M.S. v. V.M.F.

J-A05015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
V.M.F. :
:
Appellee : No. 1339 WDA 2016
Appeal from the Order August 8, 2016
In the Court of Common Pleas of Blair County
Civil Division at No(s): 2006 GN 2267
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 3, 2017
Appellant, M.S. (“Father”), appeals from the order entered in the Blair
County Court of Common Pleas, which granted primary physical custody of
the parties’ minor child, A.M.S. (“Child”), to Appellee, V.M.F. (“Mother”),
subject to periods of partial physical custody by Father. We affirm.
In its opinions, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Father raises two issues for our review:
WHETHER THE [TRIAL] COURT ERRED AND ABUSED ITS
DISCRETION IN TRANSFERRING RESIDENTIAL CUSTODY
OF…CHILD TO…MOTHER, WHEREIN AN ANALYSIS AND
APPLICATION OF THE FACTORS TO BE CONSIDERED,
PURSUANT TO 23 PA.C.S.A. § 5328, FAVORS…FATHER
AND/OR A SHARED CUSTODY ARRANGEMENT, AND
THEREBY THE [TRIAL] COURT SUBSTANTIALLY LIMITED
FATHER’S PERIODS OF CUSTODY, THEREBY
J-A05015-17
DEPRIVING…CHILD OF HIS FATHER’S CARE FOR
EXTENDED PERIODS DURING THE SCHOOL WEEK, WHEN
THE PARTIES HAVE EQUALLY SHARED CUSTODY
OF…CHILD SINCE 2006?
WHETHER THE [TRIAL] COURT ERRED AND ABUSED ITS
DISCRETION IN FAILING TO CONSIDER CHILD’S
PREFERENCE, WHEREIN HE CONTINUED TO DESIRE TO
HAVE AN EQUALLY SHARED CUSTODY ARRANGEMENT TO
REMAIN THE SAME, ON A WEEK ON/WEEK OFF BASIS,
WHEREIN THE PARTIES WERE BOTH ACTIVELY INVOLVED
IN CHILD’S LIFE AND BOTH EQUALLY CAPABLE OF
PROVIDING FOR HIS NEEDS?
(Father’s Brief at 4).
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.
-2-
J-A05015-17
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
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
-3-
J-A05015-17
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.
23 Pa.C.S.A. § 5328(a). “The 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). 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
-4-
J-A05015-17
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 Hiram A.
Carpenter, III, we conclude Father’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed August 8, 2016, at 9-22)
(examining each relevant factor under Section 5328(a); concluding award of
primary physical custody to Mother as ordered is in Child’s best interests).
Accordingly, we affirm based on the trial court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2017
-5-
Circulated 02/22/2017 04:47 PM
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
M.~.
Plaintiff
v. :NO. 2006 GN 2267
.'
)
Defendant
HONORABLE HIRAM A. CARPENTER, III SENIOR JUDGE ~ ~
n1 _:::: C) l":-'.J
:,s (") c, ... :r:-:- r···~
.. T~ .. , ..
TERRESSA GEORGE, ESQUIRE COUNSEL FOR PLAL~TIF~
. /i ~!:.: >/ _.;. : ,_
w
MICHAEL COHEN, ESQUIRE COUNSEL FOR DEFENDAN':E!='
-o
_:j
OPINION AND ORDER f'...)
0)
This matter comes before the Court for resolution of all
issues relating to the custody of these parents' only child,
A . ./v\.~. , born May 2004. A hearing was held to a
conclusion on December 30, 2013. At that hearing, both parents
testified to their positions regarding the primary custody of
A,M.~ .. It was agreed A,A.~. would be interviewed by the Court
which interview occurred on December 31, 2013. The record is
presently closed.
At hearing, we heard the testimony of both parents as well as
ESt"e.p,..,..tStL-e,r- ; (the Father's wife since February 2, 2013); Jessica
(Mother of Noah, a close friend of A.~.~'~ ); and D~borah
(a long time friend of the Mother). Finally, as noted on
the day following our evidentiary hearing we interviewed' A.M,$.
1
Historically, the parties' custodial arrangement is unusual
in our experience. Both parents agree their relationship never
went beyond dating prior to. A,M,~,~ conception. The Mother was
with the Father during a relatively short period of time while she
endured a separation from a long term relationship with another
man. This developed into a situation (for different reasons
according to each parent) where the Father did not know A,M,~. was
"his" until a significant period of time after A.A.~,~ birth (the
Mother estimates this as more than two years while the Father
estimates it as more than one year). In any event, the Father
immediately committed to A,M.~. upon learning he had a son. This
quickly evolved by early 2006 into essentially a fifty-fifty
custody arrangement. That fifty-fifty relationship has continued
in various forms through our December 30, 2013 hearing.
Presently, the Mother comes before the Court offering her
belief the time has come to end the fifty-fifty relationship which
has existed these many years. In place of the existing fifty-
fifty relationship, the Mother believes the custody arrangement
should be that she has primary residential custody with the Father
maintaining substantial contact with A.M.s. through a combination
of his coaching at the school and a schedule which would give the
Father two days (with overnights) centered around his work
schedule (rotating weekends involving all days of the week). If
2
this were accomplished, the Mother believes the present
corrununication difficulties which she is experiencing with the
Father since their last agreed order in November 2012 and the
Father's marriage to °S~E>~+~r- in February 2013 would likely
resolve. The Mother believes these issues of communication and
control suggest the time to end the fifty-fifty relationship (in
favor of the essentially five day/two day rotation which she
suggests) is now.
In response, the Father acknowledges he also would like to
achieve primary custody of A.~.~ However, he suggests the
fifty-fifty relationship which has been the parents' history
should continue for at least some period of time into the future
as consistent with A.M.~'S best interest. In that regard, he
suggests to the Court that an alternating three/four, four/three
arrangement (again geared to his work regarding his days) might
solve the parties' existing communication and control issues by
allowing A ,.M,"':), 'longer periods in each household. Recently, the
parties have been exchanging A.M.~ on practically a daily b~sis
under their present fifty-fifty arrangement so daily transfers are
more the norm than the exception. The Father believes fewer.
transfers would aid the parties and benefit A.M.S,. The Father
asks that if the Court believes a change is indicated presently he
should be the primary residential custodian with the Mother
3
liberally involved. Essentially, this sets out the parties'
positions.
As always, our paramount concern in a case whether it
involves custody or visitation is the best interest and permanent
welfare of the children. Commonwealth ex rel Pierce v. Pierce,
493 Pa. 292, 426 A. 2d 555 (1981). All other considerations are
deemed subordinate to the child's physical, intellectual, moral
and spiritual well being. In the interest of Tremayne Quame
Idress R., 429 A.2d 40, 43 (1981). Parents do not have a property
right in their children. Whatever claim they may make for either
custody or visitation rights is to be tested by what is in the
best interest of the children. See generally Commonwealth ex rel
Children's Aid Society v. Gard, 66 A.2..d 300 (1949). A custody
decree is not meant to punish a parent or anyone else. Its only
purpose is to help the child. In Re: Custody of Temos, 450 A.2d
111 (1982). The clear trend has been to abolish presumptions in
custody disputes. In children custody cases, the Court must
continually hew to the polestar of a child's best interest
eschewing presumption and surmise. Morris v. Morris, 412 A.2d
139, 141 (1979). Th~ Court should avoid mechanical determinations
and focus its analysis on a close scrutiny of all particular facts
relevant to determining the child's best interest. In Re: Custody
of Hernandez, 376 A.2d 648, 653 (1977). Further, the ability to
4
care for a child is to be determined as of the time of the custody
hearing, not as of an earlier time. In Custody of Frank, 423 A.2d
1229 (1980). Decisions must be made on the basis of current facts
and not the past conduct of the parties. In Re: Leskovich, 385
A.2d 373 (1978). The primary concern in custody matters lies not
with the past but with the present and future. Hooks v. Ellerbe,
390 A.2d 791 (1978). Facts at the time of hearing are the
foundation for the determination of the Court. Augustine v.
