C.W.C. v. S.E.C.W ( 2015 )

J-A02009-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.W.C. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
S.E.C.-W.
Appellant No. 1932 EDA 2014
Appeal from the Order Entered June 3, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): OC1100720
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 10, 2015
S.E.C.-W. (“Mother”) appeals from the June 3, 2014 order, entered in
the Court of Common Pleas of Philadelphia County, transferring primary
physical custody of the parties’ two youngest children to C.W.C. (“Father”)
and awarding Mother partial physical custody.1 The court also granted both
parties shared legal custody, granted Father’s two petitions for contempt,
found Mother in contempt of the custody order, and awarded Father $2500
in counsel fees. After our review, we affirm on the opinion authored by the
Honorable Diane Thompson.
Mother and Father are the parents of three children, M.C. (born March
1999), E.C. (born June 2002), and C.C. (born February 2005). The original
____________________________________________
1
The court ordered that Mother retain primary physical custody of the
parties’ oldest child, M.C.
J-A02009-15
custody order was entered in 2005, in Virginia, (“the Virginia order”); that
order granted primary physical custody of the three children to Mother and
granted her request to relocate to Philadelphia subject to Father’s partial
physical custody on alternating weekends and specific holidays. The Virginia
order also included a clause to alter arrangements and provide for a make-
up weekend in the event that weather made travel dangerous on one of
Father’s scheduled custodial weekends (the “Weather Clause”).
Both Mother and Father remarried. Father moved to Dundalk,
Maryland, outside of Baltimore, which is approximately a two-hour commute
from Philadelphia.2
On June 11, 2013, Mother filed a petition to modify custody. After
four custody hearings, including an in camera interview with the children on
November 14, 2013, a hearing on Father’s petition for special relief, as well
as an additional hearing on April 29, 2014 on Father’s petition for contempt 3,
the court entered the June 3, 2014 order.4 Mother appealed that order.
____________________________________________
2
The trial court recognized that this is not a relocation case.
3
The court found Mother willfully refused to transport the children to Father
on one of his scheduled custodial Fridays, and held Mother in contempt and
ordered that she pay Father $2,500 in counsel fees pursuant to the parties’
July 31, 2012 agreement.
4
Mother filed a petition for reconsideration of this June 3, 2014 order. The
trial court failed to expressly grant reconsideration and, instead, entered an
order scheduling a hearing. See Pa.R.A.P. 1701- Note (if trial court fails to
enter order “expressly granting reconsideration,” within 30 days, the trial
court’s loses power to act on the motion for reconsideration); Cheathem v.
(Footnote Continued Next Page)
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J-A02009-15
Mother raises the following issues for our review:
1. Whether the trial court abused its discretion and erred
as a matter of law and fact when it transferred primary
custody of the parties’ younger children to Father?
2. Whether the trial court abused its discretion and erred
as a matter of law and fact when it ordered the
relocation of the parties’ two younger children to
Maryland?5
3. Whether the trial court abused its discretion and erred
as a matter of law and fact when it precluded Mother
from submitting testimony and evidence in support of
her case for custody and father’s contempt?
4. Whether the trial court abused its discretion and erred
as a matter of law and fact when it found Mother in
willful contempt of the custody order and directed
Mother to pay Father’s counsel fees?
5. Whether the trial court abused its discretion and erred
as a matter of law and fact in not finding Father in
willful contempt of the custody order?
We first set forth the legal standards that guide our appellate review of
this child custody case.
_______________________
(Footnote Continued)
Temple Univ. Hosp., 743 A.2d 518 (Pa. Super. 1999) (trial court must
expressly grant reconsideration, not just set hearing date, within time
allowed for filing an appeal, in order to toll time for taking appeal). The trial
court, therefore, lost jurisdiction to act on Mother’s petition for
reconsideration. In any event, Mother filed a timely notice of appeal from
the June 3, 2014 order on June 25, 2014. See Pa.R.A.P. 903.
5
See supra note 2. Contrary to Mother’s claim, the relocation factors do not
apply herein. Neither party raised relocation during the proceedings.
Further, Mother’s challenge is to the change in primary custody of the two
younger children; the distance between the parties has remained the same.
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J-A02009-15
[O]ur 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.
Further, on the issues of credibility and weight of the
evidence, we defer to the findings of the trial judge.
Additionally, appellate interference is allowed only where it
is found that the custody order is manifestly unreasonable
as shown by the evidence of record.
Jordan v. Jackson, 876 A.2d 443, 449 (Pa. Super. 2005) (internal
citations, quotations omitted). See In re: R.J.T., 9 A.3d 1179, 1190 (Pa.
2010); M.P. v. M.P., 54 A.3d 950 (Pa. Super. 2012). Additionally,
[w]e consistently have held that the discretion that a trial
court employs in custody matters should be accorded the
utmost respect, given the special nature of the proceeding
and the lasting impact the result will have on the lives [of]
the parties concerned. Indeed, the knowledge gained by a
trial court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court by a
printed record.
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004). See A.H. v.
C.M., 58 A.3d 823, 825 (Pa. Super. 2012).
Furthermore, we note that
The primary concern in any custody case is the best
interests of the child. The best-interests standard, decided
on a case-by-case basis, considers all factors that
legitimately have an effect upon the child’s physical,
intellectual, moral, and spiritual well-being.
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J-A02009-15
Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v.
Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)).
The trial court determined Mother’s home is less stable than Father’s
home.6 The court also determined that Mother was interfering with Father’s
relationship with the children, that Father would be more likely to encourage
contact between Mother and children, that Father would be more likely to
maintain a consistent and nurturing relationship with the children, and that
Mother’s animosity toward Father may be exacerbating the children’s
psychological issues. The court concluded, therefore, that it was in the
children’s best interest to transfer primary custody of the two younger
children to Father and maintain primary custody of the oldest child, M.C.,
with Mother. The court stated that this would give the two younger children
“a fresh start in a more stable and supportive household . . . while
continuing their relationship with Mother.” Trial Court Opinion, supra at 33.
The court further noted that it did not disturb Mother’s custody of M.C. in
light of M.C.’s age, her psychological issues,7 which the court found had a
____________________________________________
6
Mother and Stepfather both suffer from depression. Mother admitted
herself to Horsham Clinic for four days, overwhelmed by the custody
litigation. At the February 24, 2014 hearing, Mother testified she had been
laid off from her job and was currently seeking a new position. Stepfather,
who was an Episcopal priest at All Saints Episcopal Church, is no longer
employed there and is currently involved in a defamation suit against the
church. Mother and Stepfather are also undergoing marriage counseling.
7
M.C. was diagnosed with generalized anxiety disorder.
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J-A02009-15
disruptive effect on the younger children, her conflict-ridden relationship
with Father, and her consistently expressed desire not to see Father.
After our review of the parties’ briefs, the record, and the relevant
case law, as well as the factors set forth at 23 Pa.C.S. § 5328(a) of the Child
Custody Act, we conclude that Judge Thompson’s findings are supported in
the record and her conclusions of law are proper in light of those findings.
