Father's care and
affection, which is problematic in light of the lower Court's simultaneous
conclusion that ~011-85 A.3d 1058, 1061 (Pa.Super. 2014) (citing V.B. v. JE.B., 55 A.3d 1193,
1197 (Pa.Super. 2012).
It is well-established, pursuant to the provisions of the child custody statute, that
"[u]pon petition, a court may modify a custody order to serve the best interest of the child."
23 Pa.C.S.A. § 5338. Section 5328 of the child custody statute, which "establishes what
the court shall consider in determining a child's best interest for purposes of making an
award of custody," M 0. v. J TR., 85 A.3d at 1062, provides as follows:
23 Pa.C.S.A. § 5328. Factors to consider when awarding custody
(a) Factors.--In ordering any form of custody, the court shall determine the
best interest of the child by considering all relevant factors, giving weighted
consideration to those factors which affect the safety of the child, including
the following:
(1) Which party is more likely to encourage and permit frequent and
continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the
party's household, whether there is a continued risk of harm to the child or
an abused party and which party can better provide adequate physical
safeguards and supervision of the child.
***
(3) The parental duties performed by each party on behalf of the child.
16
(4) The need for stability and continuity in the child's education, family life
and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the child's maturity
and judgment.
(8) The attempts of a parent to turn the child against the other parent, except
in cases of domestic violence where reasonable safety measures are
necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and
nurturing relationship with the child adequate for the child's emotional
needs.
(10) Which party is more likely to attend to the daily physical, emotional,
developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to make
appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability
of the parties to cooperate with one another. A party's effort to protect a
child from abuse by another party is not evidence of unwillingness or
inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party's
household.
(15) The mental and physical condition of a party or member of a party's
household.
(16) Any other relevant factor.
(b) Gender neutral.-In making a determination under subsection (a), no
party shall receive preference based upon gender in any award granted
under this chapter.
17
A review of the above-enumerated factors reveals that Father's contention that he
should have been awarded primary physical custody is based upon only a few of the factors,
including which party is more likely to encourage and permit frequent and continuing
contact between the child and the other parent, and a consideration of whether there is a
continued risk of harm to the child, and which party can better provide adequate physical
safeguards and supervision of the child. While we found Father's desire to nurture and care
for his child commendable, our weighted evaluation of all of the relevant factors led this
Court to conclude that it was in J.Z. 's best interests to direct that Father immediately
receive increased partial custody of his son while primary custody was to remain with
Mother.
Father presented credible evidence to support his claims that Mother had withheld
custody of J .z. pursuant to the original Custody Order that had been entered on June 11,
2013. The evidence presented at the first two (2) hearings compelled this Court to conclude
that Mother had impermissibly interfered with Father's custodial time, and as a result we
entered an Interim Order awarding Father partial custody of J.Z. on Saturday and Sunday
from 10:00 a.m. to 7:00 p.m. in order to immediately increase his participation in J.Z. 's life
and development. It was evident, however, that as these hearings progressed, Mother
realized that it was important for Father to become an integral part of J.Z. 's life, as Father's
partial custody of J.Z. was increasing.
We also considered the evidence in which Father alleged that Mother's residence
was an unsafe environment and posed a continuing risk of harm to J.Z. We determined,
however, that while Father's allegations concerning J.Z. 's alleged head injuries were
disconcerting and worthy of consideration, they were not completely credible, and we were
not persuaded that Mother's residence posed an unreasonable continuing risk of harm. We
also noted that throughout the course of these hearings, both parties continually complained
about "unsafe" conditions at each other's homes and that the parties were permitted by
this Court to conduct professional home inspections of each other's residences.
18
Some of the factors, such as the child's expressed preferences, and the child's
sibling relationship were clearly not relevant in this case.