Augustine, 3L~ A.2d 477 (1974). At hearing, each parent shares
the burden of proving by a preponderance of the evidence that an
award of custody to him or her would serve the best interest of·
the child. Ramos v. Rios, 378 A.2d 400 (1977). Continuity and
stability are important elements in a young child's emotional
development. Commonwealth ex rel Jordan v. Jordan, 448 A.2d 1113(1982}.
The principles enunciated above are time honored in
Pennsylvania law. More recently, however, as a result of the
Pennsylvania's adoption of the new Child Custody Act at 23
Pa.C.S.A. §5328(a), that act directs that when a party files a
petition for modification ot' a custody order, the trial court must
perform a "best interest of the child" analysis considering all of
the Section 5328(a) factors. Those factors are as follows:
1) Which party is more likely to encourage
and permit frequent and continuing contact
5
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 other parent, except in case 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 ability 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 of inability to cooperate with that
party.
6
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.
As the language of the Act suggests, these factors are not
the only factors a Court may consider. However, they are to be
included as part of the analysis.
DISCUSSION
At the outset of our discussion, and before entertaining the
statutory factors as the primary format for this Opinion and
Order, we acknowledge there is considerable logic to both parents'
positions.
As we discussed with the parents at our hearing, virtually
every fifty-fifty custody arrangement has a shelf life after which
it is no longer the best arrangement for a child. In this Court's
experience, the timing of the change from fifty-fifty to some
other arrangement usually occurs at three times in the life of a
child. The first is when the child commences school. When school
begins, often parents live too far apart and in different school
districts so it requires a change. A second "time" is during the
pendency of elementary school when the parents see changes in
themselves and their situations which cause them to conclude one
situation or the other is probably better for school and activity
7
purposes. Those few fifty-fifty relationships which survive
elementary school are probably most frequently altered when the
child {now a teenager) expresses a preference to the parents and
that either precipitates an agreement or brings them to court for
a determination which almost inevitably disrupts the fifty-fifty
custody arrangement.
This case fits none of those categories. In fact, A.M.~. is
doing well in school according to both of these parents. He is
described by both of them as active, athletic, and able to get
along in school, in his activities, and in both households. The
pressure which exists regarding the fifty-fifty custody
arrangement in terms of its appropriateness seems to center on the
inability of these parents (undoubtedly increasing in part because
of this custody litigation during the past year) to communicate
effectively regarding A.M.s. and to demonstrate the flexibility
which usually proves critical to parents attempting a fifty-fifty
·"'-
custody arrangement. We view the case as it was described by the
Father when he offered that "the problem with our fifty-fifty
relationship is not A.M.~. but rather us (the parentB)". We
believe the Father is correct.
That said, the positions of the parents come clearly into
focus as logical positions. The Mother does not see a bridge over
the current problems if the fifty-fifty arrangement is maintained.
8
Conversely, the Father believes the fifty-fifty arrangement
continues to be important to A,Mi~. and offers that longer periods
of shared custody (during the summer, for example, he offered one
week/one week as a better arrangement) to reduce tensions. If a
fifty-fifty is continued (although we acknowledge this is not the
Mother's primary position) the Mother seems to agree with the
Father that longer periods of custody would probably be
beneficial. This is consistent with her presentation if not her
exact words. Our issue involves whether the time to end the
fifty-fifty custody arrangement which has represented the norm in
this case is now, or whether that decision should be deferred as
not in A./Vi,"$,'~ best interest presently.
Unfortunately, in making this determination there are some
complicating factors. One factor is that A.M.~. has been drawn
into this. Part of the Mother's position involves a belief that
A.~.~. would prefer to reside with her. The Mother's household
includes the Mother's other two children (, , age
fifteen and d..o..\J\.jk+~,.. ., age nine} who are children to two
other fathers. Although each parent gives a differing version as
to who ~confronted" A.M.~. (with the other parent present) to ask
him to voice his choice to everyone, this child was put in that
situation. Faced with th1s, A.M.~. said nothing. This is hardly
surprising. In fact, we would have been shocked if he had done
9
otherwise under those circumstances. This meeting, however,
beyond dividing the Mother and Father further, apparently had some
effect on A.M.~, so that the Father (apparently at his ·own
election) placed A.M.~, in counseling with Peggy Nadenick about
four weeks ago. As we will discuss later in this Opinion, that
A.M, ~. is now in counseling is a considerable concern as we do not
know what is (or is not) involved. With this foundation, we turn
to the statutory factors as enunciated earlier in this Opinion at
set forth at 23 Pa.C.S.A. §5328(a) as the basis for further
discussion.
1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
We do not see this as a major issue in the case. These
parties were never married and their relationship was essentially
over by the time A.M..~. was born. However, they have (remarkably
in our view) successfully maintained a fifty-fifty relationship
for most of A./.t.~.'iS life. We have every confidence that either
of these parents would fulfill a court order as close to the
letter as humanly possible. In fact, they have both already done
so.
What is lacking in their relationship, and one of the core
reasons this hearing was probably necessary became more and more
apparent as we listened to the testimony of the parents. While
10
they have been willing to share A.~.~. and have each recognized
the importance of the other, they have lacked flexibility in
certain limited respects. Each of the parents recounted to us
individual events where they believe the other failed the test of
true cooperation. As two examples from the Mother's testimony,
she believes she has not been fully advised of certain medical
decisions which the Father has made relative to A.M.s.
Similarly, she was apparently "hurt" during a trip to the beach
when A.M.~. did not call her and she believed she had inadequate
information where A.M,1. would be. Conversely, the Father raised
an issue complaining that the Mother denied A.M.~. the opportunity
to be at his grandmother's (the Father's mother's) viewing.
These examples, which we would view generally in the context
of a custody litigation as minor obstacles, have become major
events for these parents. This is of great concern. Breakdowns
in communication and control issues are, in fact, contrary to the
letter and spirit that a fifty-fifty arrangement requires if it is
to go on into the future. Here we see evidence of that
deteriorating. Undoubtedly, this is part of the reason the Mother
brings her petition.
For his part, the Father conceded to the Court that he felt
in several of the instances which the Mother raised he probable
could (even should) have done better. This type of recognition on
11
the Father's part is hopeful in terms of the fifty-fifty
arrangement if we can fashion an arrangement which reduces the
tensions that are exacerbated presently by daily transfers.
Our issue is far more subtle than whether these parties would
follow a court order. We believe they can pass that test. The
greater question is whether these parents can achieve flexibility
and resolve communication and control issues sufficiently for the
fifty-fifty arrangement to go on much longer. For reasons which
we will state later in this Opinion we believe this can and should
be attempted in A.M,'$.'~ best interest.
2) The present and past abuse committed by a party or
member of the party's household, whether there is a continued risk
of harm to the child or an abused party and which party can better
provide adequate physical safeguards and supervision of the child.
Issues of abuse are not present in this case. There is no
allegation of abuse by anyone against anyone either past or
present. At most, the Mother is concerned about the Father's new
wife } as perhaps (although not intentionally) disturbing
the balance which has existed in the fifty-fifty arrangement.
This is a natural reaction (in our view) on the part of the Mother
to the introduction of another woman who is important to A.M.~.
Of course, the Father's new wife also provides physical safeguards
and supervision of the child with the Father. We believe progress
needs to be made in this area. However, we do not view that as
impossible. In fact, the flexibility already demonstrated by
12
these parents in reaching and maintaining a fifty-fifty
arrangement for many years where the Father did not even find out
about his child's birth until the child was more than a year old
(at least) is remarkable. We believe there is more capability
here to resolve things than the parties are inclined to admit in a
litigation.
3) The parental duties performed by each party on behalf of
the child.
Not surprisingly, this is a strength for both parties. Each
of the parents seems to have participated in all aspects of
A,.M,'$.\'S life. This has been true regardless of which parent has
been "dominant" in a particular area. For example, although the
Father has co.ached A. M.~. , the Mother attends the games and
participates in getting A.M.~ to his practices (even attending
them on occasion). This same sharing has occurred with respect to
school conferences and medical (notwithstanding the recent
complaints the Mother has made).