In re: R.J.T., supra; Jordan v. Jackson, supra. See Trial Court Opinion,
9/2/14, at 11-15. We, therefore, affirm the custody order based on Judge
Thompson’s opinion. We instruct the parties to attach a copy of that opinion
in the event of further proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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COPIES SENT
. RmSUANT TO P.'.l.R.O.P. 236(b)
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY SEP 0,2 2014
FAMILY DIVISION
f)C~~IC~eri1P~
C._. W. C:t 61 I IILL, TRIAL COURT DOCKET NO. OC1100720
PETITIONER/ APPELLEE
DESIGNATED "CHILDREN'S
v. FAST TRACK"
S- E. C/ 1111111..-WILF I J.I(, SUPERIOR COURT OF PENNSYLVANIA
RESPONDENT/ APPELLANT DOCKET NO. 1932 EDA 2014
OPINION
Appellant,~ E. CMW911-W~ ("Mother"), appeals from the order of June 3,
2014, in which this court transferred primary physical custody of the parties' two
youngest children, ~ C~ {DOB June d, 2002) and ~ C~ (DOB February:=,:
2005), to~ W. CiM;;r !IP("Father") who resides in Maryland, and awarded partial
physical custody to Mother. In addition, the order of June 3, 2014, provides that Mother
shall continue to have primary physical custody of the parties' oldest child, M~
C~ (DOB March~ 1999), and Father shall have partial physical custody. The order
further provides that the parties shall share legal custody of all three children. This court
also granted Father's Petitions for Contempt filed January 29, 2013, and March 14, 2014,
and found Mother to be in contempt of the custody order and awarded Father $2500 in
counsel fees pursuant to the terms of the parties' agreed order of July 31, 2012.
PROCEDURAL HISTORY
This matter was initiated in this jurisdiction on April 201 2011, with the registration
of a detailed agreed custody order from Prince William County, Virginia, which was
I hereby certify that the foregoing
is a true copy of the originar as same
appears in the records of this Court this
1 /7'1 date C, - :>- -1 '-{
lY by: \1· \\, \h::\j~
Clerk of Court
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entered on February 22, 2010 {"the Virginia Order"}. The Virginia Order entered in 2010
superseded the first custody order entered in Virginia on December 19, 2005, and the
final visitation order entered by that court on July 17, 2006. The Virginia Order provided in
.. I , ' . '
pertinent part that Mother would maintain primary physical custody and was permitted
to relocate with the children to Philadelphia subject to Father's partial physical custody on
alternating wee'ltendsa·nc:(tspecific holidays as set forth in the order. In addition, the
parties were to continue to have shared legal custody of the children. The Virginia Order
also contained specific
•.
provisions
. . addressing
. .. transportation arrangements for exchange
of the children including a clause designating sites for pick-up and return of the children
and a clause allowing for modifications in the custody schedule in the event of bad
l,1 ' .,. '.• • •
weather ("Weather Clause"). The Weather Clauseprovided as follows:
~ -:
If either party reasonably determines that the weather would make driving
for Father's alternating weekend visitation exchange dangerous, then the parties
shall agree upon a make up visitation weekend for the Father to occur within thirty
(30) days of the missed weekend. If the parties do not agree upon the weekend
' immediately following the missed weekend (which would otherwise be Mother's
normal weekend), then the make up visitation shall occur on the next weekend
that would otherwise be Mother's normal weekend.
On June 29, 2011, and September 28, 2011, as the result of two separate Petitions
for Expedited Relief filed by Mother, this court entered orders modifying the
transportation arrangements between the parties with respect to the drop-off and pick-
up locations for exchange of the children, with the exchangeto occur at the respective
parties' homes, but did not disturb the other provisions of the Virginia Order. On January
17, 2012, pursuant to an order entered by the supervising judge of Family Court, this
matter was scheduled to be listed for a protracted hearing and all custody matters in this
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case were assigned to this judge. In addition, the order provided for mental health
evaluations by the court psychologist on both parties and all three children.
On July 31, 2012, the protracted hearing on the cross-petitions for contempt filed
by the parties did not take place as the parties were able to reach an agreement, which
was entered as an order of court. The agreed order of July 31, 2012, amended the
Virginia Order in part by setting forth a new schedule for holidays and establishing a new
site for return exchange of the children to Mother at the Chesapeake House in Maryland,
a rest stop along 1-95, roughly half-way between the parties' homes. Further, as part of
the agreed order of July 31, 2012, each party withdrew their respective contempt
petitions with the provision that "if either party files additional contempt petitions and
are found in contempt of court, they shall be sanctioned to pay punitive damages,to the
other party, in the amount of $2,500 plus counsel fees, if applicable." The parties further
agreed to attend individual counseling to promote better communication and co-
parenting between them.
On December 27, 2012, Mother filed a prose Petition to Modify Custody1and a
Petition for Contempt of Custody. Thereafter, on January 29, 2013, Father filed a prose
Answer and Counterclaim to Mother's Petition for Contempt and an Answer to Mother's
Petition to Modify Custody. On March 19, 2013, Mother through her attorney filed an
additional Petition to Modify Custody seeking sole legal and physical custody of the
children. These petitions were consolidated for the hearings held before this court, which
1
At the first hearing on August 21,2013, Mother withdrew her Petition to Modify Custody filed on
December 27, 2012, through an oral motion by her counsel as this petition dealt solely with a request for
modification of transportation arrangements due to Mother's medical issues that no longer existed.
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took place on August 21, 2013, September 30, 2013, November 14, 2013, and February
24, 2014. Furthermore, this court held an additional hearing on April 29, 2014, on
Father's Petition for Contempt filed through counsel on March 14, 2014, and Mother's pro
se Answer and Counterclaim filed on March 28, 2013.
On June 11, 2013, prior to the first hearing on Mother's Petition to Modify Custody
and the parties' respective Petitions for Contempt of Custody, this Court held a hearing on
Father's Petitlon for Special Relief for Enforcement of Subpoenas to Attend and Testify
filed on March 11, 2013. Father, through his counsel, had subpoenaed the Custodian of
Medical Records for Horsham Clinic and Mother's therapist as well as the Custodian of
Records of St. Christopher Children's Hospital, and the Custodian of Records of St.
Christopher Pediatric Urgent care. At the June 11, 2013 hearing, the medical records,
having been certified by the custodian of records for each entity, were submitted to the
court for in camera review. After receipt of the records, this court determined that,
pursuant to the Mental Health Procedures Act, 50 P.S. Section 7111(a), and the holding in
Gates v. Gates, 967 A.2d 1024 (Pa. Super. 2009), this court and counsel were precluded
from reviewing Mother's mental health records or allowing them to be introduced into
evidence without written consent from Mother and the records were returned to Mother.
We also determined that the records from St. Christopher Children's Hospital were
discoverable and that these records should be made available to the parties and their
respective counsel.
At the conclusion of four custody hearings, a hearing on November 14, 2013, for
an in camera interview of the children, and a hearing on Father's motion for special relief,
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this court entered an order on February 24, 2014, kept the record open for receipt of the
psychological evaluation of~ Gi6:1'."H, and held the decision on the case under
advisement. This court also heard testimony and admitted evidence in an additional
hearing on April 29, 2014, on Father's petition for contempt of the custody order and
Mother's Answer and Counterclaim. On June 3, 2014, this court entered its final order as
follows:
THIS COURT CONSIDERED THE TESTIMONY OF BOTH MOTHER AND FATHER AND
THEIR WITNESSES AND THE IN CAMERA TESTIMONY OF THE PARTIES' THREE CHILDREN
AND EVALUATED THE CREDIBILITY AND DEMEANOR OF ALL WITNESSES, REVIEWED AND
CONSIDERED THE DOCUMENTS ADMITTED INTO EVIDENCE BY EACH PARTY, AND
EVALUATED ALL THE FACTORS IN 23 PA. C.S. SECTION 5328, AND IN 23 PA. C.S. SECTION
5337. ALL PRIOR ORDERS ARE VACATED, EXCEPT FOR LANGUAGE IN PRIOR ORDERS THAT
IS INCORPORATED INTO THIS ORDER. THIS COURT ENTERS THE FOLLOWING ORDER
REGARDING THE PARTIES' OUTSTANDING PETITIONS FOR CONTEMPT AND TO MODIFY
CUSTODY:
THIS COURT FINDS MOTHER IN WILLFUL CONTEMPT OF THE CUSTODY ORDER OF
THIS COURT AS A RESULT OF HER WILLFUL REFUSAL TO TRANSPORT THE PARTIES'
CHILDREN TO FATHER ON FRIDAY, FEBRUARY 28, 2014. WITHIN NINETY (90) DAYS FROM
THE DATE OF THIS ORDER, MOTHER SHALL PAY THE SUM OF TWENTY-FIVE HUNDRED
DOLLARS ($2,500) IN COUNSEL FEES TO FATHER'S ATTORNEY, DAVID STEERMAN,
ESQUIRE, PURSUANT TO THE TERMS OF THE PARTIES' ORDER BY AGREEMENT ENTERED
ON JULY 31, 2012.