A careful consideration of the remaining factors convinced us that, while both
parents could provide a loving and nurturing environment for the child, and both parties
are more than capable of attending to the daily physical, emotional and developmental
needs of J.Z., his best interests would be served by retaining primary custody with Mother
while simultaneously greatly increasing Father's partial custody.
Mother has been vindictive and mean-spirited towards Father, and her animosity
towards him for failing to marry her is palpable, however, Mother has also been a dutiful
and caring mother, and she has had the primary responsibility for J.Z. 'scare. While Father
has stated his desire to assume those responsibilities, he is employed full-time which would
necessitate his use of daycare services.
Mother, on the other hand, has provided, along with her mother, full-time care for
J.Z., and we determined that it would be preferable for J.Z.'s well-being to maintain that
situation rather than uproot him and have him sent to a completely new and unfamiliar
daycare environment. J.Z. 's safety, health and welfare were clearly not at risk, and a change
in primary custody would not serve to further the stability and continuity in the child's
education, family life and community life.
We found no abuse committed by either party. Both parents indicated that they had
extended family in the region. Mother's mother, however, has been involved in the care of
J.Z. and is apparently readily available to assist in providing continuing child care when
needed. Both parties alleged the presence of drug or alcohol consumption by members of
the other party's household, however, the testimony did not convince us that J.Z. would be
exposed to any immediate and greater danger or harm in one household as compared with
the other.
19
Finally, in considering the level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another, and the attempts of one parent to
tum the child against the other parent, we observed that, while Mother had clearly behaved
detrimentally and resisted shared custody in the past, Father was also extremely rigid and
inflexible in his approach to co-parenting. For example, when Mother expressed concern
over the child's exposure and susceptibility to certain illnesses as a result of his lowered
immune system during a custody transfer, Father responded that "[J.z.' s] best interest is
the same as mine."
Both parties demonstrated a penchant for selfishly placing their own concerns
above those of the child, and at times allowed their personal animosity toward each other
to be contrary to J.Z. 's best interests.
As a consequence, we determined that a significant change in J.Z.' primary custody
was not warranted by the circumstances and would not be in his best interests. We also
concluded, however, that Father should have an important and pervasive presence in the
child's life, and fashioned the custody Order accordingly.
Father has also alleged that this Court erred in denying his Petition for a Name
Change.
28 Pa. Code § 1.6, Registration of the child of an unmarried woman, states:
The child of an unmarried woman may be registered with any surname
requested by the mother. If no other surname is so requested, the child shall
be registered with the mother's surname.
28 Pa. Code § 1.6.
It has been established, however, that if a disagreement over the child's name exists,
the best interests of the child standard applies, not 28 Pa. Code § 1.6, because that statute
impermissibly distinguishes between unwed mothers and unwed fathers in violation of the
20
Equal Rights Amendment, Article 1, § 28, to the Pennsylvania Constitution. In re Mull, 18
D. & C.3d 290, 294 (C.P. Berks 1981).
The Superior Court of Pennsylvania subsequently stated that "[t]he child's best
interests unquestionably must control [the trial court's discretion] in a proceeding to change
a minor's surname." In re C.R.C., 819 A.2d 558, 560-61 (Pa.Super. 2003) (citing In Re:
Schidlmeier, 496 A.2d 1249, 1253 (Pa.Super. 1985).
. . . Further, the party petitioning for the minor child's change of name has
the burden of coming forward with evidence that the name change requested
would be in the child's best interest, and that where a petition to change a
child's name is contested, the court must carefully evaluate all of the
relevant factual circumstances to determine if the petitioning parent has
established that the change is in the child's best interest. See In Re:
Montenegro, 365 Pa.Super. 98, 528 A.2d 1381, 1382-1383 (1987) (citing
Schidlmeier, 496 A.2d at 1253). In that evaluation, neither parent is to be
accorded a presumption. Id., 528 A.2d at 1382-1383.
