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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.A.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
M.K.
APPEAL OF: M.K. No. 829 MDA 2014
Appeal from the Order entered April 15, 2014,
in the Court of Common Pleas of York County,
Civil Division, at Nos: 2009-FC-000526-03
BEFORE: OTT, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 17, 2014
M.K. (Father) appeals from the order entered April 15, 2014, in the
York County Court of Common Pleas, which awarded primary physical
custody of his minor child, C.K. (Child), born in April of 2007, to Child’s
mother, C.A.W. (Mother). The order also granted Father partial physical
custody of Child, and granted both parties joint legal custody of Child. Also
before us is Mother’s Application for Relief. We deny Mother’s application
and affirm the order of the trial court.
Mother and Father are former spouses. They divorced in 2009 and
engaged in a series of custody disputes. This culminated in a custody order
entered on December 1, 2011. Since the parties separated, Mother has had
primary physical custody of Child, Father has had partial physical custody of
Child, and the parties have had shared legal custody of Child.
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On July 1, 2013, Mother filed a Petition for Modification of Custody
Order. In her petition, Mother requested, inter alia, that she be given
primary legal custody of Child, and that Father’s physical custody be
reduced, because of Father’s hostility toward Mother, Father’s failure to
communicate with Mother, and because Mother anticipated that Child would
be participating in an increased number of extracurricular activities which
required “a more stable schedule and the flexibility of both parents to
accommodate the child’s best interest.” Plaintiff’s Petition for Modification of
Custody Order, 7/1/13, at 4. On July 12, 2013, Father filed an answer and
counterpetition to Mother’s petition to modify. In his counterpetition, Father
alleged that Mother harasses Father and attempts to alienate Father from
Child. Father requested that the court grant equal periods of physical
custody. That same day, Father filed a Petition for Contempt against
Mother, alleging that she had violated the custody order in a variety of ways.
Mother filed an answer to Father’s counterpetition on August 5, 2013.
An Interim Order for Custody, Pending Trial, was entered on August
13, 2013. The order did not alter the parties’ existing custodial
arrangement. On October 15, 2013, Father filed an Amended Answer and
Counterpetition to Plaintiff’s Petition for Modification of Custody, in which he
requested that, in the alternative, he be granted primary physical custody of
Child. Mother filed an answer to the amended counterpetition on December
13, 2013.
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Father also filed a Petition for Special Relief on December 31, 2013. In
the petition, Father alleged that Mother had violated the custody order by
leasing a new residence and moving Child to a new school district without
consulting with, or informing, Father. Mother filed an answer to Father’s
petition on January 9, 2014. On January 13, 2014, an order was entered
directing that Child be returned to his former school. On January 29, 2014,
Mother filed a Petition Seeking Reconsideration of the trial court’s order.
Father filed a response to Mother’s petition on February 4, 2014. Father
filed an Amended Petition for Contempt that same day, in which he alleged,
inter alia, that Mother had failed to file an application to have Child returned
to his prior school. Mother filed an answer to Father’s amended contempt
petition on April 8, 2014.
A custody trial took place on April 10, 2014, and April 11, 2014. The
trial court delivered its opinion on April 14, 2014. On April 15, 2014, the
court entered a Custody Order After Trial. The custody order granted
Mother continued primary custody of Child, with some modifications. The
order also granted contempt against Mother for her act of moving Child to a
new school district without Father’s consent or knowledge, and for failing to
reenroll him in his old school. The court also found Mother in contempt for
the “histrionics” she displayed during an argument with Father at Child’s
doctor’s office. Custody Order After Trial, 4/15/14, at 16.
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On April 24, 2014, Father filed a Motion for Reconsideration of the trial
court’s order. Mother filed an answer to Father’s motion and a Motion to
Dismiss Father’s motion on May 6, 2014. The trial court entered an order
denying Father’s motion on May 12, 2014. Father timely filed a notice of
appeal on May 13, 2014. Father also filed a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On
May 16, 2014, the trial court issued a statement indicating that the reasons
for its decision could be found in its opinion and order entered April 14,
2014, and April 15, 2014, respectively.
Father now raises the following issues.
I. Whether the trial court abused its discretion in granting
[Mother] primary physical custody of the parties[’] minor child,
which decision was against the weight of the evidence presented
at trial, and is contrary to the best interest of the child?
a. Whether the trial court abused its discretion and
erred in determining that neither party was more
likely than the other to encourage and permit the
child to have frequent and continuing contact with
the other party, pursuant to 23 Pa. C.S.