I. LEGAL CUSTODY:
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SHALL CONTINUE TO SHARE LEGAL CUSTODY OF THE MINOR CHILDREN, ~iRe/:149
C.Mit;r/M.L (DOB MARCH SI, 1999), ~C.'161:':fl!l!L (DOB JUNE,ri 2002), AND~
QM;VV'~LL (DOB FEBRUARY- 2005).
B. BOTH PARENTS SHALL HAVE EQUAL ACCESS TO EACH OF THE CHILDREN'S
SCHOOL RECORDS, INCLUDING BUT NOT LIMITED TO PROGRESS REPORTS, INTERIM
REPORTS, TEST RESULTS. CUSTODIAL PARENT SHALL SCAN ALL LETTERS AND NOTICES
RECEIVED FROM THE CHILDREN'S SCHOOL(S) AND EMAIL THEM TO THE NON-CUSTODIAL
PARENT WITHIN THREE DAYS OF RECEIPT.
C. BOTH PARENTS SHALL HAVE EQUAL ACCESS TO EACH OF THE CHILDREN'S
MEDICAL, DENTAL, AND PSYCHOLOGICAL RECORDS.
D. EACH PARENT SHOULD CONTINUE WITH INDIVIDUAL THERAPY TO ADDRESS
THEIR ANIMOSITY TOWARDS EACH OTHER.
E. MiR0/!ft Clil;tXD!l!'SHALL CONTINUE WITH HER INDIVIDUAL THERAPY UNTIL
DISCHARGED BY THERAPIST.
F. EXTRA-CURRICULAR AND SCHOOL ACTIVITIES
EACH PARENT SHALL FIRST CONSULT WITH THE OTHER PARENT PRIOR TO
ENROLLING ANY OF THE CHILDREN IN EXTRACURRICULAR ACTIVITIES. EACH PARENT MAY
ENROLL ANY OF THE CHILDREN INTO APPROPRIATE EXTRACURRICULAR ACTIVITIES, AFTER
CONSULTING WITH THE OTHER PARENT, DURINGHIS OR HER PRIMARY CUSTODIAL
PERIODS. EACH PARENT SHALL INFORM THE OTHER PARENT OF ALL EXTRACURRICULAR
AND SCHOOL EVENTS THAT THE CHILDREN ARE PARTICIPATING IN AS SOON AS THAT
PARENT KNOWS OF THE EVENT.
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II. PHYSICAL CUSTODY: .
A. EFFECTIVE AUGUST 31, 2014, THIS COURT TRANSFERS PRIMARY PHYSICAL
CUSTODY OF EM-ft¥'C~Wt'f!L AND ~C.Q.e';f:'~L TO FATHER WHO RESIDES IN
~ARYtAND. FATHER SHAL:L BE PERMITIED TO ENROLL liP:111:#SC.O.lu'o'ftL AND~
C~L IN HIS LOCAL SCHOOL DISTRICT FOR 2014-2015 SCHOOL YEAR PRIOR TO
AUGUST 31, 2014.
B. MOTHER SHALL CONTINUE TO HAVE PRIMARY PHYSICAL CUSTODY OF
Mfi'IR0/ffJ C1'§Vo !EL IN PHILADELPHIA, PA.
DURING THE CHILDRENS' SCHOOL YEAR:
C. MOTHER SHALL HAVE PARTIAL PHYSICAL CUSTODY OF~ AND~ ON
ALTERNATING WEEKENDS DURING THE CHILDREN'S SCHOOL YEAR, EFFECTIVE THE FIRST
FRIDAY AFTER LABOR DAY AT 8:00 P.M. UNTIL THE FOLLOWING SUNDAY AT 8:00 P.M. IF
THE MINOR CHILDREN DO NOT HAVE SCHOOL ON A DAY/DAYS THAT ARE CONNECTED TO
MOTHER'S WEEKEND•FOR A~Y REASON, AND WITH ADVANCE NOTICE TO FATHER,
MOTHER'S PARTIAL PHYSICAL SHALL COMMENCE AT 8:00 PM ON THE CHILDREN'S LAST
DAY OF SCHOOL AND SHALL END AT 8:00 PM ON THE DAY BEFORE SCHOOL RESUMES. BY
WAY OF EXAMPLE AND ILLUSTRATION ONLY: IF THE CHILDREN DO NOT HAVE SCHOOL ON
A FRIDAY AND/OR A MONDAY CONNECTED TO ONE OF MOTHER'S WEEKENDS, FATHER
SHALL HAVE CUSTODY FROM 8:00 PM ON THURSDAY AND/OR UNTIL 8:00 PM ON
MONDAY.
D. FATHER SHALL HAVE PARTIAL PHYSICAL CUSTODY OF MQR~ IN
MARYLAND ONE WEEKEND EACH MONTH DURING HIS WEEKENDS WITHE~ AND
. Cc.I!@ MOTHER SHALL NOTIFY FATHER IN WRITING BY THE FIRST DAY OF EACH MONTH OF
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WHICH WEEKEND Mi-Re:lff'd WILL TRAVEL TO MARYLAND TO SPEND WITH FATHER AND
HER SIBLINGS. FATHER SHALL HAVE AT LEAST TWO WEEKS OF CUSTODY WITH MQµ.€~
DURING SUMMER VACATION WHEN HE HAS CUSTODY OF E~ AND~
DURING SUMMER VACATION:
9 'E. IN 2014, FATHER SHALL HAVE CUSTODY OF ALL THREE CHILDREN FROM
JUNE 20, 2014, AT 8:00 P.M. UNTIL JUNE 27, 2014, AT 8:00 P.M. MOTHER SHALL HAVE
PHYSICAL CUSTODY OF E~ AND ~URING SUMMER RECESS, FOR THE FIRST TWO
WEEKS OF JL:lLY, BEGINNING AT 8:00 P.M. ON THE FRIDAY PRIOR TO JULY 4TH, AND
ENDING 14 DAYS LATER (IN 2014, JUNE 27-JULY 11, AND COMPARABLE DATES IN
SUBSEQUENT YEARS) AND THE FIRST TWO WEEKS OF AUGUST, FROM THE FIRST FRIDAY
AT 8:00 P.M. UNTIL 14 DAYS LATER (IN 2014, AUGUST 1- AUGUST 15) AND COMPARABLE
DATES IN SUBSEQUENT YEARS}. FATHER SHALL HAVE CUSTODY OF ALL THREE CHILDREN
THE REMAINING TIME IN JULY AND AUGUST, UNTIL LABOR DAY WEEKEND.
D. HOLIDAYS AND SCHOOL VACATION BREAKS:
MOTHER: IN 2014 AND EVEN-NUMBERED YEARS; FATHER IN 2015 AND ODD-
NUMBERED YEARS:
FROM 8:00 PM ON THE LAST DAY OF SCHOOL PRIOR TO EASTER/SPRING
VACATION UNTIL 8:00 PM ON THE THURSDAY BEFORE EASTER SUNDAY.
THANKSGIVING VACATION FROM THE WEDNESDAY PRECEDING THANKSGIVING
DAY AT 8:00 PM AND ENDING ON SUNDAY AFTER THANKSGIVING DAY AT 8:00 PM;
CHRISTMAS/WINTER BREAK FROM 8:00PM ON DECEMBER 27TH UNTIL 8:00PM
ON THE DAY BEFORE SCHOOL RESUMES.