Our Supreme Court adopted the "best interests of the child" standard of
review in appeals from the grant of a petition for change of name of a minor
child by a non-custodial parent in In Re: Grimes, 530 Pa. 388, 609 A.2d 158
(1992). In Grimes, our Supreme Court noted:
Specific guidelines [for a child's best interests] are difficult to
establish, for the circumstances in each case will be unique, as each
child has individual physical, intellectual, moral, social and spiritual
needs. However, general considerations should include the
naturalbonds between parent and child, the social stigma or
respect afforded a particularname within the community, and,
where the child is of sufficient age, whether the child
intellectually and rationally understands the significance of
changing his or her name.
Grimes, at 394, 609 A.2d at 161 (citations and footnotes omitted) (emphasis
added).
We described the "best interest of the child standard" in Sawko v. Sawka,
425 Pa.Super. 450, 625 A.2d 692 (1993), as follows:
The "best interests [ of the child]" standard, decided on a case-by-
case basis, considers all factors which legitimately have an effect
upon the child's physical, intellectual, moral and spiritual well-
21
being. On appeal, our scope of review is broad in that we are not
bound by deductions and inferences drawn by the trial court from
the facts found, nor are we required to accept findings which are
wholly without support in the record. On the other hand, our broad
scope of review does not authorize us to nullify the fact-finding
function of the trial court in order to substitute our judgment for that
of the trial court. Rather, we are bound by findings supported in the
record, and may reject conclusions drawn by the trial court only if
they involve an error of law, or are unreasonable in light of the
sustainable findings of the trial court.
Sawka, 625 A.2d at 693.
In re C.R.C., 819 A.2d at 560-61.
In re C.R. C. is remarkably similar to the case at hand. There, the Court held that
the mother's interference with the father's relationship with the child, who had been born
out of wedlock, was not sufficient "by itself to render the trial court's grant of Father's
petition proper." The Court held that "because the trial court found the bonds between
Father and [the child] had not yet formed because of Mother's interference in their
relationship," it was "impossible for Father to show that a bond existed between he and
[the child] such that it would be proper for the trial court to change [the child's] surname
to Father's surname." Id. at 562. The Court also cited Schidlmeier, which had previously
held that a "trial court's rationale that the tradition and custom of patrilineal naming did
not provide a sufficient rationale to sustain a conclusion that the name change was in [the
child's] best interests," Id., and concluded that
we are unclear how a change in [the child's] surname would serve to foster
a bond between Father and [the child]. Father cannot argue Mother would
provide access to [the child] as a result of the name change, nor does Father
present evidence that his name is held in higher esteem in the community.
If it is Father's intention to forge a strong and nurturing relationship with
[the child], Father is able to seek legal redress for visitation and custodial
rights. We are unwilling to find that [the child's] name alone will provide a
basis for a relationship with Father, nor are we willing to accept the trial
court's speculative conclusion that [the child's] relationship with his Father,
when developed, will suffer as a result of their different surnames.
Accordingly, after a thorough review of the facts, we are constrained to
conclude that the trial court abused its discretion when it found in favor of
Father. Therefore, its order granting Father's petition is without support and
may not stand.
22
Id. at 562-563.
In the instant matter, we addressed the "name change" issue in our Order of June
8, 2015, when we stated the following:
The name change. The law is certainly not settled with regard to that issue.
Usually an unmarried woman has the right to choose the name of the child.
Any surname requested by the mother is the surname for the child. And the
law presumes that the child shall be, as they say, registered with that name.
Father says there's a disagreement. His name should either be M, or
hyphenated. I don't see that as critical. This child was born out of wedlock.
He is. Xe.. · -~-.ldon't believe it's in his best interests-to change his
name. If Mother wishes to hyphenate the name, that's fine, but we won't
compel her to do so.
Order, June 8, 2015, pp. 39-40.
Father, who has the burden of providing evidence that the name change requested
would be in the child's best interest, presented no evidence that his request to change J.Z.'s
surname to his was in the child's best interests, and we therefore denied his Petition.
23