§ 5328(a)(1)?
b. Whether the trial court abused its discretion and
erred in determining that both parties, in term[s] of
family and community life, have the ability to
provide stability and continuity for the child,
pursuant to 23 Pa. C.S. § 5328(a)(4)?
c. Whether the trial court abused its discretion and
erred in determining Mother has the ability to
provide stability and continuity for the child, in the
physical sense, pursuant to 23 Pa. C.S.
§ 5328(a)(4)?
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d. Whether the trial court abused its discretion and
erred in failing to properly consider the well[-
]reasoned preference of the child based on the
child’s maturity and judgment, pursuant to 23 Pa.
C.S. § 5328(a)(7)?
e. Whether the trial court abused its discretion and
erred in determining that the parties were equally
likely to maintain a loving, stable, consistent and
nurturing relationship with the child adequate for
child’s emotional needs, pursuant to 23 Pa. C.S.
§ 5328(a)(9)?
f. Whether the trial court abused its discretion and
erred in determining that the parties were equally
likely to attend to the daily physical, emotional,
developmental, educational, and special needs of the
child, pursuant to 23 Pa. C.S. § 5328(a)(10)?
g. Whether the trial court abused its discretion and
erred in determining that the parties were equally
able to care for the child, pursuant to 23 Pa. C.S.
§ 5328(a)(12)?
h. Whether the trial court abused its discretion and
erred in failing to properly consider Mother’s mental
condition pursuant to 23 Pa. C.S. § 5328(a)(15), and
failed in giving weigh[t]ed consideration to this
factor as it impacts the safety of the child?
i. Whether the trial court erred in giving weight to
the child’s bond with Mother, which does not affect
the safety of the child, over the other factors, in
violation[] of 23 Pa. C.S. § 5328?
Father’s Brief at 8-10 (suggested answers omitted).
Before considering Father’s issues, we note that, on July 25, 2014,
Mother filed an Application for Relief in this Court. In her application, Mother
argues that Father’s brief and reproduced record violate our Rules of
Appellate Procedure in numerous ways, contends that Father’s appeal should
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be dismissed, and requests counsel fees. The substance of Mother’s
application is repeated in her brief on appeal. Mother’s Brief at 27-30.
Mother points out, inter alia, that Father’s brief fails to contain a copy of the
trial court’s opinion, the order appealed from, Father’s concise statement of
errors complained of on appeal, or a proof of service, and argues that
Father’s reproduced record is unnecessarily large, contains handwritten
notations, and is out of order. While Mother is correct that Father has failed
to submit a brief and reproduced record in perfect compliance with our rules,
his errors are relatively minor and do not impede our review. Therefore, we
decline to dismiss Father’s appeal, and we proceed to review his appeal on
the merits. See Green v. Green, 69 A.3d 282, 285 n.2 (Pa. Super. 2013)
(quoting White v. Owens–Corning Fiberglas, Corp., 668 A.2d 136, 141
(Pa. Super. 1995), appeal denied, 683 A.2d 885 (Pa. 1996)) (“‘[I]f the
failure to comply with the rules of appellate procedure does not impede
review of the issues or prejudice the parties, we will address the merits of
the appeal.’”).
We address Father’s claims mindful of our well-settled standard of
review.
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately, the
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test is whether the trial court’s conclusions are unreasonable as
shown by the evidence of record. We may reject the conclusions
of the trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014)
(citation omitted). The factors to be considered by a court when awarding
custody are set forth at 23 Pa.C.S.A. § 5328(a).
(a) Factors.--In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
the child.
(3) The parental duties performed by each party on behalf of the
child.
(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.
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(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child's emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another. A
party's effort to protect a child from abuse by another party is
not evidence of unwillingness or inability to cooperate with that
party.
(14) The history of drug or alcohol abuse of a party or member
of a party's household.
(15) The mental and physical condition of a party or member of
a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).1
Instantly, in its opinion of April 14, 2014, the trial court discussed the
factors quoted supra, and concluded that the majority of them did not favor
1
Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services). Because the
parties’ petitions to modify were filed prior to the effective date of the
subsection, the subsection does not apply to the present case. See § 6 of
Act of December 18, 2013, P.L. 1167, No. 107, effective 1/1/14.
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either parent. Trial Court Opinion, 4/14/14, at 5-14. The court indicated
that it would not reduce Father’s custodial time to the extent Mother desired,
explaining that, “[i]f Mother were to receive what she requested in her
petition to modify, [F]ather would never know anything about [Child]. She
has testified directly that she does not tell him anything, she does not call
him when she makes appointments, she does not call him about school
issues.” Id. at 14. The court also stated that it considered 50/50 custody.