This particular strength - namely, the involvement of both
parents in "everything" gives us pause with respect to terminating
a fifty-fifty relationship which undoubtedly has contributed
mightily in allowing this to occur. At the very least, it
suggests we should not do so lightly unless we are well satisfied
this will be in A. M."'.:>`` best interest. We acknowledge a
disruption in the fifty-fifty relationship will inevitably change
13
the performance of parental duties where A.M,~. is concerned.
That said, we have confidence in each of these parents that the
duties will be performed.
4) The need for stability and continuity in the child's
education, family life and community life.
This is an important factor in the case from several
perspectives. On the one hand, it is clear A.~.~- has benefited
and thrived in a fifty-fifty environment. On the other hand, it
is clear that he does not have the maximum available stability and
continuity given the almost daily transfers. In the end, this is
a major problem for most children in a fifty-fifty relationship
and increasingly as a child moves toward the teen years and
adulthood so the child's own agenda becomes increasingly important
as a factor.
In considering this factor, we also acknowledge the parties'
fifty-fifty historical arrangement has not been truly consistent
either. The parents have at various times done alternating four
days/three days, alternating five days/two days and are now doing
what amount to daily transfers during the school week and an
alternating weekend arrangement. A·M-~. has been able to survive
and thrive in all these changes.
Since it is our intention to change the daily transfers at a
minimum {neither parent seems to favor continuing them) A,M.~. is
going to have to make changes no matter whether we adopt a
14
continued fifty-fifty as the Father suggests or award primary
residential custody as the Mother suggests. In one sense, it is
encouraging (if we can use that word attached to a child in
counseling) that A,M.~. will have someone to talk to relative to
the changes which are going to necessarily occur as a result of
our Opinion. Our issue is not "will there be change". Our issue
is which change we will adopt. In either event, we need to
provide maximum stability and continuity for A.M.~. We are
assisted in that by the fact these parents live only four blocks
apart so nothing we do will require a change in school districts
or activities. We believe we can enter an order that will satisfy
A,M.~;~ need for stability and continuity while reducing some of
the parental tensions which will ultimately (if they have not done
so already) affect him.
5) The availability of extended family.
This is a positive in the case. The Father grew up in
Bellwood and his relatives live either in the Bellwood area or in
Altoona primarily. All of these resources are available to him.
For the Mother, although her brothers are at a distance with the
closest residing in Pittsburgh, he is apparently a frequent
visitor at the Mother's home for extended periods of time. The ex
wife of one of the Mother's brothers is also in the Tyrone area
and she maintains contact. The Mother also has a boyfriend in
15
Bellwood (not a resident of her household) who is regularly
involved with, A.M.~. All of these relationships appear to be
positive from 1 A, M.~.\~ standpoint. It is fair to note the Mother
has some concerns regarding the Father's new wife and her role
with , A- .M..~. The Father has some of the same concerns with the
Mother's brothers.
6) The child's sibling relationships.
This is potentially an important factor in the case. A part
of the Mother's case includes the potential to involve all three
of her children, S"'; cl0i~l-i~r-, i and A.~.~ .. r under one roof if she
becomes primary residential custodian of A.M,s. She is already
primary residential custodian of the other two children with their
fathers enjoying periods of partial custody. The joinder of
siblings can be an important consideration. In fact, the Mother
offered to place ~-~ on the witness stand (he is fifteen) to
discuss this issue. We offered to the Mother our belief ``~
should not testify. This was not due to any belief on our part
that ;~o~ could not provide information. Rather, it was
protective of -:$1:>" since nothing '$-Q"' would say would
particularly influence us and the situation (testifying) might not
be positive (especially if the outcome was not what So""
desired). Frankly, we could not see a good reason to put him in
that situation given the offer as to his "desires". This does not
16
mean we do not believe there is a good relationship between ~o~
In fact, we hardly needed 1 ~o .....",s ; testimony to
confirm that as even the Father indicated he believed these
relationships were good. As matters stand, A.~.~. already has a
very real opportunity to bond with his half-brother and half-
sister. We have every reason to believe he has done that
(including our interview with him). We acknowledge that is not
the same, however, as living with them in a primary residential
custody situation. If we award the Mother primary custody, this
would be one of the positives.
7) The well-reasoned preference of the child, based on the
child's maturity and judgment.
As noted previously, we did interview A.M.~ .. We would
describe A.~.~. as reserved and (given the parent's descriptions
of him) perhaps extremely so. This was not surprising. After the
joint meeting about four wee ks ago to get A,M,~. 'S "opinion as to
where he should reside" we would have every reason to suspect just
a matter of common sense that A.M.~. is presently somewhat
traumatized by all of this. Our interview with A.M.~. suggested
to us we should be cautious since he appeared conflicted (to the
extent we could draw any opinion) in a one time meeting with a
nine year old. Certainly, A,M.,'$, made no well reasoned
preference. In fact, he made no preference at all and had he made
one we would have been well satisfied it was not well reasoned.
17
A,M,S. did not impress us as sufficiently mature to be
significantly involved in a decision of this magnitude.
8) The attempts of a parent to turn the child against other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
This is another area of almost remarkable strength between
these· parents. While they were critical of their relationship
with each other and their ability to be flexible at times, there
was no claim that either parent has attempted to turn A.~.~.
against the other parent or win favor with him where custody was
concerned. Clearly, the Father believes his work ethic
demonstrated through his long term employment with Houtzdale State
Correctional Institution as well as his wife's military background
provide a disciplining atmosphere tc A,M.~. are positive. The
Father's role as coach and mentor of A.Iv\.~. and his relationship
with him seem clearly established. We expect the Father's new
wife to further this. Indeed, one of the Father's recurring
themes is that there is a period of adjustment any time A.M,~.
comes over to his house to adjust to the "rules of his household".
When we spoke with A,M.~. we talked about these rules and they
did not appear to have made any great impression on A.flt.~. As a
result, we viewed the Father's perception that A,M,1, might have
difficulty following the rules entering his household as just that
- namely, a perception as opposed to a definite reality.
18
For her part, the Mother has tailored her work cleaning
houses to the needs of the children. She also receives child
support from all three fathers as a source of income beyond work.
It seems the Mother achieves a successful integrated household
when the children are together in a responsible and loving
fashion. A,M.~. does have chores when he is at his Mother's which
appeared reasonable in our discussion with A.~.~ . While there
are undoubtedly differences in the households, these differences
do not (in our view) constitute a major area of difficulty at the
present time.
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.
This is a very important (and difficult) issue in this case.
Clearly, as this Opinion suggests throughout each of the parties
has, in fact, made sacrifices for A·M,~. and has shown the
capability of maintaining a loving, consistent, stable and
nurturing relationship. If we are to dissolve the fifty-fifty,
however, what is much less clear to us is which of the parents is
more likely to maintain that in a situation where each of them has
done a (mostly) good job to this point. Perhaps an even greater
factor is that we do not know. A,}A.."';;.'-s emotional needs at the
present time. Our interview with him developed little on that
issue and we are not in a position to even guess at what his
19
emotional needs might be. In fact, A.)'I.~. has just entered
counseling where we (and the parents) will undoubtedly learn more
about his emotional needs and be able to make more reasoned
decisions than we are in a position to do presently.
One of the real problems if we dissolve a fifty-fifty
relationship under which the parents themselves view A.~.~- as
essentially successful is what is our alternative. The Mother
comes before the Court with the direct response that the correct
alternative is her achieving primary residential custody. The
Father, on the other hand, believes (and his presentation was
almost totally geared to the reasons why) the fifty-fifty
relationship should be continued. Only at the end of our hearing
did he suggest he was the superior primary residential parent if
we chose to terminate the fifty-fifty. In this important regard,
from a factor finder's perspective our hearing was somewhat
underdeveloped. We hasten to add that this was not the fault of
counsel or the parties. In fact, each of the parents appeared
prepared to discuss their respective positions as to continuing
the fifty-fifty and/or the Mother assuming primary residential
custody. The Mother, however, did not spend a great deal of time
talking about how a fifty-fifty would be continued if the Court
chose to do it. Similarly, the Father did not spend a great deal
of time talking about how his household is superior to the
20
Mother's. While the Court is confident this reflects their belief
system, it gives us something of a quandary since our record does
not develop the areas of the Father's perceived superiority to the
Mother as a primary residential custodian nor does it adequately
develop the Mother's views as to how we could improve the parties'
communication problems and control issues which everyone agrees
are the primary source of difficulty presently. This leaves the
Court in a ~ituation where we question the adequacy of our own
record in those regards and especially if we make a final
determination as to primary residential custody. This is
compounded by the fact A . .M,S. is· in counseling which might (or
might not) develop information which would assist the Court if we
are going to abandon the fifty-fifty as to which household
represents A, JI,\,'$.'~: best interest. The fact the Father is
recently married also complicates the situation since this is a
major change to his situation.