• >
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FATHER: IN 2014 AND EVEN-NUMBERED YEARS; MOTHER IN 2015 AND ODD-
NUMBERED YEARS:
THURSDAY BEFORE EASTER SUNDAY AT 8:00 PM UNTIL EASTER SUNDAY AT 8:00
PM.
CHRISTMAS/WINTER BREAK FROM 8:00 PM ON THE LAST DAY OF SCHOOL BEFORE
THE BREAK BEGINS UNTIL 8:00 PM ON DECEMBER 27TH.
EVERY YEAR FOR FATHER1S DAY/MOTHER'S DAY:
FATHER SHALL HAVE CUSTODY OF THE CHILDREN ON FATHER'S DAY WEEKEND
EACH YEAR FROM FRIDAY AT 8:00 PM UNTIL SUNDAY AT 8:00 PM.
MOTHER SHALL HAVE CUSTODY OF THE CHILDREN ON MOTHER'S DAY WEEKEND
EACH YEAR FROM FRIDAY AT 8:00 PM UNTIL SUNDAY AT 8:00 PM.
ALL HOLIDAY AND CUSTODIAL PERIODS SET FORTH ABOVE SHALL TAKE
PRECEDENCE OVER REGULAR WEEKEND CUSTODY, BUT SHALL NOT ALTER THE PATTERN
OF REGULAR ALTERNATE WEEKEND CUSTODY.
E. TRANSPORTATION:
MOTHER AND FATHER SHALL EXCHANGE THE CHILDREN, INCLUDING MQ~GAN-
FOR FATHER'S CUSTODIAL PERIOD, AT THE BEGINNING AND END OF EACH PARENT'S
CUSTODIAL PERIOD AT THE CHESAPEAKE HOUSE SERVICE CENTER ON 1-95. PARTIES MAY
CHANGE THE LOCATION OF THE EXCHANGE ON CERTAIN OCCASIONS lF THEY MUTUALLY
AGREE IN WRITING. EITHER MOTHER OR FATHER MAY DESIGNATE A RESPONSIBLE ADULT
TO TRANSPORT THE CHILDREN OR TO BE PRESENT FOR THE EXCHANGE OF THE CHILDREN
PROVIDED THEY GIVE THE OTHER PARTY ADVANCED NOTICE.
F. TELEPHONIC AND ELECTRONIC COMMUNITCATIONS
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1. CHILDREN MAY USE THEIR INDIVIDUAL MOBILE TELEPHONES, THE PARENTS'
LANDLINES OR MOBILE TELEPHONES, OR ANY ELECTRONIC DEVICES TO CONTACT EITHER
PARENT OR STEPPARENT WHILE IN THE OTHER PARENT'S CUSTODY. THE NON-CUSTODIAL
PARENT SHALL NOT CONTACT THE CHILDREN WHILE IN THE CUSTODIAL PARENT'S
CUSTODY, UNLESS THERE IS AN EMERGENCY.
2. THE COURT ADMONISHES BOTH PARTIES REGARDING THEIR
COMMUNICATIONS WITH THE CHILDREN AND DIRECTS THAT NEITHER PARTY SHALL
DISCUSS THE CUSTODY LITIGATION WITH ANY OF THE CHILDREN, INCLUDING MAKING
COMMENTS TO THE CHILDREN ABOUT THE CONTENTS OF THIS ORDER. NEITHER PARTY
NOR STEP-PARENTS SHALL MAKE ANY DEROGATORY REMARKS ABOUT THE OTHER
PARENT OR STEP-PARENT IN THE PRESENCE OF THE CHILDREN OR VIA TEXT MESSAGING,
TELEPHONE CALLS, OR ELECTRONIC COMMUNICATION. VIOLATION OF THIS ORDER SHALL
RESULT lN IMPOSITION OF SEVERE SANCTIONS.
G. EACH PARENT SHALL PROVIDE THE OTHER WITH ADVANCED WRITIEN NOTICE
IF THE CHILDREN WILL BE SLEEPING OVERNIGHT OUTSIDE OF THE STATE OF THEIR
RESIDENCES, INCLUDING THE DATES OF TRAVEL, THE ADDRESS(ES) WHERE THE CHILDREN
WILL BE STAYING AND TELEPHONE NUMBERS WHERE THE CHILDREN CAN BE REACHED.
Ill. JURISDICTION AND RELOCATION:
A.PENNSYLVANIA RETAINS JURISDICTION OF ALL CUSTODY PLEADINGS BY EITHER
PARENT.
B. UNTIL SUCH TIME AS THE MINOR CHILDREN ARE FULLY EMANCIPATED, EACH
PARENT SHALL AT ALL TIMES KEEP THE OTHER PARENT APPRISED OF HIS OR HER
RESIDENTIAL ADDRESS AND TELEPHONE NUMBER (BOTH LAND LINE, IF ANY, AND CELL
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PHONE) AND SHALL PROMPTLY NOTIFY THE OTHER PARENT AND THE COURT IN WRITING,
IN ACCORDANCE WITH 23 PA. C.S. SECTION 5337, PRIOR TO AN INTENDED CHANGE
THEREOF (BY PROVIDING THE INTENDED DATE OF CHANGE OF ADDRESS, THE SPECIFIC
STREET, ROUTE ADDRESS, CITY OR COUNTY, STATE AND ZIP CODE AND PHONE NUMBER
OF THE INTENDED NEW ADDRESS), IN THE EVENT THAT EITHER PARTY INTENDS TO
PERMANENTLY CHANGE HIS OR HER RESIDENCE.
C. NEITHER SHALL MOVE THEIR RESIDENCE MORE THAN 15 MILES FARTHER AWAY
THAN THE PRESENT DISTANCES BETWEEN THEIR CURRENT RESIDENCES. IF EITHER PARTY
DETERMINES THAT IT IS NECESSARY TO RELOCATE HIS OR HER RESIDENCE, PARTIES ARE
OBLIGATED TO COMPLY WITH PENNSYLVANIA'S RELOCATION STATUTE AT 23 PA. C.S.
SECTION 5337 AND THE APPLICABLE PENNSYLVANIA RULES OF CIVIL PROCEDURE.
IV. SECTION 5328 FACTORS:
THE COURT MADE THE FOLLOWING FINDINGS PURSUANT TO THE FACTORS
FOUND IN SECTION 5328 OF THE CUSTODY ACT:
(1) WHICH PARTY IS MORE LIKELY TO ENCOURAGE AND PERMIT FREQUENT AND
CONTINUING CONTACT BETWEEN THE CHILD AND ANOTHER PARTY. THE COURT FINDS
THAT FATHER IS MORE LIKELY TO ENCOURAGE AND PERMIT FREQUENT AND CONTINUING
CONTACT BETWEEN THE CHILDREN AND MOTHER. THE COURT FINDS THAT MOTHER HAS
DELIBERATELY INTERFERED WITH FATHER1S CUSTODY OF THE CHILDREN, NOT ONLY
REGARDING HIS TIME SPENT WITH THE CHILDREN, BUT THAT SHE HAS INTEREFERED WITH
THE QUALITY OF THE TIME THAT HE SPENDS WITH THE CHILDREN.
(2) THE PRESENT AND PAST ABUSE COMMIITED BY A PARTY OR MEMBER OF THE
PARTY'S HOUSEHOLD, WHETHER THERE IS A CONTINUED RISK OF HARM TO THE CHILD OR
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AN ABUSED PARTY AND WHICH PARTY CAN BETTER PROVIDE ADEQUATE PHYSICAL
SAFEGUARDS AND SUPERVISION OF THE CHILD. DESPITE MOTHER1S FILING A PETITION
FOR PROTECTION FROM ABUSE ON BEHALF OF MINOR CHILD~ AGAINST FATHER
DURING THE PENDENCY OF THJS CUSTODY LITIGATION, THIS FACTOR DOES NOT APPLY AS
THE PETITION WAS WITHDRAWN AND NO FINAL ORDER WAS ENTERED. MOREOVER, NO
CREDIBLE EVIDENCE WAS PRESENTED THAT FATHER POSES A RISK OF HARM TO THE
CHILDREN.