Id. However, the court indicated that it had rejected this proposal due to
“the parties’ geographic situation.” Id. The court noted that it considered
granting Father primary physical custody as well, but rejected this idea
based on the testimony of Dr. Timothy Ring, who performed a custody
evaluation and testified at the trial. Id. Dr. Ring recommended that Mother
should receive primary physical custody of Child, and offered the following
explanation.
[Mother] has a stronger bond with the child. She is more
emotionally expressive with the child. The child relates to her.
She carries with her personality and her parenting attributes and
abilities a greater degree of warmth and nurturance. She
communicates well with the child. She knows the child’s needs
better than [Father]. Again, though, he is an adequate parent
and can meet the child’s needs quite adequately. But, if we
have to make a call here of primary physical custody, it is in
favor of mom.
N.T., 4/10-4/11/14, at 298.
Father’s first issue is that the trial court abused its discretion by
concluding that “neither party was more likely than the other to encourage
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and permit the child to have frequent and continuing contact with the other
party, pursuant to 23 Pa. C.S.A. § 5328(a)(1).” Father’s Brief at 22. The
trial court reasoned that this factor did not weigh in favor of either party
because “[t]here was mixed evidence regarding this issue.” Trial Court
Opinion, 4/14/14, at 5. The court observed that Child “has the ability to
make nightly telephone calls to the non-custodial parent, which is a good
factor,” and that “there was testimony that [F]ather has been willing to
adjust the custody schedule to accommodate requests made by [M]other.”
Id. However, the court observed that Mother and Father “do not
communicate with one another. They often dig their heels into the ground
and refuse to act in the child’s best interest when it comes to making
adjustments to the schedule.” Id. at 6. In response, Father argues as
follows.
The trial court determined that neither party was more
likely to encourage and permit the child to have frequent and
continuing contact with the other. The evidence on this issue
does not support this determination. The court essentially
contradicted itself when it stated: “If Mother were to receive
what she requested in her petition to modify, Father would never
know anything about [the child]. She has testified directly that
she does not tell him anything, she does not call him when she
makes appointments, she does not call him about school issues.”
Father, on the other hand, has consistently requested 50/50
custody since 2009 when custody issues first arose. On the
evening when Mother gave birth to another child, she testified
that she did not give Father the opportunity to have their child
as provided for in the right of first refusal clause of the custody
agreement regarding when the parent will not be in care of the
child for 72 hours. Furthermore, with regard to taking the child
on vacation, Mother testified that she does not ask Father for
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permission to take a vacation that cuts into Father’s time with
the child, but rather tells him that she is taking a vacation.
Goodnight phone calls are to be made each night from the
child to parent who is currently not with the child. Mother
herself testified that this phone call does not always happen
when the child is with her. Father testified that the goodnight
phone calls coming from [Mother’s] residence when the child is
with her have been missed several times a year for the last 5
years. Furthermore, Father is owed a significant amount of
make-up time with the child as admitted by both Mother and
Father.
Father’s Brief at 22-23 (citations to the record omitted).
Our review of the record supports the trial court’s finding that both
parties were equally likely to encourage and permit Child to have frequent
and continuing contact with the other party. At the custody trial, Mother
testified that she “always make[s] sure that [Child] would see his dad, would
talk to his dad.” N.T., 4/10-4/11/14, at 54. Mother did not testify that she
was seeking additional custodial time as a means of limiting Child’s
relationship with Father. Rather, Mother stated that she was seeking a
change in custody so as to permit her more quality time with Child, to
facilitate extracurricular activities, and to lessen the difficulty caused by
frequent custody transfers. Id. at 14-15, 23-25, 86, 93-94.
Similarly, while Mother admitted that Father was owed makeup time,
she testified that this time accumulated for legitimate reasons, such as Child
getting sick, or poor weather making transportation difficult. Id. at 105-06.
Concerning her use of the right of first refusal, Mother testified that that she
did not believe that the clause would apply during the birth of her other
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child, because she knew that Child would not be out of her care for 72
hours. Id. at 46 (“[Child] was out of my direct custody for roughly 55 hours
before he went to his father’s. . . . I knew exactly how long [Child] was
going to be away from my custody.”). The trial court was free to accept
these explanations. Mother did admit during cross-examination that she
does not ask Father for vacation time, but “[h]ow we kind of typically do it is
we say this is our intent.” Id. at 112. However, the court clearly considered
the parties’ communication problems in reaching its decision, and court was
permitted to weigh this testimony as it saw fit.