For us, this is one more reason why the fifty-fifty should
continue to be attempted with modifications designed to assist the
control issues and communication problems which represent the only
issues why this fifty-fifty should not continue at the present
time. In all other regards, specifically as they relate to
A.M,"S.. , the fifty-fifty is an environment in which he can succeed
based on the fact everyone says he has succeeded to this point.
21
Where no one sees A,11'1,"'$, as "in trouble" that in itself indicates
the change is contraindicated. We also understand A.~·~1~
Father's placing him in counseling may be an indication that
A.M,1. is, in fact, in more trouble than this history suggests.
This may be part of the litigation cycle and the parents'
inability to keep their issues away from A,M..~. . However, we
don't know. Under those circumstances, it is difficult to
determine A.14,-S.'.s best interest in terms in the household in
which he should reside if we terminate the fifty-fifty
relationship (which we concede is likely to occur at some point).
While we acknowledge this reality, we are uncomfortable choosing
between the households at the present time. If, in fact, we are
required to do at some point through the court system we should
hold a hearing which emphasized the comparative strengths and
weaknesses of each household far more than the record we created
on December 30th. This uncertainly on our part is significant in
our view the fifty-fifty relationship should presently be
maintained (although altered to try to improve the situation for
everyone).
10) Which party is more likely to attend to the daily,
physical, emotional, developmental, educational and special needs
of the child.
22
Everything we have said on the preceding factor would apply
with this factor as well. We have nothing more to add specific to
this issue.
11) The proximity of the residences of the parties.
This is a great strength in the case. As noted previously,
the parties reside only several blocks apart within easy walking
distance for ;A,M.~. The parties live in a rural community so
that they are even more accessible in the same town envirbnrrient
where they reside. No matter what we do, as noted previously, no
changes of school district, church or activity structure for
A,fa\.~. are implicated.
i2) Each parent's ability to care for the child or ability
to make appropriate child-care arrangements.
This is not an important issue in this case. This is (again)
a credit to both of these parents. To our observation, both
parents have the ability to care for ,A.M.~. and have made
considerable sacrifices to do so to a degree which is unusual in
our experience. We do not struggle with either parent's ability
to make appropriate childcare arrangements when those are
required.
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.
23
The level of conflict in this case is the primary issue in
the situation before us. To this point, where A.A.~. alone is
concerned we have no doubt the fifty-fifty arrangement (even with
all of its alternations and the reality these changes have made
the parents somewhat "crazy") has benefited A,J\J.S. . We do not say
this based only on our own observations. We say this because both
parents have testified that has been the reality .. Because ·---that is
- -- ----- - ..
true, we believe the issue of primary residential custody has very
little to do with A.~,s:s relative success or failure in the near
term and everything to do with the Mother's belief (not
unreasonable) that the communication problems and control issues
have reached the point where the fifty-fifty relationship cannot
continue. Frankly, this Court is not sure whether the Mother is,
in fact, correct. Because that is true we are reluctant to enter
an order which favors either the Mother (as she suggests) or the
Father (as he suggests). In the end, we are not satisfied the
parties cannot resolve their communication issues and control
problems at the present time so that the fifty-fifty relationship
which has been historically beneficial tc A,~1~. cannot continue.
I
Of course, we may learn things from A,M,'S.1\~ counselor that this
conclusion on our part may no longer be true. What we do know
with some sense of certainty presently is that ,A,M.~. is presently
subject to so many transfers and exchanges that the parents'
24
problems are necessarily exacerbated and we believe unnecessarily
so. The actions which we intend to take will be designed to make
this easier.
When we questioned the Father specifically as to why he
desired to go back to a four/three, three/four as the preferred
measure of visitation we made an assumption which turned out to be
erroneous. Specifically, we assumed when the Father wanted this
arrangement his work schedule (rotating two days off involving
every day of the week) was at the heart of his request. That did
not, however, turn out to be his testimony. When we questioned
the Father further inquiring why he was willing to do a week on
and a week off in the summer (thinking perhaps we should do that
year round to reduce the number of transfers) the Father indicated
that, in fact, he favored the week on/week off year round. He
explained it was 1 A.M.~.1~ ; counselor who communicated to him that
A,M.~. might prefer a three/four, four/three in an attempt to
reduce the transfers. It is all well and good for the Father to
take that position. However, we do not feel A.II.\.~. is in the best
position to make that decision and, in fact, he should not have
any particular input into it. The fact A,M,S. prefers a
continuation of what would continue to be a ~lot" of transfers
between parents who have communication problems and control issues
suggests perhaps 1A.M.~. does not truly understand the situation.
25
In fact, weekly transfers will almost assuredly make this
better and we intend to implement them immediately with exchanges
occurring Sunday at 6:00 on a weekly basis. We believe this can
accomplish many things. First, it will remove for A.M.,~. the
repetitive transfers and resulting changes in his situation which
are occu rr.i.nq so frequently presently. These cannot be good fOr
him over an extended period of time and especially while the
···parties' conflict level is highest. Second, it will ease pressure
on the parents since it will not require so much back and forth
between them with opportunities for tensions to arise. Phone
contact with A.M.~. during each party's week by the non-custodial
parent should be s Lmp.Le-, direct, and unimpaired by both parents.
However, it should not be designed to make the other household
crazy. These parents live close together and given A. M, :S. \$
school and sports schedule they are both actively involved. That
will continue to assure a lot of contact with both parents no
matter whose week it is. The Mother has complete access to
A.M, ~/~ ; sports schedule ( through the other parents, their
children, and A,M,,s. in addition to the Father). The Father
should certainly keep her advised (as that will reduce tensions)
by whatever form of communication he is used to do it. While it
is not our practice to order it, a short note back and forth as to
A./11\.,s.1,s upcoming events at the time of the exchanges on Sunday
26
(or any other convenient time) or a text message which
accomplishes that same purpose should suffice to maintain an open
line. Frankly, if this does not work we will know that the case
probably needs a hearing at which our focus would be which
household should become ~A,.M,·V.s primary residence. We simply are
not satisfied the time for that action is now. The passage of
time and the opportunity for continued counseling should allow us
-··· -· ···---·-··-·
to develop this more fully if we are required to do so. If
matters do not improve with the implementation of longer periods
of custody, then we will all know there is little hope for the
status quo into the future.
We acknowledge this decision may be something of a
disappointment to the Mother. We are not saying to her she is not
the appropriate primary residential custodian. We are simply
saying that any decision in regard to .A.It.\,~,\~; situation into the
future seems premature. Similarly, we are not saying to the
Father that the fifty-fifty is the best relationship for all time.
We are only satisfied it is in A.M.~,~ best interest for now.
How long that is true will be determined by the parents' attitudes
and A.M,-s.'s progress.
14) The history of drug or alcohol abuse of a party or
member of a party's household.
This is not particularly an issue in the case.
27
15) The mental and physical condition of a party or member
of a party's household.
This is not particularly a factor in the case.
This concludes our discussion of the statutory factors. We
believe that on balance the status quo of the fifty-fifty
relationship with significant alterations (to weekly exchanges
from the present schedule) represents the best alternative to test
. .whe.t he r a fifty_-=-f.i.f_t.y_c_ustody arrangement can _continue--to-succeed--.
for A,IIA.,,S. • If that proves wrong in the judgment of either party,
we invite them back and we will certainly hear their positions
further. We do not blame either party with respect to the
breakdowns in communication and control. They are inevitable at
times. It is also significant to us that the period from the time
of their last agreement in November 2012 which included the
Father's marriage appears to have exacerbated the communication
and control issues. Of course, the litigation cycle leading up to
this hearing never makes this easier. We are mindful of that.