(3) THE PARENTAL DUTIES PERFORMED BY EACH PARTY ON BEHALF OF THE CHILD.
BOTH PARENTS HAVE DEMONSTRATED THAT THEY ARE CAPABLE OF AND HAVE BEEN
PERFORMING PARENTAL DUTIES ON BEHALF OF EACH CHILD.
(4) THE NEED FOR STABILITY AND CONTINUITY IN THE CHILD'S EDUCATION,
FAMILY LIFE AND COMMUNITY LIFE. THE COURT CAREFULLY CONSIDERED THIS FACTOR
PRIOR TO TRANSFERRING CUSTODY, THE COURT GAVE WEIGHT TO THE OVERALL
PHYSICAL AND EMOTIONAL WELL-BEING OF EACH CHILD. THE COURT DETERMINED THAT
THE CHILDREN HAVE STABILITY IN THEIR FAMILY LIFE AND COMMUNITY LIFE WITH
FATHER.
(5) THE AVAILABILITY OF EXTENDED FAMILY. EACH PARENT HAS REMARRIED.
THERE WAS LITTLE TESTIMONY OF OTHER EXTENDED FAMILY, SO THIS FACTOR WAS NOT
RELEVANT.
(6) THE CHILD'S SIBLING RELATIONSHIPS. THE PARTIES HAVE THREE BIOLOGICAL
CHILDREN TOGETHER. FATHER AND HIS WIFE HAVE A TWO-YEAR-OLD SON. DUE TO THE
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\
THE COURT DETERMINED THAT THE BEST INTERESTS OF THE TWO YOUNGER CHILDEN
WOULD BE SERVED BY TRANSFERRING CUSTODY OF THEM TO FATHER.
(7) THE WELL-REASONED PREFERENCE OF THE CHILD, BASED ON THE CHILD'S
MATURITY AND JUDGMENT. NEITHER E~ NOR ~XPRESSED A PREFERENCE.
M~, ON THE OTHER HAND, CONSISTENTLY HAS EXPRESSED HER DESIRE NOT TO SEE
FATHER. THIS COURT DETERMINED THAT HER PREFERENCE, ALTHOUGH NOT
PARTICULARLY WELL-REASONED, INTERFERES SUBSTANTIALLY WITH FATHER'S CUSTODY
OF THE TWO YOUNGER CHILDREN.
(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. THIS COURT FINDS
THAT MOTHER HAS MADE CONSISTENT ATTEMPTS TO THWART CUSTODY BETWEEN
FATHER AND THE CHILDREN, AND IN THE SITUATION WITH MEl~e:IA!\I, HAS SUCCEEDED.
{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. THE COURT FINDS THAT FATHER IS MORE LIKELY TO MAINTAIN A
LOVING, STABLE, CONSISTENfAND NURTURING RELATIONSHIP WITH THE CHILDREN
WHICH IS MORE THAN ADEQUATE FOR THEIR EMOTIONAL NEEDS.
(10) WHICH PARTY IS MORE LIKELY TO ATTEND TO THE DAILY PHYSICAL,
EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL AND SPECIAL NEEDS OF THE CHILD. BOTH
PARTIES HAVE DEMONSTRATED THEIR CAPABILITIES IN THIS AREA. HOWEVER, THIS
COURT DETERMINED THAT MOTHER'S ANIMOSITY TOWARDS FATHER SEEMS TO BE ·
EXACERBATING THE CHILDREN'S PSYCHOLOGICAL ISSUES.
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(11) THE PROXIMITY OF THE RESIDENCES OF THE PARTIES. MOTHER NOW RESIDES
IN PHILADELPHIA. FATHER RESIDES OUTSIDE OF BALTIMORE, IN DUNDALK, MARYLAND.
THE DISTANCE IS 110 MILES AND IS APPROXIMATELY A TWO-HOUR DRIVE. rr IS
SIGNIFICANT TO NOTE THAT BEFORE MOTHER MOVED TO PHILADELPHIA, SHE RESIDED JN
PRINCE WILLIAM COUNTY, VIRGINIA, WHERE THE PARTIES APPEARED FOR RELOCATION
HEARINGS. ON FEBRUARY 22, 2010, THE PARTIES' FINAL ORDER WAS ENTERED AND
SUBSEQUENTLY REGISTERED IN PHILADELPHIA COUNTY, PENNSYLVANIA.
(12) EACH PARTY'S AVAILABILITY TO CARE FOR THE CHILD OR ABILITY TO MAKE
APPROPRIATE CHILD-CARE ARRANGEMENTS. BOTH PARENTS' AVAILABILITY TO CARE FOR
THE CHILDREN HAS BEEN ADEQUATE.
(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. THIS COURT FINDS
THAT THE PARTIES HAVE A DIFFICULT TIME IN COMMUNICATING BASIC INFORMATION
REGARDING THE CHILDREN. MOTHER TENDS TO MAKE DECISIONS UNILATERALLY, SUCH
AS IN HER DECISIONS TO WITHHOLD FATHER'S CUSTODY, AND FREQUENTLY CHANGES
HER MIND ABOUT DECISIONS. FATHER TENDS TO MAKE CLEAR DECISIONS, BUT DOES NOT
ALWAYS COMMUNICATE HIS DECSIONS TO MOTHER AS QUICKLY AS SHE WOULD LIKE HIM
TO DO.
{14) THE HISTORY OF DRUG OR ALCOHOL ABUSE OF A PARTY OR MEMBER OF A
PARTY'S HOUSEHOLD. THIS FACTOR DOES NOT APPLY.
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(15} THE MENTAL AND PHYSICAL CONDITION OF A PARTY OR MEMBER OF A
PARTY'S HOUSEHOLD.
MSC'I\J HAS BEEN EVALUATED BY A PSYCHOLOGIST WHO DIAGNOSED HER WITH
AN ANXIETY DISORDER. MOTHER TESTIFIED THAT SHE BELIEVES THAT THE TWO YOUNGER
CHILDREN ARE SUFFERING FROM ANXIETY, WHICH FATHER CONTESTED. MOTHER ALSO
TESTIFIED~ HAS BEEN DIAGNOSED BY A PHYSICIAN WITH ENCOPRESIS.
(16} ANY OTHER RELEVANT FACTOR. THIS COURT CONSIDERED THE FACT THAT
FATHER HAS BEEN RESIDING IN MARYLAND DURING THE PENDENCY OF THE PREVIOUS
CUSTODY ORDERS. THE COURT ALSO CONSIDERED THE PREVIOUS ORDERS, INCLUDING
THE RELOCATION ORDER FROM THE COURT IN VIRGINIA. THIS COURT DETERMINED THAT
THE RELOCATION FACTORS IN SECTION 5337 OF THE CUSTODY ACT DO NOT APPLY.
ESSENTIALLY, THE COURT IS REVERSING THE PRIMARY CUSTODY OF THE TWO YOUNGER
CHILDREN FROM MOTHER TO FATHER.
Thereafter, on June 25, 2014, Mother through her counsel, filed a Petition for
Reconsideration of the June 3, 2014 Order and an Application for Stay of Order Pending
Appeal. On the same date, Mother's counsel filed the instant timely Children's Fast Track
appeal. On July 9, 2014, Father's counsel filed responses to Mother's Petition for
Reconsideration and Application for Stay of Order Pending Appeal. On July 18, 2014, this
Court granted Mother's Petition for Reconsideration. Due to the fact that this Court's
order granting reconsideration was not entered within the thirty (30} day timeframe
under Pa. R.A.P. 903 for the filing of an appeal, this court no longer had jurisdiction to
proceed in this matter. However, pursuant to Pa. R.A.P. 1701{b)(1), we retained
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jurisdiction to proceed on Mother's Application for Stay of Order Pending Appeal, which
was denied after hearing oral argument at the hearing on July 31, 2014.