The record also reflects that Mother has been consistent in ensuring
that Child makes his nightly phone call to Father while in Mother’s care.
While Mother admitted that this phone call was occasionally missed, she
explained that there was always a good reason. Id. at 52-53, 103.
Specifically, Mother indicated that phone calls would be missed when Child
was sick, or if there were some other problem that prevented the call from
being made. Id. Mother indicated that she always informed Father that a
call would not be made on a given night, and why. Id. at 52-53, 104.
Father admitted that Child sometimes failed to make phone calls to Mother
while in his care for similar reasons. Id. (“I would say that’s maybe
happened three or four times in those five years. And it could be something
as he was sick or we tried a few times and nobody answered.”). We discern
no abuse of discretion.
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Father next claims that the trial court abused its discretion by
concluding that “both parties, in term[s] of family and community life, have
the ability to provide stability and continuity for the child, pursuant to 23 Pa.
C.S.A. § 5328(a)(4).” Father’s Brief at 24. The trial court reasoned that this
factor did not weigh in favor of either party because “each of the parties is
stable in their current relationships.” Trial Court Opinion, 4/14/14, at 7.
Father argues as follows.
Mother has three other children besides the child that is
subject of this custody dispute, all of whom are under the age of
3, including a newborn. Mother testified that she has “hired a
professional nanny service” and that she has a “girl that comes
into [her] home to help [her] with the other children.” She
further testified that she has plenty of extended family members
that will help take care of the child. Having to share his Mother
with three other, younger, and much needier children will
inevitably take a toll on Mother’s ability to provide for the child
that is the subject of this dispute. The time spent at Mother’s
house will essentially entail the child being cared for by others.
As the court in [Wiseman v. Wall, 718 A.2d 844 (Pa. Super.
1998)] stated, it defeats the purpose of awarding much more
time to [M]other than [F]ather when most, if not all of the time
spent at his Mother’s house will be in the care other individuals
besides the parent he is to be spending time with. Furthermore,
the child specifically told the court in an in camera proceeding
that he has no friends at Mother’s house. On the other hand,
both Father’s paramour and the child mentioned a few of the
many friends that the child has at his Father’s house.
Father’s Brief at 25-26 (citations to the record omitted).
As argued by Mother, Father misstates Mother’s testimony at the
custody trial. See Mother’s Brief at 25. During the trial, Mother indicated
that she was pregnant with her fourth child. The following exchange then
took place.
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Q. What, if any, plans have you made to care for your other
children while you are in the hospital and recovering from the
delivery?
A. Yes. Actually, we hired a professional nanny service. And we
have a girl that comes into our home to help me with the other
children. That way, I can recover. I have to have a C-section
and my C-sections don’t typically go very easily. That way, we
know we have someone there all the time that can help. And
[Mother’s second husband, D.,] works from home, so he’s home
and I am home. And as I said, we have a lot of family. We do
have someone that we hired that we know for sure will be there
day in and day out.
N.T., 4/10-4/11/14, at 75.
Thus, Mother testified that she had hired a professional nanny service
to assist her only during her recovery from pregnancy. Mother did not state
that she had hired this nanny to help care for her children indefinitely. Even
if Mother’s testimony could be interpreted to suggest that hired help would
be needed long-term, Father’s claim that Mother will be unable to provide
appropriate care for Child, and that “[t]he time spent at Mother’s house will
essentially entail the child being cared for by others” is nothing more than
speculation. In addition, while Child indicated that he did not have any
friends that live near Mother’s residence, Mother testified that she intended
to involve Child in various extracurricular activities, which would allow him to
meet and socialize with other children. Id. at 15-17, 360. Again, the trial
court’s conclusion is supported by the record.
Father argues next that the trial court abused its discretion by
concluding that “Mother had the ability to provide stability and continuity for
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the child, in the physical sense, pursuant to 23 Pa. C.S.A. § 5328(a)(4).”
Father’s Brief at 26. Father’s argument is in reference to the trial court’s
finding that Child’s “educational setting” had been disrupted by Mother’s
move during December of 2013. Trial Court Opinion, 4/14/14 at 7. Despite
this finding, the court concluded that “stability and continuity in the physical
sense has been provided by [M]other at this point in time.” Id. Father’s
argument is as follows.
At the age of 7, the child is now in his 3rd school. The most
recent school disruption was in January of 2014. This occurred
because the Mother moved without permission from the [c]ourt.
