C.S. v. T.S.

J-S13029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

T.S.

Appellant No. 1700 WDA 2014

Appeal from the Order September 16, 2014
In the Court of Common Pleas of Blair County
Civil Division at No(s): 2007 GN 6039

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.: FILED MAY 15, 2015

Appellant, T.S. (Mother), appeals from the September 16, 2014

custody order that denied her request to modify the existing custody order,

entered January 26, 2011, with respect to her daughter, A.S., born in

November 2000, and her son, J.S., born in February 2006 (collectively, the

Children). After careful review, we affirm.1

Following an evidentiary hearing in December of 2010, the trial court

entered the January 26, 2011 existing custody order granting C.S. (Father)

sole legal and primary physical custody and Mother partial physical custody

on alternating weekends. In addition, the existing custody order granted

____________________________________________

1
The Honorable Hiram A. Carpenter, III, presided over the proceedings that
resulted in the subject custody order as well as in the existing custody order.
J-S13029-15

Mother physical custody every Wednesday during the school year from 3:30

p.m. to 7:00 p.m. and, during the summer, from 9:00 a.m. to 8:00 p.m.

On August 27, 2013, Mother filed a petition to modify the existing

custody order, wherein she sought primary physical custody of the Children.

The evidentiary hearing in this matter occurred on August 26, 2014, during

which Mother and Father testified. By opinion and order dated September

15, 2014, and entered on September 16, 2014, the trial court denied

Mother’s request for modification. Mother timely filed a notice of appeal and

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i).2

On appeal, Mother presents the following issues for our review.

I. Whether the trial court erred and/or abused its
discretion in failing to place primary physical custody
of the subject children in [] Mother under the law
and the facts and the circumstances of this case[?]

II. Whether the trial court erred and/or abused its
discretion in its application of the custody factors to
the facts and circumstances of this case in deciding
not to place primary physical custody of the subject
children in [] Mother[?]

III. Whether the trial court erred and/or abused its
discretion in failing to significantly expand the
amount of time that the [ ] Mother has physical
custody of the subject children in view of her
availability and clear capability of caring for them
____________________________________________

2
On November 10, 2014, the trial court filed a notice of its intent to rely on
the certified record and its previous opinions for purposes of Mother’s
appeal.

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J-S13029-15

and meeting their needs during the times when []
Father is unavailable[?]

Mother’s Brief at 4.

The scope and standard of review in custody matters is as follows.

[T]he appellate court is not bound by the
deductions or inferences made by the trial
court from its findings of fact, nor must the
reviewing court accept a finding that has no
competent evidence to support it…. However,
this broad scope of review does not vest in the
reviewing court the duty or the privilege of
making its own independent determination….
Thus, an appellate court is empowered to
determine whether the trial court’s
incontrovertible factual findings support its
factual conclusions, but it may not interfere
with those conclusions unless they are
unreasonable in view of the trial court’s factual
findings; and thus, represent a gross abuse of
discretion.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
Super. 2009) (quoting Bovard v. Baker, 775 A.2d
835, 838 (Pa. Super. 2001)). Moreover,

[O]n issues of credibility and weight of
the evidence, we defer to the findings of the
trial [court] who has had the opportunity to
observe the proceedings and demeanor of the
witnesses.

The parties cannot dictate the amount of
weight the trial court places on evidence.
Rather, the paramount concern of the trial
court is the best interest of the child.
Appellate interference is unwarranted if the
trial court’s consideration of the best interest
of the child was careful and thorough, and we
are unable to find any abuse of discretion.

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J-S13029-15

R.M.G., Jr., supra at 1237 (internal citations
omitted). The test is whether the evidence of record
supports the trial court’s conclusions. Ketterer v.
Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (parallel citations

omitted).

Further, we have stated the following.

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.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006), quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004).

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 wellbeing.” Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006), quoting Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004).

The Child Custody Act (the Act), 23 Pa.C.S.A. §§ 5321-5340, became

effective on January 24, 2011. Because the proceedings in the instant case

occurred after the effective date of the Act, the Act is applicable. See C.R.F.

v. S.E.F., 45 A.3d 441, 442 (Pa. Super. 2012) (concluding that “where the

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J-S13029-15

evidentiary proceeding commences on or after the effective date of the Act,

the provisions of the Act apply even if the request or petition was filed prior

to the effective date[]”).

Relevant to this custody case are the factors set forth in Section

5328(a) of the Act, which provides as follows.

§ 5328. Factors to consider when awarding
custody.

(a) Factors. – In ordering any form of custody, the
court shall determine the best interest of the child by
considering all relevant factors, giving weighted
consideration to those factors which affect the safety
of the child, including the following:

(1) Which party is more likely to encourage
and permit frequent and continuing contact
between the child and another party.