FACTUAL BACKGROUND
Mother and Father were formerly married and resided in Prince William County,
Virginia, with their three children, M~ C~, age fourteen, E~ c~, age
twelve, and C- C~, age nine. Since the parties' separation, the children have
resided primarily with Mother. After the parties divorced, Mother remarried in December
2009, and moved to Philadelphia, Pennsylvania,with the children to join her new
husband, J~ W~ (I/Stepfather"). The Virginia Order, entered by agreement of
the parties, allowed Mother to relocate with the children. Mother's household consists of
Stepfather and the three children. In addition, eight weeks a year, Mother's eight year old
stepdaughter, A~ lives with them. (Notes of Testimony, ("N.T.") 8/21/13,p. 5).
Mother works for Arbitron recruiting panelists to participate in radio and television
ratings. Mother conducts her administrative duties from her home office, but is also
required to travel on field work to try to recruit people to participate in ratings. (N.T.
8/21/13, at 7). Mother testified that she works out of her home approximately three
weeks per month and is traveling doing field work on an average of two to two-and-one-
half days per month while the children are in her custody. (N.T. 8/21/13, at 7-8, 101-103).
Mother further testified that her work schedule is flexible so that she is able to arrange
her travel during those weekends when the children are with Father and, on those days
that she is working and unavailable to care for the children, Stepfather is available to care
for them, (N.T. 8/21/13, at 7-8, 122). At the time of the February 24, 2014, Mother had
been laid off from work and was looking for a new position. (N.T. 2/24/14, at 32-33).
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Mother also has issues with depression and testified to admitting herself voluntarily to
the Horsham Clinic in August 2012 for four days because she was feeling overwhelmed by
the ongoing custody litigation. {N.T. 8/21/13, at 75-76}. Mother is currently being treated
with anti-depressants. (N.T. 8/21/13, at 76).
Stepfather is an Episcopal priest, and was employed with the All Saints Episcopal
Church for a period of two years. (N.T. 9/30/13, at 3-4). Stepfather is no longer employed
by the church and is currently involved ih a defamation suit against the church. (N.T.
8/21/13, at 9-10, 122). At the time of the August 21, 2013, hearing, Stepfather was
unemployed but had previously been working in sales for several years. (N.T. 8/21/13, at
9-10). At the February 24, 2014, hearing, Stepfather was working twelve hour shifts at a
job one and one half hours away and only spending four nights a week at home. (N.T.
2/24/14, at 34). Stepfather testified that he is currently being treated for depression and
that the stress resulting from termination of his position with the church was impacting
his relationship with Mother. (N.T. 9/30/13, at 11-12, 23-24). Furthermore, Mother
testified that she and Stepfather were currently involved in marriage counseling. (N.T.
8/21/13, at 74}.
Father resides in Dundalk, Maryland, where he lives with his current Wife, Aflllfll/"
c~ ("Stepmother'), and their eighteen-month-old son, K~. Father has been
employed outside the home with a defense contractor working in the information
technology field for the last three years. (N.T. 8/21/13, at 194). Father's work hours are
typically from 7:00 a.m. to 3:00 p.m., but Father testified to having a lot of flexibility in his
hours. (N.T. 8/21/13, at 194). Stepmother works fulltime from 9:00 a.m. to 5:00 p.m. in
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marketing for a physician's magazine, where she has been employed for seven years.
(N.T. 8/21/13, at 194}, (N.T. 9/30/13, at 116). Stepmother testified that she has known
the callflllli children since 2007 and that they have a good relationship. {N.T. 9/30/13, at
109-111).
skipped a grade in school becauseshe had been in a gifted program In Virginia and there
was no gifted program in the school she would be attending in Philadelphia. (N.T.
8/21/13, at 6). M~ currently attends school at the Science LeadershipAcademy and
Mother stated that~ was having some problems adjusting to high school. (N.T.
8/21/13, at 5, 130}, (See Ex. F-7, 8/21/13). Mother further stated E... does well in school
and would be entering the sixth grade and that c• is an excellent student with A's and
B's and would be entering the third grade. (N.T. 8/21/13, at 65-66). In addition, the
children are involved in numerous activities with~ participating in cheerleading,
Girl Scouts,dance and the Gay/Straight Alliance at school. (N.T. 8/21/13, at 65-66).
E'fN's activities include gymnastics, singing in the school choir and Girl Scouts and Ctft is
involved in Cub Scouts and soccer. (N.T. 8/21/13, at 67-68). Although Father resides in
Maryland, he made the effort to transport C,1t to his soccer games in Philadelphia, during
his custodial periods and, on occasion, attended the children's events, (N.T. 9/30/13, at
91, 95-96).
The oldest child, M~, was experiencingongoing psychologicalproblems during
the course of the multiple hearings before this court. Mother testified at the hearing on
August 21, 2013, that M.._was having problems adjusting to her new school and
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dealing with her conflict-ridden relationship with Father. {N.T. 8/21/13, at 5, 155}, (See
Ex.F-7, 8/21/13). In addition, Mother testified that MliWii8Ml had been in therapy "off and
on" with three different therapists since moving to Philadelphia from northern Virginia
three and one-half years ago. (N.T. 8/21/13, at 110-111}. Moreover, both parties became
aware of tweets posted on M~s Twitter account in March of 2013, stating, ''I wish I
were dead," "Guys, I'm dropping out of high school to be a stripper," and "I'm so
emotionally done; is this over yet." (N.T. 8/21/13, at 86-89, 209) (See Ex. F-1, 8/21/13).
Father testified that upon seeing M~s tweets threatening to harm herself, he
contacted Mother to determine what could be done to help MfiMiii!IR but Mother did not
want to engage in a discussion with Father and told him the situation was being dealt
with. (N.T. 8/21/13,at 209-210). In addition, Mother acknowledged receiving a text from
Stepfather on August 18, 2013, expressing concern about M~ and suggesting that
M~ see a psychiatrist after Stepfather found blood in her bed that was "not
menstrual blood." (N.T. 8/21/13, at 128-129). Mother testified that she did not inform
Father about the incident because she believed the blood was "the resu It of bug bites."
(N.T. 8/21/13, at 128-129), (N.T. 9/30/13, at 62), (See Ex. F-20, 9/30/13).
Father stated that his relationship with M9'11!1111' had become "strained" and since
July 2012, the relationship had diminished to the point where there was no regular
communication between them. (N.T. 8/21/13, at 195-196). Father attributed as one of
the causes for his poor relationship with M~ to his belief that Mother was projecting
her anger towards Father onto M~ (N.T. 8/21/13, at 195-196). Furthermore, Father
testified to numerous phone calls between Mother and M~during his custody
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periods where afterwards M~ would be agitated to the point where it would have a
negative impact on the remainder of her visit and disrupt Father's custodial time with the
other children. (N.T. 8/21/13, at 196-197). As a result, Father decided in February or
March 2013, to take the children's phones away during his custody time and only allow
the use of phones on a limited basis. (N.T. 8/21/13, at 197-198). Mother admitted that
she and MQi@8fl'had frequent phone contact during Father's custody periods prior to the
implementation of Father's "no phone policy" and that she would usually text Father to
ask when Ea.., or C.li@ would be available by phone, or, on occasion receive calls from
them directly from Father's mobile phone. (N.T. 8/21/13,at 16, 94-97).
Mother testified to the deterioration of Father's relationship with M~ as the
direct result of Father's abusive language towards~ (N.T. 8/21/13, at 20, 28, 33-
34), Father's disparate treatment of Mali@M'I by favoring the other children with more gifts
and Father's exclusion of M~ from family activities as a form of punishment. (N.T.