There is a substantial part of our thinking which goes to the
possibility that if we can make the periods longer and remove the
parties from the litigation cycle for some period of time we can
make matters better for A./1.t.~. and for the parents. If this is
not true, we will at least have fairly tested it as it applies to
A,A1.``~ best interest so that everyone will feel more certain
that a change needs to be made than is the case presently. All of
28
this is important to A.M,S,\'S future. Accordingly, and consistent
with all of the above we will enter the following Order:
1. The parents shall share the physical and legal custody
of the minor child, A. M. -S. , born May 2004.
Residential custody of the minor child shall be shared.
2. The time arrangements for the Plaintiff and Defendant
shall be as follows:
·- ····-···--
a. A·~·~. shall be with his Father on an every other
week basis from Sunday at 6:00 p.m. until Sunday at
6:00 p.m., commencing Sunday, February 9th, 2014.
b. AM,"$. shall be with his Mother on alternating
Sundays, with the Mother's first week to commence
Sunday, February 16ili, 2014.
c. A,M.~. shall spend the period from the date of this
Order leading up to January 12th with his Mother.
We understand this will be a partial week which
unnecessarily exists due to the date of our Order.
3. Holidays -
a. Christmas - In even numbered years, the Father
shall have the minor child from 3:00 p.m. Christmas
Eve until 3:00 p.m. Christmas Day and with the
Mother from 3:00 p.m. Christmas Day until December
26th at 3:00 p.m. In odd numbered years, the Mother
29
shall have the minor child from 3:00 p.m. Christmas
Eve until 3:00 p.m. Christmas Day and with the
Father from 3:00 p.m. Christmas Day until December
26~ at 3:00 p.m.
b. Thanksgiving - In even numbered years, the Mother
shall have the minor child the day before
Thanksgiving at 3:00 p.m. until Thanksgiving Day at
3:00 p.m. and the Father shall have from
Thanksgiving Day at 3:00 p.m. until the day after
Thanksgiving at 3:00 p.m. In odd numbered years,
the Father shall have the minor child the day
before Thanksgiving at 3:00 p.m. until Thanksgiving
Day at 3:00 p.m. and the Mother shall have from
Thanksgiving Day at 3:00 p.m. until the day after
Thanksgiving at 3:00 p.m.
c. Memorial Day and Labor Day - In even numbered
years, the Father shall have the minor child from
3:00 p.m. the Sunday before the holiday until 7:00
p.m. on Memorial Day/Labor Day. In odd numbered
years, the Mother shall have the minor child from
3:00 p.m. the Sunday before the holiday until 7:00
p.m. on Memorial Day/Labor Day.
30
d. Fourth of July - In even numbered years, the Mother
shall have the minor child from 9:00 a.m. on July
4th until 12:00 noon on July 5th. In odd numbered
years, the Father shall have the minor child from
9:00 a.m. on July 4th until 12:00 noon on July 5th.
e. Easter - In even numbered years, the Mother shall
have the minor child the Saturday before Easter at
7:00 p.m. until Easter Sunday at 7:00 p.m. In odd
numbered years, the Father shall have the minor
child the Saturday before Easter at 7:00 p.m. until
Easter Sunday at 7:00 p.m.
f. New Year's (Eve) - In odd numbered years, the
Mother shall have the minor child from December 31st
at 3:00 p.m. until January 1st at 7:00 p.m. In even
numbered years, the Father shall have the minor
child from December 31st at 3:00 p.m. until January
pt at 7:00 p.m.
4. Each party shall be permitted to telephone the child at
reasonable times and intervals when the child is in the
custody of the other parent.
5. The child shall be with the Father on Father's Day and
with the Mother on Mother's Day with the times to be
from 9:00 a.m. until 9:00 p.m.
31
6. The party having custody of the minor child on his
birthday shall celebrate the child's birthday with the
child. The parent out of custody on the child's
birthday shall celebrate the child's birthday with the
child on the next date that they have custody.
7. Transportation to and from the place of physical custody
with the subject minor child shall be shared by mutual
agreement of the parents.
8. If either party is unable to exercise their physical
custody rights at any point and time, they shall provide
at least twenty-four (24) hours prior notice to the
other party in the absence of an emergency.
9. Each party shall keep the other informed of their
current address and telephone number.
10. Each party shall keep each other informed of the child's
health, progress in school, school activities and
general welfare and shall consult the other parent
concerning major decisions affecting the child, to
include education, religious training and medical
treatment. If an emergency or illness requiring a
physicians attention should occur to the child while in
their physica~ custody, each party must notify the other
party.
32
11. Each party is entitled to receive directly from schools,
health care providers, or other relevant sources,
information concerning the child.
12. The parties shall not argue or engage in heated
discussions in the presence of the child.
13. Neither party shall engage in any conduct which presents
to the child a negative or hostile view of the other,
nor shall they allow any third party to do or say
anything that would hamper the natural love and respect
of the child for the other.
14. Each parent shall encourage the child to comply with
this parenting agreement and foster in the child a
positive view of the other.
15. The party who has physical custody of the child should
encourage, prepare and have the child available at the
designated times and places so visitations occur
smoothly. Likewise, the party exercising partial
custody or visitation rights should encourage, prepare
and return the child promptly at the designated times
and places.
16. THE PARTIES MAY DECIDE DIFFERENT TIME .ARRANGEMENTS AND
MAKE DECISIONS FOR THE CHILD WHENEVER THEY MUTUALLY
AGREE TO DO SO. NOTHING IN THIS AGREEMENT IS UNDERSTOOD
33
TO LIMIT OR RESTRICT THE ABILITY OF THE PARTIES TO
MUTUALLY AGREE ON ALTERNATIVE PARENTING ARRANGEMENTS.
IF FOR ANY REASON THE PARTIES CANNOT AGREE, THE TERMS OF
THE CONSENT AGREEMENT WILL BE FOLLOWED.
17. ALL HOLIDAY SCHEDULES SHALL SUPERSEDE ANY OTHER TIME
ARRANGEMENT UNLESS THE PARTIES MUTUALLY AGREE TO DO
OTHERWISE.
18. VIOLATION OF THIS ORDER BY ANY PERSON MAY RESULT IN
CIVIL AND CRIMINAL PENALTIES, INCLUDING PROSECUTION
PURSUANT TO SECTION 2904 OF THE PENNSYLVANIA CRIMES
CODE, INTERFERENCE WITH CUSTODY OF CHILDREN.
19. Jurisdiction of the child shall remain with the Court of
Common Pleas of Blair County, Pennsylvania, unless or
until jurisdiction would change under the Uniform Child
Custody Jurisdiction Act.
20. No party shall relocate the children unless every
individual who has custody rights consents to the
proposed relocation, or the court approves the
relocation. Any party who desires to relocate with the
children shall first notify every other individual who
has custody rights. The party who desires to relocate
with the children must also comply with 23 Pa.C.S. 5337
34
et seq. (A copy of this statute is available in the
Blair County Custody Office).
In closing, we ask the parents to rededicate to A.M, ~.'.:s best
interest under the arrangement which we are presently ordering.
We hope this will give you some relief. We do believe that the
removal of distancing in time of the events of the past year
(including this litigation) may be an assist to get this back on a
more even keel. Your ability to cormnbnicate and to "correct" some
·n,,
of your behaviors will be critical to whether a fifty-fifty
arrangement can succeed for any s'ign:i,.Jicant period of time into
the future. We wish you well in that regard as we believe both of
you in the most important testimony which you have repeated
consistently - namely, that A./.\,<.,. is essentially doing well both
1
in school and his activities. It would be a shame, albeit it may
be necessary to conclude an arrangement where that is the reality
based on your own problems of communication and control rather
than 1A.~.~>s needs. We wish you every success in making the
necessary adjustments.
BY THE COURT:
FILED:
ajh
35
Circulated 02/22/2017 04:47 PM
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
M.~.
Plaintiff
v. :NO. 2006 GN 2267
V.M. l=.
De f endarit; .......
...._.