Mother testified “[w]e just did it. It happened very fast.” In his
testimony, Dr. Ring stated that he would “like the child to
establish some stability in a particular community.” Again, the
community the child is more involved in is the one in which his
Father currently resides as evidence by the testimony and facts
above. The ability to gain some stability in both communities, as
is currently not the case, is with a 50/50 split of time. Father
has consistently requested 50/50 custody and this would satisfy
even one of the main concerns of [Mother’s] own expert witness.
In his testimony, Dr. Ring stated “given the distance and
the lack of communication, their [in]ability to talk to one
another, at this point the least amount of transfers with these
folks the better.” [Father] argues that under the current scheme
we have not achieved this goal. The time is neither “equal and
fair” as the child had wished, nor have we solved the issue of
frequent exchanges and transfers among the parties.
Father’s Brief at 26-27 (citations to the record omitted).
Here, Father cannot complain about Mother’s decision to move when
Father himself testified that he changed residences during the November
prior to the custody hearing. N.T., 4/10-4/11/14, at 154. Further, while
Father is correct that Dr. Ring expressed concerns about frequent custody
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transfers, Dr. Ring also stated that 50/50 custody was inadvisable in the
present case. Id. at 313-14. Specifically, on cross-examination, Dr. Ring
was asked why a 50/50 custody arrangement would not work, even if such
the arrangement were to minimize transfers and contact between the
parties. Id. Dr. Ring offered the following explanation.
You know, counselor, I keep going back to the relatedness and
the warmth and the emotional expression and, again, the
connection that the child has with mom and also the necessity
for the parties to have to communicate with one another if it
were 50/50. You have to discuss activities and continuity of
activities and exchange of clothes and who forgot the sneakers
and the soccer schedule. These guys aren’t there yet.
Id.
Additionally, while Dr. Ring indicated that it would be better if Child
were to establish stability in a particular community, Dr. Ring recommended
unequivocally that it should be Mother’s community where Child finds
stability. Id. at 298. We see no basis on which to conclude that the trial
court abused its discretion.
Father’s next issue is that the trial court abused its discretion by
“failing to consider the well reasoned preference of the child based on the
child’s maturity and judgment, pursuant to 23 Pa. C.S.A. § 5328(a)(4).”
Father’s Brief at 27. In its opinion, the trial court acknowledged that Child
had expressed a desire that Mother and Father have equal custodial time.
Trial Court Opinion, 4/14/14, at 9. However, the trial court appeared to
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dismiss the Child’s stated preference as a product of Father’s influence over
Child. Id. The court offered the following discussion.
The court is to consider the well-reasoned preference of
the child based upon the child’s maturity and judgment. [Child]
has just turned seven. He is bright. He is well-mannered. He
was fairly open with the court.
The court found it interesting that he initially told me that
he likes the schedule as it is and would make no changes. He
has no concern at either household that he raised with the court,
but very late in our conversation he piped up with wanting 50/50
custody, a term that most seven-year-olds would not be aware
of. He told me that he thought equal time with his parents
would be fair and that he had talked this over with his father.
Id. at 8-9.
In response, Father argues in the following manner.
As for the well-reasoned preference of the child based on
the child’s maturity and judgment, the court stated that it “found
it interesting the [the child] initially told [the court] that he likes
the schedule as it is and would make no changes. *** but very
late in our conversation he piped up with wanting 50/50 custody,
a term that most seven-year-olds would not be aware of.” This
determination is completely against the weight of the evidence
as the court has mistaken the child’s testimony. Despite the
[c]ourt’s mistake, the child never actually uses the term “50/50.”
The in camera testimony was as follows:
Q (the court). You wouldn’t change anything?
A (the child). No. Just the time.
Q. The time? What do you mean the time?
A. Like, I’d like to see them equally.
Q. Equally. Why do you think you’d like to see them
equally?
A. Because then it would be fair and right now it’s not fair.
Q. What makes you think it’s not fair?
A. I get to have more time with my dad but my dad
doesn’t think it.
Q. Does he have some talks with you about that?
A. Yeah.
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Q. Do you think it’s fair the way it is?
A. (Shakes head).
Q. Why don’t you think it’s fair?
A. Because it’s not equal time.
The Child expresses his desire for “equal time” with both parents
in the interest of fairness. This testimonial exchange points to
two things. First, Mother testified that that the child had been
“talking a lot about 50/50 custody which is not a term we use.