8/21/13, at 39-41). Mother further stated that Father refused to communicate with her
on these issues so she encouraged ~ to communicate her feelings directly with
Father. (N.T. 8/21/13, at 34). Mother testified to an incident on January 20, 2013, when
the children were on a visit with Father. At the time of the incident, Mother was on a
phone call with M~ and testified that MQi8MII was "very upset" because she "had had
a very difficult weekend" at Father's house. (N.T. 8/21/13, at 43). According to Mother's
version of the event, Father came in to M~'s room while MglWIM' was on the phone
and asked her if she wanted to go to the bakery with the rest of the family. When M~
refused, Father dragged M~ by her left arm off her bed and down the stairs and
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across the lawn to the family vehicle. (N.T. 8/21/13, at 45). Mother stated that by the
time the call dropped, it "sounded like a physical altercation was taking place." (N.T.
8/21/13, at 45). As a result, Mother contacted the Baltimore police, who arrived on the
scene. (N.T. 8/21/13, at 46). Mother testified that she did call Father to determine what
happened but that she never received an explanation from Father. (N.T. 8/21/13, at 49).
Father recounted the incident on January 20, 2013, somewhat differently stating
that he entered ~'s bedroom because she was "yelling" and obviously upset while
on a phone call with Mother that lasted in excess of twenty minutes. (N.T. 8/21/13, at
226-227). After MQll!lln refused to end the call, Father grabbed the phone from M~
and left the room. (N.T. 8/21/13, at 227). Later that afternoon, Father had plans to go on
a family outing to a bakery and wanted to include MQii8en. When Mlillli8Wl refused to go,
Father grabbed one of M""""''s hands but M~ became resistive. (N.T. 8/21/13, at
227-228). As a result a struggle ensued where Father had to physically remove ~Aareiel'\
from the house into the family vehicle. (N.T. 8/21/13, at 228-229). Father explained his
actions stating that he had safety concerns leaving~ ., alone in the house and that
"when a parent, me especially, tells her what to do, especially when it's well within the
realm of reasonable, she needs to comply." (N.T. 8/21/13, at 228-229).
When M~ returned from her visit with Father, Mother stated that she took
her to St. Christopher urgent care center because~ was complaining of severe pain
in her left wrist. (N.T. 8/21/13, at 46-47). {See Ex. M-1, M-2, 8/21/13). As a result of this
incident, Mother filed a Protection from Abuse action ("PFA") on behalf of M~ against
Father on January 22, 2013. (See Ex. M-6, 8/21/13). A temporary PFA order for
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protection and eviction was entered against Father on the same day. Thereafter, on
February 25, 2013, this court entered an order temporarily suspending Father's custodial
time with MQi8Ml. The temporary PFA was modified by agreement of the parties on
March 19, 2011, to protection only, to allow Father to participate in therapy with M~
On August 21, 2013, the PFA was withdrawn. (See Ex. M-7, 8/21/13}.
Following this court's order of February 25, 2013, the children were enrolled in
counseling. Mother chose to take the children to Adam Berman, Psy.D.1 who met with the
children and prepared a treatment summary for each child. (N.T. 8/21/13, p. 156}, (See
M-3,M-4, M-5, 8/21/13}. Dr. Berman testified at the August 21, 2013, hearing that he had
twelve sessionswith M..-n with the first sessiontaking place on April 8, 2013. (N.T.
8/21/13, p. 174}. In addition, Dr. Berman conducted five sessionswith ElilllWt' and two
sessionswith~. (N.T. 8/21/13, at 175). Dr. Berman stated that the frequency of his
sessionswith M~ was related to the concerns regarding her school performance and
other difficulties she was experiencing. (N.T. 8/21/13, at 175-176). In the overall findings
of his treatment summary for M~, Dr. Berman concluded in part that M~ has "a
higher than average overall intelligence" and "no suicidal ideation". (See Ex. M-3,
8/21/13}. Further, Dr. Berman stated that, in spite of the fact that he was able to make
progress related to M~'s school work and socialization, M~ was adamant in her
refusal to joint counseling sessionsinvolving her Father. (N.T. 8/21/13, at 177-178}. Dr.
Berman stated that he had a few joint sessionsinvolving the children and Mother and
Stepfather, when he thought it was appropriate. (N.T. 8/21/13, at 183). Although Father
was not involved in any of the sessionswith the children, Dr. Berman stated that Father
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contacted him on a regular basis to obtain information on the progress of the sessions.
(N.T. 8/21/13, at 184).
On August 22, 2013, this court entered an order, which provided in pertinent part
that none of the children were to have use of their individual mobile phones, the parents'
land lines or any other electronic devices to contact either parent or stepparent while in
the other parent's custody unless the children are with the custodial parent for more than
four consecutive days. The order also prohibited either parent from having telephone,
text message or email contact with the children while the children are in the other
parent's custody. Further, this court established a set schedule for contact by the children
with the noncustodial parent after the children have been with the other parent for more
than four days. Father testified that subsequent to the institution of the ban on the
children's electronic devices, the quality of his custodial time improved and everyone was
getting along well. (N.T. 9/30/13, at 23-24).
The order of August 22, 2013, vacated a portion of this court's previous order of
February 25, 2013, suspending Father's custody of M~ as a resu It of the withdrawal of
the PFA on behalf of MiJ9n. The order of August 22, 2013, also required Father to
participate in therapy with M~ on a regular basiswith Adam Berman, Psy.D.,who had
previously been involved in individual therapy with all three children, or any subsequent
licensed psychologist or therapist.
As the result of this court's order of August 22, 2013, Father participated in joint
therapy sessionswith M~ and Dr. Berman. Father testified that the first session,
which was arranged by Mother, went poorly and that M-.iri was "belligerent" and
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"disrespectful" to both Father and Dr. Berman. (N.T. 9/30/13, at 24-25}. M~n later
told Father that she was upset that she had to be removed early from school to attend the
session and miss her dance class. (N.T. 9/30/13, at 26}. Father attended a second
counseling session with Mf¥81'n, but the preceding weekend M764 A.2d 623 (Pa. Super. 2000). In applying
this standard the appellate court must accept the findings of the trial court if they are
supported by competent evidence and cannot substitute its own factual determinations.
In addition, on issues of credibility and weight of the evidence, the appellate court must
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defer to the trial court judge who had the opportunity to observe the witnesses first-
hand. C.R.F., Ill v. S.E.F., 45 A.3'd, 441, 443 (Pa. Super. 2012).
The primary concern in any custody determination is the best interests of the child,
which must be decided on a case-by-case basis and which must take into consideration
all the factors that legitimately have an effect upon the child's physical, intellectual,
moral and spiritual well-being. Saintz v. Rinker, 902 A.20 509, 512 (Pa. Super. 2006).
Moreover, as part of the best interest analysis, it is incumbent upon the trial court to
consider the relevant factors set forth at 23 Pa.C.S. Section 5328 (a). E.D. v. M.P., 33 A.3d
73, 80 (Pa.Super. 2011).
In the instant case, over the course of five days of hearings, this court took into
consideration the credibility of the parties and their respective witnesses, reviewed the
exhibits and interviewed the three children in camera. The oldest child, ~, was
interviewed on two separate occasions by this court as the result of her ongoing
emotional and psychological issues as evidenced in the record of these proceedings.
This court entered its order of June 3, 2014, after thorough and thoughtful
consideration of all the relevant factors under Section 5328(a) and expressly stated its
analysis of the relevant factors in its order.
Mother avers in her first issue on appeal that this court erred as a matter of law
and fact when it transferred primary physical custody of the parties' two younger
children to Father. In applying the relevant factors under Section 5328, this court
determined that Father's household offers more stability for the children. Both Father
and Stepmother hold stable jobs with somewhat flexible hours, which enable them to
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be available for the children on a more consistent basis. Conversely, Mother's
household does not offer the same stability as both she and Stepfather were
employed in jobs requiring travel from the home. In addition, this court has concerns
regarding the mental stability of Mother and Stepfather and how this might interfere
with their parenting obligations. Both Mother and Stepfather testified to being
treated for depression. (N.T. 8/21/13 at 76), (N.T. 9/30/13 at 11-12). During the
course of this custody proceeding, Mother voluntarily admitted herself into the
Horsham Clinic as the result of feeling overwhelmed. (N.T. 8/21/13 at 75-76).