. . . -.-:_)
".::n
HONO_RABLE HIRAM A. CARPENTER, III SENIOR JUDGE
TERRESSA E. GEORGE, ESQUIRE COUNSEL FOR
THOMAS DICKEY, ESQUIRE COUNSEL FOR
( . )
-··J w
OPINION·AND ORDER
This matter comes before the Court for resolution of the
existing issues relating to the custody of these parent's only
child, A.fvl.~. , born May 2004. Hearings were held in
the matter commencing October 30, 2015, which afforded both
parents the opportunity to testify to their positions regarding
the primary custody of . A.,/\1\.":I. Next, A.M.~. was then
interviewed by the Court several months before the conclusion of
the school year which formally closed proceedings. After the
conclusion of these proceedings, the parties were then afforded
several months to determine whether or not a further agreement
could be reached between them which would have eliminated the
need for the Court to make a determination over the issue of
·~
primary custody. In that regard, the parties had agreed ·from
the outset that there would be no change in A,~.~.~ primary
custody prior to the end of the school year which occurr~d in
June 2016. In the interim, the status quo·was maintained by
•. <..,
that a~reement. With the conclusion of the school year and no
agreement now having been reached, the record is presently
closed and the matter is ripe for determinatio~ before the
Court.
As the record will reflect, this Court has previously
authored a thirty-five page opinion regarding the custody of
A.M.~ .. That opinion was filed on January 30, 2014. We
incorporate that opinion in its entirety in the opinion we
author presently noting that with respect to many of the matters
discussed in our January 30, 2014 opinion our views remain
unchanged.
Essentially, we co~tinue to believe that each of these
parents have performed remarkably and steadfastly with respect
to :A,M.~ .. It was primarily that reason, taken together with
l A. ./o\,c..'\ consistently solid development during their fifty-fifty
shared custody arrangement, t~at convinced this Court at the
time of our earlier writing that some continuation of the
party's fifty-fifty custody relationship should be maintained.
In that regard, we were taking what for this Court was
almost an unprecedented step - namely, maintaining a fifty-fifty
relationship where one of the parents (the Mother) was firmly-
2
opposed and the other parent (the Father) also had questions
about the viability of the arrangement. Knowing this, we
invited the parties back before the Court should our tweak of
their fifty-fifty arrangement (which provided for fewer
transfers) prove unsuccessful.
Regrettably, the parties are now back before the Court with
that arrangement having proved unsuccessful in the view of both.
By hearing the matter again in an additional full evidentiary.
hearing commencing less than two years after our January 30,
2014 evidentiary hearing we honor our pledge to the parties that
they could (and should) return should the arrangement prove
unsuccessful.
While the pretrial narratives of the parties emphasize that
neither of the parties was "happy" with the fifty-fifty
arrangement we acknowledge that (in our view) as we heard the
Father's testimony there appeared to still be a question in his
mind whether a fifty-fifty might actually still be best for
Because we have that perception we will address the
issue of a further continuation of the fifty-fifty relationship·
first.
As the parents. (hopefully) read again our January 30, 2014
opinion it should become apparent to them that while we believed
a continuation of the fifty-fifty relationship was best we
expr'e ss ed doubts several times in' our opinion whether this would
3
prove successful. Our caution that the fifty-fifty might prove
unsuccessful was based on the simple reality that fifty-fifty
relationships are rarely able to be maintained forever. We
spoke to this at length in our earlier opinion and will not
repeat everything we wrote earlier. The eventual "termination"
of fifty-fifty relationships for various reasons remains the
reality for most cases. As we noted in our earlier opinion,
howeve r , t,his case did not (again in our: view) fit--the-- -mold of
"most" cases.
As we offered in our January 2014 opinion at pages 7-8 we
outlined in detail our experience with fifty-fifty relationships
and the types of events which typically precipitate a
termination of the arrangement while noting at page eight of our
opinion that this case fit none of the traditional categories
familiar to our experience. In fact, we viewed the problem with
the fifty-fifty relationship which brought you before the Court
was a problem totally between you while the relationship itself
was still most beneficial t o A ,M.~. . Unfortunately, that is no
longer our view. In fact, the problems between you have now
reached a point where we are satisfied that you can no longer
co-parent in a fifty-fifty relationship successfully.
We base this on several fundame~tal realities. First, our
belief that the frequent transfers. (almost _daily) which were
occurring prior to our 2014 opinion would improve communication
4
has proven to be incorrect. The truth is that the band-aid
which we put by extending the periods to one week on/one week
off throughout the year bought only a few months of peace in
that by mid-2014 both sides were filing multiple petitions over
issues where even a modest ability to communicate would have
...~..,..;
allowed for agreement. Meanwhile, the tensions between you as
parents (and the Father's new wife) escalated to a point where
_pol.ice involvement occurred with a resulting increase in
tensions. As A.M.~. approaches his teenage years, none of this
has even the possibility of healthy parenting. While A.~.~.
appears to still be doing well according to all accounts, what
we have presently is a time bomb where his development -into.his
teenage years seems almost certain to trigger a reaction one way
or another. Worse, many of the advantages which we had in 2014
and especially the fact you both resided in the Tyrone School
District no longer exists. In the summer of 2015, in fact, the
Father moved into the Altoona School District. With that move,
a choice of school districts is inevitable due to the fact that
the transport either way by whichever parent was "a twenty
minute drive awayn is impractical generally and made even more
impractical because of l A.ft\,'>. ',s participation in sports
throughout the school involving numerous evenings due to the
wrestling schedule and his participation in various clubs.
Inevitably, these problems will only escalate as A,.M..~. gets
5
older. For all of these reasons, we believe the parents are
correct in returning to the Court for resolution of the issue of
primary residential custody. We also believe the Father's
reluctance (as we perceive it) to commit fully to the
designation of a primary residential custodian is no longer the
appropriate view. Simply put, the history since January 2014
taken in total convinces us this is simply not going to work.
·- -)\s. always, our paramount concern in a case whether it
involves custody or visitation is the best interest and
permanent welfare of the children. Commonwealth ex rel Pierce
v. Pierce, 493 Pa. 292, 426 A. 2d 555 (1981). All other
considerations are deemed subordinate to the child's physical,
intellectual, moral and spiritual well being. In the interest
of Tremayne Quame Idress R., 429 A.2d 40, 43 (1981). Parents do
not have a property right in their children. Whatever claim
they may make for either custody or visitation rights is to be
tested by what is in the best interest of the children. See
generally Common.wealth ex rel Children's Aid Society v. Gard, 66
A.2J 300 (1949). A custody decree is not meant to punish a
parent or anyone else. Its only purpose is to help the child.
In Re: Custody of Temos, 450 A.2d 111 (1982). The clear trend
has been to abolish presumptions in custody disputes. In
children custody cases, -the Court must cqntinually hew to the
polestar of a child's best interest eschewing presumption and
' 6
surmise. Morris v. Morris, 412 A.2d 139, 141 (1979). The Court
.,,,,,~ should avoid mechanical determinations and focus its analysis on
a close scrutiny of all particular facts relevant to determining
the child's best interest. In Re: Custody of Hernandez, 376
A.2d 648, 653 (1977). Further, the ability to care for a child
is to be determined as of the time of the custody hearing, not
as of an earlier time. In Custody of Frank, 423 A.2d 1229(19-80) . Decisions must be made on the basis of current facts
and not the past conduct of the parties. In Re: Leskovich, 385
A.2d 373 (1978). The primary concern in custody matters lies
not with the past but with the present and future. Hooks v.
-
Ellerbe, 390 A.2d 791 (1978). Facts at the time of hearing are
the foundation for the determination of the Court. Augustine v.
Augustine, 34~A.2d 477 (1974). At hearing, each parent shares
the burden of proving by a preponderance of the evidence that an
award of custody to him or her would serve the best interest of
the child. Ramos_v. Rios, 378 A.2d 400 (1977). Continuity and
stability are important elements in a young child's emotional
development. Commonwealth ex rel Jordan v. Jordan, 448 A.2d
1113 ( 1982) .