It is just interesting hearing this little guy come out with 50/50
custody.” Had the child in fact been using the term “50/50” as
frequently as she states, the child would likely have repeated the
same term in the in camera proceeding with the [c]ourt. The
child did not. Second, the child states “I get to have more time
with my dad but my dad doesn’t think it.” Clearly, the child has
not been unduly influenced by Father, as thought by the [c]ourt.
If the child had been influenced, he would not have made such a
statement that goes against his Father’s perceived “agenda.”
Regarding the proximity of the residences of the parties,
the court stated “the parties have stipulated that the residences
are 22 ½ miles apart in two different counties, which makes it
very difficult for the court to practically consider Father’s request
for 50/50 custody.” Father’s original request for 50/50 custody
was denied by the court “given the parties’ geographic
situation.” At trial, Dr. Ring further testified that the
arrangement be kept in its current (on the date of trial) state
because “it afford Father about as much contact as he could get
without stressing the child regarding the transportation back and
forth.” Fortunately, the child himself had the ability to express
this concern, if it existed, but in fact was quite fine with the
transportation as evidence by the following exchange:
Q (the court). Okay and how to do you get to school the
next day?
A. We drive to school.
Q. Okay. Is it a long drive?
A. Not really.
Q. Not really?
A. At my mom’s house it takes two minutes. At my dad’s
it takes probably a little longer.
***
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All in all, the child expressed to the court his wish that the time
be split between his parents fairly and equally and did not
express any wear and tear regarding traveling back and forth
from one house to the other.
Father’s Brief at 27-29 (citations to the record omitted).
We acknowledge that Father is correct in saying that Child never used
the term “50/50” custody during his conversation with the trial court.
However, this does not warrant a reversal of the court’s custody order. The
court did not indicate that Child’s purported testimony was a critical factor in
its decision to award Mother primary physical custody. The court stated
merely that Child’s testimony was “interesting.” Trial Court Opinion,
4/14/14, at 8-9.
Even if the trial court’s incorrect recollection of Child’s statements
played a significant role in its decision, there was other testimony presented
to support the court’s inference that Child’s preference for shared custody
was a product of Father’s influence. As noted by Father supra, Mother
testified that Child had been talking about “50/50 custody,” despite Mother’s
claim that she never used that term or discussed the custody case with
Child. N.T., 4/10-4/11/14, at 41-42. The trial court was free to credit this
testimony. Additionally, as observed by the trial court, Child stated during
his testimony that he had discussed possible custody arrangements with
Father. Id. at 364. Concerning the second part of Father’s argument, it is
clear that the portion of testimony quoted by Father relates to the distance
traveled for Child to go to school, not the distance between the parties’
respective homes. We discern no abuse of discretion.
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Next, Father argues that the trial court abused its discretion by
concluding that “the parties were equally likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for the child’s
emotional needs, pursuant to 23 Pa. C.S.A. § 5328(a)(9).” Father’s Brief at
30. The trial court said little with respect to this factor, noting that “[i]t is
clear to the court that both parents love [Child]. That is not an issue,” and
that both parents were “equally blameworthy” for their failure to
communicate with and respect one another. Trial Court Opinion, 4/14/14, at
9-10. Father makes the following argument.
Here, the court heard plenty of testimony regarding the
Father’s ability to maintain a loving, stable, consistent and
nurturing relationship with the child adequate for the child’s
emotional needs. Father testified extensively as to the types of
loving, stable, consistent and nurturing relationship he has with
his son including the activities they do together and Father’s
strengths as a parent, which includes being patient and
understanding and asking his son questions. Father further
testifie[d] about the stable and consistent routine they have
established at his house for the child which includes basic
activities of daily living, eating, going to school, doing
homework, eating dinner, going to church, having snacks,
spending quality time together, and visiting the child’s friends.
When asked whether Father gets baby-sitters when the
child is in his custody, the Father answered in the negative and
explained that “[i]t is just an understood rule. When we have
[the child], it is [the child’s] time. We don’t make dinner plans.
We don’t go to parties. When [the child] is here, we have
[him].” This expresses Father’s dedication to his son and his
willingness to devote all of his time, energy, and effort to his
son during the time he has him.
Mother, on the other hand, does not express that same
dedication. She has three other children, all of whom are under
the age of 3, including a newborn. Mother testified that she has
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“hired a professional nanny service” and that she has a “girl
that comes into [her] home to help her with the other children.”
She further testified that she has plenty of extended family
members that will help take care of the child.