Moreover, Mother and Stepfather had separated at one point and were involved in
marriage counseling at the time of these proceedings. (N.T. 8/21/13 at 74).
Consequently, this court has concerns that the stress in Mother's household has had a
negative impact on the two younger children, who have already shown signs of
anxiety in Mother's household. The record shows that Qlfe is currently experiencing
encopresisin Mother's household and ~ is having issues in school. Based on these
findings, this court determined not only that Father is more likely to more likely to
maintain a consistent and nurturing relationship with the two younger children, but
that the children will thrive under his custodial care.
This court considered Mother's animosity towards Father and her pervasive
attempts to alienate the children from Father. The record is replete with instances
where Mother intentionally interfered with the Father's relationship with the children.
In direct contravention to the existing custody order, Mother suspended Fathers'
partial custody with c• and E,ff~ during January and February of 2013, becauseof
the temporary protection order against Father on behalf of Miiii r~e:M. Another instance
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occurred on February 28, 2014, when this court told Mother's counsel to tell Mother
to transport the children for Father's custody weekend. Nevertheless, Mother refused
claiming the forecast of a snowstorm on the following Sunday, March 2nd, prevented
her. As a result, Father did not have custody of Ettllr and G4'IIJ that weekend and they
missed c•s and K.s birthday celebrations which Father had planned in advance.
This court also considered Mother's attempts to interfere with the quality of the
time that Father spends with the children. Prior to the court-ordered ban on
electronic devices, Mother had frequent communications with the children, especially
f\Gie: ~11, which were disruptive to Father's custody periods. Mother also interfered
with Father's attempts to improve his relationship with M~ by unilaterally
terminating the court-ordered joint therapy sessions with Dr. Berman and by denying
Father any access to medical and psychiatric information concerning~·
The Superior Court has held that a custodial parent's obstruction of the
noncustodial parent's right to visit a child may serve as a basis for a change in custody.
Kozlowksi v. Kozlowski, 524 A.2d 995, 997 (Pa.Super. 1987} (citing Pamela J.K. v. Roger
D.J., 419 A.2d 1301 (Pa. Super. 1980)). While this court is mindful that willful
interference with court-ordered visitations cannot be the basis for an "automatic"
change of custody, we took into careful consideration the advantages and risks of a
change in custody and determined that the advantages are in favor of a transfer of
primary custody of E-t and c• to Father. See, English v. English, 469 A.2d 270, (Pa.
Super. 1983), See also, Rosenberg v Rosenberg, 504 A.2d 350, 353 (Pa.Super. 1986).
This court found that transfer of primary physical custody of ~and c• to Father
would not result in potential harm or disruption to their lives, but to the contrary, this
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transfer would remove the children from the toxic environment of Mother's home.
Moreover, the children are familiar with Father's home and neighborhood since they
have spent significant periods of time with Father since the parties' separation in
2005. The children have strong ties to their Stepmother, Arlll!, stepbrother, K92, and
to the Baltimore area as a result of the time they have spent with Father.
The Superior Court has long recognized that the policy of not separating siblings is
only one factor and does not take precedence over the ultimate analysis in which the
best interest factors are applied. Johns v. Cioci, 865 A.2d 931, 942 (Pa.Super. 2004)
(citing E.A.L. v. L.J.W., 662 A.2d 1109, 1118 (1995); Cardamone v. Elshoff, 659 A.2d
575, 583-84 (1995); M.D. v. B.D., 485 A.2d 813, 816-817 {1984). In Watters v. Watters,
757 A.2d 966, 969 (Pa.Super. 2000), the Superior Court held that absent "compelling
reasons" the policy that siblings should be raised together should not be disturbed. In
determining whether compelling reasons exist, a court must "ask whether the
evidence indicates that it was necessary to separate the children and whether the
evidence was forceful in this regard." Id. This court carefully considered that the
evidence including testimony was forceful over the course of nearly two years and
determined that compelling reasons in fact do exist to separate E• and C. from
their older sister, Mct1181ffl. This court implemented an order that would afford
substantial contact between the siblings on weekends, holidays, and during summer
vacation. This court also determined that this separation would also be in the best
interest of MfNlllll, who remains primarily with Mother. Given her history of
psychological needs, this court firmly believes that this custodial arrangement will give
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Mother a greater opportunity to devote more one-on-one attention to~ in the
hope that M~s psychological issues will become under control.
This court recognizes that when both parents are otherwise fit, one parent's role
as the primary caretaker may be given weight as the determining factor in a custody
case. See Wheeler v. Mazur, 793 A.2d 929, 935 (Pa.Super. 2002) (quoting Wiseman v.
Wall, 718 A.2d 844, 851 (Pa.Super. 1998}. However, a parent's role as the primary
caretaker does not outweigh the other factors in the best interest analysis. See S.J.S.
v. M.J.S., 76 3d 541, 551 (Pa. Super. 2013}.
In the instant case, this court does not feel that the home environments in both
households are equal in their ability to foster the wellbeing of the children. It is this
court's intention, by transferring primary physical custody of E....,.and C868 A.2d 601(Pa. Super. 2005), appeal denied, 890 A.2d 1059 {2005). In addition, the reviewing court
must place great reliance on the sound discretion of the trial judge. See Goodman v.
Goodman, 556 A.2d 1379, 1391 {Pa.Super. 1989). In order to sustain a finding of civil
contempt, the complainant must prove certain distinct elements by a preponderance of
the evidence: (1) that the contemnor had notice of the specific order or decree which she
is alleged to have disobeyed; (2) that the act constituting the contemnor's violation was
volitional; and (3) that the contemnor acted with wrongful intent. Stahl v. Redcay, 897
A.2d 478, 489 (Pa.Super. 2006).
The evidence in this case clearly demonstrates Mother's history of making unilateral
decisions changing Father's custodial periods with the children. Despite the evidence
regarding additional instances wherein Mother willfully disobeyed the court order, this
court held Mother in contempt for only one incident: her willful refusal to transport the
parties' children to Father on Friday, February 28, 2014, which was not excused by her
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' '
unilateral invocation of the Weather Clause. We find Mother's conduct to be a flagrant
violation of this court's authority. Moreover, the financial sanction that we imposed is
consistent with the terms of the parties' agreed order of July 31, 2012.
Mother contends in her final issue on appeal that the court abused its discretion and
erred as a matter of law and fact in not finding Father in willful contempt of the custody
order. In her Petition for Contempt flied December 27, 2013, Mother makes the following
averments:
1. The Respondent continues to communicate in an abusive and intimidating way
to both the Petitioner and their 13 year old daughter. The Respondent refuses
to provide any proof of attending counseling, but has indicated that his
"counselor" has diagnosed the Petitioner with Borderline Personality Disorder,
having never met or spoken with her.
2. The Respondent refuses to be flexible for compromise for the children's events
or to changing circumstancessuch as the Petitioner's severe back injury and
inability to provide transportation.
3. The Respondent is extraordinarily abusiveto our 13 year old daughter and has
sent emails indicating that he believes Petitioner is trying to diminish his role
as Father.
4. Respondent refuses to modify the transportation and threatens contempt
when we are late due to traffic.
In reviewing the voluminous record in thls matter, and after making findings of
credibility, this court finds that Mother did not meet her burden of proving the above-
cited allegations by a preponderance of the evidence.
The trial court asserts that it did not err in entering its order for custody of June 3,
2014, and respectfully requests that the order be affirmed and that Mother's appeal be
dismissed.
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. .- - .-) . v( ~)
BY THE COURT:
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DIANE THOMPSON, J.
37