The principles enunciated above are time honored in
Pennsylvania law. More recently, however, as a result of the
Pennsylvania's adoption of the new Child Custody Act at 23
Pa.C.S.A. §5328(a), that act directs that when a party files a
7
petition for modification of a custody order, the trial court
must perform a "best interest of the child" analysis corrs i.der-Lnq- )
·all of the Section 5328(a) factors. Those 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 member of t he party's household, whether
. .t.her e is a continued risk of ha rrru.t.o t.he.cch i ld 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 other parent, except in case 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.
8
12) Each party's ability to care for the child or
ability to make appropriate child-care
arrangements..
13) The level of conflict betw~en the parties·and the
·willingness and ability of the patties to cooperate
with one another. A party's effort to protect a
child from abuse by another party is not evidence
of unwillingness of inability to cooperate with
that party.
14) The history of drug or alcohol abuse of a pc:).,r.ty
or member of a party's household .
. . _ .15 l . The_mental and physical condi tien- ·of-a ..party
or member of a party's household.
16) Any other relevant factor.
As the language of the Act suggests, these factors are not
the only factors a Court may consider. However, they are to be
included as part of the analysis.
DISCUSSION
With the determination made that it is necessary in
best interest to determine a primary residential
custodian, we turn to the statutory factors as the primary
format for this opinion and order.
1) Which party is more likely to encourage and permit
frequent and continuing contact between.the child and another
party.
At the time of our January 30, 2014 writing we did not see
this as a major issue in the case. That opinion on our part was
solidly based on the remarkable achievement by these parents,
9
who had little or no relationship before . A.1-1,-s.'~ birth, in
maintaining a fifty-fifty custody arrangement fo~ ten years
without much need for outside intervention. Unfortunately,
since our order of January 30, 2014 problems have become more
frequent because of fundamental communication and coritro1 issues
and have, in fact, increased difficulties. Issues such as
, A.~.~.'s possession and use of a cell phone which might have
. provided some_ r.elief .. _during the parents periods of . - s epar.at-Lon ·
from A.M,:4S. have ( instead) become a source. of difficulty. In
this regard, we reference our January 30, 2014 Opinion at page
twelve as follows:
- ..
Our issue is far more subtle than whether
these parties would follow a court order.
We believe they can pass that test. The
greater question is whether these parents
can achieve flexibility and resolve
communication and control issues
sufficiently for the fifty-fifty
arrangement to go on much longer. For
reasons which we will state later in this
Opinion we believe this_can and should be
attempted in A,/1\,i.\~ best interest.
The above represented our view of the party's situation
relative to encouraging and permitting future contact. At this
juncture they have failed that test. In fact, they have not
been able to achieve flexibility and resolve their control and
communication issues sufficiently for.us to believe with any
confidence that flexibility will ever occur.
10
That said, the issue favors neither party to such an extent
that it would provide a sound basis (in itself) to favor one
party or the other. There are simply too many complaints each
way. This issue, however, does .r'e s ona t e as one of the primary
reasons why as A.~.$. enters his teenage years the fifty-fifty
relationship is .no longer appropria~e. A .-4\.~.'$ life into these
next few years will require a maximum of. flexi?ility as opposed
· ···-··- __ t::Q_J:.hose years when he was far more dependent; on each--e-f--hi-s-·----
parents to make the decisions during their periods of custody.
2) The present and past abuse committed by a party or
member of the party's household, whether there is a coritintied
risk of harm to the child or an ~bused party and which party can
better provide adequate physical safeguards and supervision of
the child.
Issues of abuse have never been present in this case.
There has never been an allegation of abuse.against anyone past
or present. Rather, what. w·e have seen over the intervening two
years is a continuation of the poor relationship which exists
between the Father and the Mother as well as the Father's new
wife This has led to police involvement on at least
two occasions. Significantly, neither of these occasions
involved A.M.~. directly although he was present (obviously) at
the wrestling banquet where separate confrontations apparently
occurred between the Mother and. the Father and the Mother and
the step-mother. While these were certainly unhealthy for
A.M.~., they were far more indicative of the need to terminate
11 .
the fifty-fifty relationship than in addressing the question of
who specifically should be the primary residential custodian.
Simply·put, they are demonstrative (very) of the reasons that
bring us he r e. Be yond that conclusion, however, the events do
little to decide an issue such as primary residential custody.
Indeed, to decide primary custody based on this type of isolated
occurrence would be a poor exercise of our discretion and
__ extremely unf.a ir__t_o__A_,_M,_,_,s,__ . In fact, to the extent they.. - - - --·- ---- --
represent "abuse" issues or simply the poor relationships
existing between these respective individuals they do not serve
as a primary basis for our determination of primary residential
custody.
3} The parental duties performed by each party on behalf
of the child.
This issue continues to be a strength f6r both patties.
Each of the parents participates in all aspects of A,M.~>s
life. That participation, in fact, was so strong by both of
these parents that it gave us pause at the time of our earlier
opinion (See page 13 of our Opinion and Order of January 30,
2014) in terminating the fifty-fifty relationship. Beyond that,
we do not view either parent more positively than the other in
terms of their willingness to perform parental duties. While.
their priorities with respect to A.M,S .. '-& involvement
(especially in sports) may be somewhat different, we have no
12
doubt that either parent would see that A.~.~. was actively
involved in those activities in which he wishes to participate.
4) The need for stability and continuity in the child's
education, family life and community life.
This is probably the most important factor in the case as
it clearly represents the area where the most change has
occurred since our January 2014 Opinion. As noted previously,
at the time of our earlier opinion these parties lived blocks
from each other. Now, due-to the Father's move to the Altoona
School District not only is there a twenty minute drive involved
between their homes but·we confront a situation where if the
Father is designated the primary custodial parent a change in
school district to Altoona becomes a veritable
certainty. In fact, if that· change did not occur A.~.~. would
be subjected to numerous daily trips back and forth from Tyrone
to the Father's residence, which would requirs A.Ai\.~. to get up
earlier to go to school while (inevitably) putting him at a
distance from his friends and social life with his fellow
students. For these reasons, the Mother would offer more
stabi 1 i ty as the primary residential custodian if A. M .~. is to
remain where he has always been at Tyrone.
Because of the reality that A.k.s. would be transferred to
the Altoona Area School District or be exposed to significant
back and forth to Tyrone if the Father is primary residential
13
custodian it becomes necessary to ask a very important question
- namely, is .A.~.~. better served in the Altoona Area School
District than he is in Tyrone? Considering that question, the
answer is clearly no. In fact, A·M.~. is better served
remaining in the Tyrone Area School District for numerous
reasons. First, and foremost, he is clearly succeeding there.
That is the testimony of everyone. To relocate a child away
·c,-·cc--c·,··cc:f-::r:Qm,:-ch-i-s,..,.,we-1-1 established relationships ( according to :-,"';-"ft.\;'S-., h.rs: -- ----
best friends are in Tyrone) and a school district where he is
successful (according to everyone} requires reasons. Simply
put, from the standpoint of his development those reasons do not
exist. In fact, A.M,4$.. residing in the Altoona School District
and attending there would fundamentally change everything that
he has experienced to this point. While iA,M,s. is certainly
flexible, this factor is extremely important to us and to
In that important sense, this opinion is very different
from the one we entered earlier on January 30, 2014 where we
offered the following on the issue of stability and continuity:
We need to provide maximum stability and
continuity for A,A--i.~ .. We are assisted in
that by the fact these parents live only
four blocks apart so nothing we do will
require a change in school districts or
activities. We believe we can enter an
order that will satisfy A./.t,S,':s need for
stability and continuity whi~e reducing
some' of the parental tensions which will
14
ultimately (if they have not done so
already) affect him.
(See Opinion and Order of January 30, 2014, pg. 15) .
What was true then is no longer true. This case has, to
some extent, become a relocation case. Given A.M.~ s
1
familiarity with the Tyrone School District, his friendships in
the Tyrone area, and his successes to this point it is clear
that this factor strongly favors A.M.~. being placed in the
---pr±ma~ry-,-custo-ay--ocf-,-his Mother where that stability exists.
5) The availability of extended family.
While there was testimony as to some changes, both the
testi many and our interview with A.M.~, suggest. that these
relationships all continue to be positive. This is not a major
factor in our decision.
6) The child's sibling relationships.