Furthermore, Mother has not established that she is able
to maintain a nurturing relationship with the child adequate for
the child’s emotional needs. In his direct testimony, Dr. Ring
expressed his opinion that the Mother should be the primary
caretaker of the child. He state[d] among other things that
“[s]he knows the child’s needs better than [Father].” On the
contrary, Mother has previously called her child “socially
retarded” on a parent evaluation for use by his [p]ediatrician.
Thus, the weight of the evidence conveys that Mother does not,
in fact, know her child’s needs better than [Father]. Dr.
R[i]ng’s testimony to the contrary should be disregarded.
Father’s Brief at 31-32 (citations to the record omitted).
Again, we note that the mere fact that Mother has three other children
does not render her incapable of providing a nurturing and loving
environment for Child. There is nothing in the record to support such a
conclusion. Further, Mother denied during her testimony that she ever
called Child “socially retarded.” N.T., 4/10-4/11/14, at 124 (“If I said that,
that’s pretty surprising. That’s not something I would normally call my son.
I honestly can’t think of how that would have come out, because that’s
pretty sharp.”). As noted by Father, Dr. Ring recommended Mother for
primary physical custody because he believed her to be more nurturing and
loving. Id. at 298. Even if Mother did describe Child in a negative fashion,
it was not an abuse of discretion for the trial court to weigh this statement
against the other evidence presented in Mother’s favor.
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Father’s next argument is that the trial court abused its discretion by
concluding that “the parties were equally likely to attend to the daily
physical, emotional, developmental, educational, and special needs of the
child, pursuant to 23 Pa. C.S.A. § 5328(a)(10).” Father’s Brief at 30. The
trial court concluded that this factor did not weigh in favor of either party, as
“[b]oth parents are likely to and have been able to meet the child’s needs.”
Trial Court Opinion, 4/14/14, at 10. Here, Father repeats his claims that
Mother is overwhelmed by caring for several small children, that Child has
no friends at Mother’s house, and that Child will be ignored if Mother is left
with primary custody. Father’s Brief at 33-34. For the reasons stated supra,
no relief is due.
Father next asserts that the trial court abused its discretion by
concluding that “the parties were equally able to care for the child, pursuant
to 23 Pa. C.S.A. § 5328(a)(12).” Father’s Brief at 34. The court noted that
it considered this factor but did not indicate that it weighed in favor of either
party. See Trial Court Opinion, 4/14/14, at 11. Again, Father repeats a
number of the arguments raised in connection with his previous issues.
Father’s Brief at 34-35. Father directs our attention to Mother’s request that
his custodial time be reduced, points out that Mother changed residences,
claims he is owed back time, and alleges that Mother is overwhelmed by her
three other children. Id. We reject these arguments for the reasons
already discussed.
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Father claims next that the trial court abused its discretion because it
failed “to properly consider Mother’s mental condition pursuant to 23 Pa.
C.S.A. § 5328(a)(15), and failed in giving weigh[t]ed consideration to this
factor as it impacts the safety of the child.” Father’s Brief at 36. Regarding
this factor, the trial court observed that Mother had a “significant” mental
health history, and that this history “is an issue.” Trial Court Opinion,
4/14/14, at 13. The court suggested, inter alia, that Mother’s mental health
has resulted in poor decision-making “regarding issues of legal custody” and
that Mother “needs to find a way to improve things.” Id. Father argues the
following.
With regard to the history of drug and alcohol abuse of a
party or member of a party’s household, the court noted a
“rather significant past history of Mother that was noted in Dr.
Ring’s report” but did not thoroughly consider those effects. The
court failed to properly consider Mother’s mental health as an
issue affecting her ability to care for the child. The court found
that the “Mother’s stress or paranoia *** is largely self-
imposed.” Further, the court explained that “there are plenty of
opportunities for Mother to gain assistance to address this issue;
however, she not made good use of those providers.” The court
further expressed that “Mother would benefit from individual
counseling, as some of her behaviors are irrational and certainly
not in the best interests of [the child].”
According to Dr. Ring’s testimony, Mother “carries
personality traits that are both histrionic and compulsive. On
the histrionic side, histrionic individuals are individuals that get
very emotional. They get very reactive and sometimes are
subject to episodes of emotional dyscontrol. In other words, in
layman’s terms, they overreact to situations.” Dr. Ring and the
[c]ourt have both independently expressed their concerns for the
Mother’s erratic, dramatic, and compulsive behavior. There was
evidence presented regarding a chaotic episode Mother had in
the waiting room of the child’s doctor’s office. Dr. Ring’s own
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testimony regarding Mother’s mental health condition is that she
needs to “keep an eye on it.”
Father’s Brief at 36-37 (citations to the record omitted, emphasis in
original).
Critically, we observe that there was no evidence presented at the
custody trial that Mother is, or ever was, a danger to Child. In addition,
while there was testimony presented that Mother’s mental health
occasionally caused her to act irrationally, evidence was also presented
concerning Father’s own fragile emotional state. During the trial, Father was
described as resentful, angry, and verbally abusive. For example, Dr. Ring
read a portion of a letter, reportedly drafted by Father’s mother, during his
testimony. N.T., 4/10-4/11/14, at 282. The letter stated that Father was as
“an angry individual who got lost in his own self consumption and need to
control everything and anyone. The anger has progressed to hate and
infused uncontrolled acts of verbal fury. He makes statements to [Mother]
and [Child] that seem incomprehensible to me.” Id. Dr. Ring noted that
Father had been estranged from his sisters for 23 years, and expressed
disbelief that anything could justify such a lengthy estrangement. Id. at
282-83.
Dr. Ring also testified that Father “showed elevations, I believe, on the
psycho deviate scale in the MMPI and the paranoia scale in the MMPI.” Id.
at 291. Dr. Ring explained that Father,
has the qualities of an individual who is unconventional, who has
difficulty complying with authority, basically goes through life
dancing to the beat of his own drum. Individuals like this we
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pay attention to because they need to follow directives. They
have a hard time compromising. They are sometimes angry and
resentful. And that, in conjunction with the elevation of the
paranoia scale, would suggest defensiveness and a great deal of
difficulty with criticism, even constructive criticism.
And the bottom line is, those individuals tend to
externalize blame onto others for their own deficits. And that’s a
real difficult quality in an individual’s personality. And it
sometimes presents a roadblock with regard to growth. If
externalize blame onto other people for your deficits, it is hard
for you to take a look at what you are doing wrong and fix it.
***
[Father] carries grudges and he’s more likely to be
resentful and angry. This is a guy that has had a 23-year
estrangement with his siblings, doesn’t talk to his mother. This
is his family. And because he harbors these resentments and
carries that for a long time, that speaks to his compromised
ability, let’s say, to compromise and cooperate.
Id. at 291-93.
Father also has engaged in erratic behavior that is not in Child’s best
interests. For example, Father admitted that, after a previous custody order
was entered, he left his job “for a couple of days” and told Child that he was
“no longer his father.” Id. at 234 (“I did turn in my keys to the owner who
has been my friend for better than 20 years, and he understood. And yes,
there was a conversation that evening where I did make that statement.”).
Given this evidence, the trial court did not abuse its discretion.
Finally, Father argues that the trial court abused its discretion “in
giving weight to the child’s bond with Mother, which does not affect the
safety of the child, over the other factors, in violation[] of 23 Pa. C.S.A.
§ 5328.” Father’s Brief at 37. As noted supra, the trial court explained its
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decision to maintain primary physical custody with Mother by stating that it
was “persuaded by the testimony of Dr. Ring as to the effect” that awarding
primary physical custody to Father would have on Child. Trial Court Opinion,
4/14/14, at 14. Father argues as follows.
Given that Dr. Ring’s statement is totally unfounded and
does not comply with the applicable standards set forth in the
statute and precedent regarding weighing the factors, the court
erred in giving weight to the child’s bond with the Mother as it
does not affect the safety of the child over the other factors.
Father’s Brief at 37-38 (emphasis added, citations to the record omitted).
Again, there was no evidence presented at the custody trial that
Mother poses, or ever posed, any sort of safety risk to Child. Thus, the trial
court was free to credit Dr. Ring’s testimony that Child had more of a bond
with Mother, and to weigh this evidence as it saw fit. Moreover, while Father
claims that Dr. Ring’s testimony was “unfounded,” Dr. Ring explained in his
custody evaluation that his conclusions were “based on a number of clinical
interviews, collateral interviews, document review, psychological tests, and
behavioral observations with participants in this case,” which were described
in the evaluation. Custody Evaluation, 3/12/14, at 22. Father does not
acknowledge or discuss any of the bases for Dr. Ring’s opinion. Thus, Father
has failed to establish that he is entitled to relief.
Accordingly, because none of Father’s claims entitles him to relief, we
affirm the order of the trial court.
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Mother’s Application for Relief denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2014
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C.A.W. v. M.K., Appeal of: M.K.
Combined Opinion