At the time of our earlier hearing, as part of the Mother's
case for designating her as the primary residential custodian
she emphasized that this would place all three of her children -
, and A.Ni.~. - under one roof. Although '5.~i-.. and
d°'...."';i~er have other fa the rs, the Mother was at the time of our
earlier writing and continues to be their primary residential
custodian. The joinder of siblings becomes an important
consideration when considered in the light of the fact that the
Father has moved to Altoona which places additional separation
between these siblings than-existed when they were four blocks
1.5
apart. As occurred at our earlier proceeding, the Mother again
offered her sorl s testimony in support of these
relationships~ We (again) declined to hear him·based on ~o``
minority. In that regard, we are also guided by the fact the
Father made no claim these relationships were not healthy. As
we noted previously, if we award the Mother primary custody this
would be one of the positives. (See Opinion and Order of
----Janua=i::-y-,-3-0,,,---2-0,14, pg. 17) .
7} The well-reasoned preference of the child, bas~d on
the child's maturity and judgment.
Once again, as we had at the time of our earlier opinion,
we did interview A./11\, ":;. Obviously, having had the opportunity
to interview him with respect to our January 30, 2014 Opinion,
we were curious as to his development. We were also interested
in assessing how the parents' ongoing difficulties (clear to
everyone} might have impacted A Jv,., -s. Further, knowing that
was entering counseling (directed by the Father) at the
conclusion of our earlier proceedings we were anxious to assess
this as well.
In the interest of completeness, having raised the issue of
the counseling, we note the counseling did not appear to be
indicated after it was commenced .and it was terminated by the
counselor (Peggy Nadenick). The counselor did not testify at
our proceeding or submit any report.
16
Our interview witl:· A..M._~r- was significant in two respects.
Although the Mother had indicated she believed A.~.~. preferred
her as the primary residential custodial parent, he did not make
any attempt to choose between his parents. Instead, when we
asked him generally whether there was anything we (the Court)
could do to assist him he suggested that "we help his parents
get along better" as his recommendatibn. A response of this
nat-ur-e ,suggests several things. First, that .-:::fA·,f!..,~,.---:-c: is very
aware of the extent of the difficulties between his parents.
-Second, that they have begun to affect him to the extent that he
would make such a comment to the Court. Third, that ,A,M,~. is
thinking about his situation in a mature fashion and clearly
recognizes that his ability to.remain in a "fifty-fifty
custodial relationship" is at issue.
Beyond that, while choosing neither parent specifically
A,M.~. did indicate a clear preference for remaining in the
Tyrone School District. Obviously, this is extremely
significant to our determination. Certainly ~.~.~. can hardly
be blamed for taking that view. He was clear that his friends
and activities are primarily Tyrone based. His success (again
according to everyone) in Tyrone as opposed to marching off into
the wild card which the Altoona School District would inevitably
represent again demonstrates maturity. In this regard, .A.~.1.
17
did impress us in terms of his ability to provide something
meaningful to this deliberation.
8) The attempts of a parent to turn the child against
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
Although the difficulties between these parents have
increased in terms of the tension level, the issue of alienation
is not a point of emphasis for either. There wa s.e no claim that
-- -------- --·---- ----------- ·-··-·
either parent has attempted to turn A,A.~ against the other
parent or win favor with him where custody was concerned. As we
noted previously, the Father continues to believe his work ethic
demonstrated through his long term employment with Houtzdale
State Correctional Institution as well as his wife's military
background provides a disciplining atmosphere to A.P..,~. which is
positive. The Father's role as coach and mentor of, A.~.~- and
his relation with him in those regards also remains clearly
established.
For her part, the Mother's situation remains remarkably
unchanged. The Mother continues to tailor her work to meet the
needs of her three children. She also continues to receive
child support from all three fathers as an additional source of
income.
For his part, A.M.~. seems content in both households and
speaks positively about both of them.
18
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.
At the time of our earlier writing it was not clear to us
which of these parents was more likely to maintain a loving,·
stable, consistent and nurturing relationship with A.M.~. We
could offer little more than commending each of them for doing a
(mostly) good job to this point.
-,-------------------------_-W-h-i.,.l-e,.,.,we---retain that view where each of. the-parents is------;---
concerned individually, we no longer question (as we did at
length in our earlier opinion) (See pgs. 20-22 of the January
30, 2014 Opinion and Order) "what is our alternative". ~rn fact,
we are now of the view that an alternative is necessary.
As this opinion developed, it became clear that the
Mother's household is favored over the Father's for reasons of
stability and continuity. This view, however, is not based on
the stability and continuity within either household. Rather,
it has to do with A,111,::S.'~ success to this point in the Tyrone
School District and the risk of changing what has been a
successful formula for him. To take such a risk, we would have
to be satisfied there were substantial reasons for doing so.
Simply put, in his presentation in terms of primary custody, the
Father has failed to convince us relative to this issue that, in
fact, his household is superior to the Mother's.
19
We have now held the hearing which we discussed in our
earlier Opinion of January 3 o, 2014 ( at .p~ge 2 4) wh-ere we would
emphasize "the comparative strengths and weaknesses of each
householdu to determine any potential superiority. In fact, at
this juncture we believe neither of the households has been
established as sufficiently superior to justify finding an award
of custody based on this factor one way or the other. In fact,
---- ·------·- ----aet-h---,--,---(-i-nc-:-ca·na,-,---eJ-,-t-Jaemse,1-ves ) are st ab 1 e , 1 ovi-ng, --GGns-i-s-t-e-nt;,-,--,,-a-nG.-------,c---
nurturing environments. As a result, this factor is not a basis
to determine the issue of primary residential custody one way or
the other.
10) Which party is more likely to attend to the daily,
physical, emotional, developmental, educational and special
needs of the child.
As we opined at the time of our earlier opinion of January
2014, everything we have said on the preceding factor would
apply with this factor as well.
11) The proximity of the residences of the parties.
This strength in the case, of course, no longer exists with
the Father's move to Altoona. In fact, there would be changes
in A.~.`` ; school district, activity structure, and social
network which would inevitably result from placing A.I"\.~. with
his Father. Simply put, we would have to have substantial
reasons to make this change.
, 20
12) Each parent:.' s a:bility to care for the child or abil_ity
to make appropriate child-care arrangements.
This is not an especially important issue in this case. As
we observed previously, both parents have the ability to care
for ~ A../11\, ~. and make considerable sacrifices to do so. We have a
positive view of both parent's ability to make appropriate child
care arrangements when those are required.
13) The level of conflict between the parties and the
---,-.-,---c_c,_,w-i-:--1-l-,---i-ng-ness and al>i:l_:i,t:.:Y--Of the parties to co:9_p,E!_,;:',a,t_E!=wLt!:i,,P~.e:--c_-,- _
another. A party's effort to protect a child from abuse by
another party is n6t evidence of unwillingness or inability to
cooperate with that party.
The level of conflict in this case is, of course, a primary
issue. In fact, the communication problems and control issues
have reached the point in our judgment where the fifty-fifty
relationship should not continue and, in fact, we should
designate one of the parents as the primary residential
custodian.
14) The history of drug or alcohol abuse of a party or
member of a party's household.
This is not an issue in the case.
15) The mental and physical condition of a party or member
of a party's household.
This is not an issue in the case.
CONCLUSION
Having concluded our di$cussion of the statutory factors,
it seems clear based on our conclusions that the primary
21
.................. --------- .. 2_. __The __ r_esidential custcdy of the mi.nor' child sha1l_be
-w-ith the Mother, with the Father having periods of
partial custody as follows:
a. During the school year, A.M.~. shall be with the
Father on an every other weekend basis from
Friday after school (or sports if he is
practic_ing that day) until Sunday at 7:00 p.m.
-------------,--------_-_ ~--- --·---,----:::-==-b-_,--_-Dll-:r;...ing the summer, -A,M,";,, aha.Ll }:le,-,-with.,...his
parents on the same week on/week off basis
existing presently with Sunday transfers. This
schedule shall commence the first Sunday after
school ends at 5:00 p.m. until 5:00 p.m. the
following Sunday and with this alternating
schedule ending timed so that A,l'l.,