(2) The present and past abuse committed by
a party or member of the party’s household,
whether there is a continued risk of harm to
the child or an abused party and which party
can better provide adequate physical
safeguards and supervision of the child.

(2.1) The information set forth in section
5329.1(a)(1) and (2) (relating to consideration
of child abuse and involvement with protective
services).

(3) The parental duties performed by each
party on behalf of the child.

(4) The need for stability and continuity in the
child’s education, family life and community
life.

(5) The availability of extended family.

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J-S13029-15

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child,
based on the child’s maturity and judgment.

(8) The attempts of a parent to turn the child
against the other parent, except in cases of
domestic violence where reasonable safety
measures are necessary to protect the child
from harm.

(9) Which party is more likely to maintain a
loving, stable, consistent and nurturing
relationship with the child adequate for the
child's emotional needs.

(10) Which party is more likely to attend to the
daily physical, emotional, developmental,
educational and special needs of the child.

(11) The proximity of the residences of the
parties.

(12) Each party’s availability to care for the
child or ability to make appropriate child-care
arrangements.

(13) The level of conflict between the parties
and the willingness and ability of the parties to
cooperate with one another. A party’s effort to
protect a child from abuse by another party is
not evidence of unwillingness or inability to
cooperate with that party.

(14) The history of drug or alcohol abuse of a
party or member of a party’s household.

(15) The mental and physical condition of a
party or member of a party’s household.

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J-S13029-15

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).3

This Court has stated that, “[a]ll of the factors listed in section

5328(a) are required to be considered by the trial court when entering a

custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)

(emphasis in original).

Section 5323(d) provides that a trial court “shall
delineate the reasons for its decision on the record in
open court or in a written opinion or order.” 23
Pa.C.S.A. § 5323(d). Additionally, “section 5323(d)
requires the trial court to set forth its mandatory
assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must
file a notice of appeal.” C.B. v. J.B., 65 A.3d 946,
955 (Pa. Super. 2013), appeal denied, 70 A.3d 808
(Pa. 2013)….

In expressing the reasons for its decision, “there is
no required amount of detail for the trial court’s
explanation; all that is required is that the
enumerated factors are considered and that the
custody decision is based on those considerations.”
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.
2013), appeal denied, 68 A.3d 909 (Pa. 2013). A
court’s explanation of reasons for its decision, which
adequately addresses the relevant factors, complies
with Section 5323(d). Id.

A.V., supra at 822-823. With these standards in mind, we turn to the

merits of this appeal.

____________________________________________

3
The Act was amended, effective January 1, 2014, to include the additional
factor at Section 5328(a)(2.1).

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J-S13029-15

All three of Mother’s issues pertain to the trial court’s discretion in

applying the custody factors under the Act to the facts of this case.

Specifically, Mother argues “there is no sound basis for not placing primary

physical custody of the children with her, together with substantial periods of

partial custody with Father consistent with his work schedule[.]” Mother’s

Brief at 11. Mother argues the current custody arrangement “results in

significant periods of time during which the [C]hildren are cared for by

babysitters and others.” Id. Further, Mother asserts that “although

Mother’s behavior may be unusual, inconvenient, uncomfortable, or

somewhat disruptive; this should not be grounds for denying her request for

primary physical custody of [the C]hildren unless the conduct can be

specifically shown as having a detrimental impact on the [C]hildren,” which

Mother asserts it does not. Id. at 12-13.

In its September 16, 2014 opinion and order, the trial court fully

addressed all of the Section 5328(a) custody factors in light of the evidence

presented during the hearing on August 26, 2014. Trial Court Opinion,

9/16/14, at 6-20. In addition, the trial court incorporated its opinion dated

January 26, 2011, with respect to the existing custody order. Specifically,

the trial court explained its rationale as follows.

[B]ased on the record created at the present hearing
that Opinion remains extremely accurate as to the
issues in the case and, given this opportunity, we
would not change a single word of our earlier writing
(notwithstanding the passage of almost four years)
as accurately reflecting the situation both as it

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J-S13029-15

existed then and as it exists now. In fact, most of []
Mother’s presentation involved a repeat of what we
heard at that time.

Id. at 5-6. In the January 26, 2011 opinion, the trial court stated that,

“[a]t the outset, we acknowledge that [M]other’s mental health condition

and her resultant behaviors are key issues in this case…. They affect both

her thought process and her judgment.” Trial Court Opinion, 1/26/11, at 5.

In the instant matter, Mother’s mental health condition was

undisputed. In her brief, Mother states she suffers from “certain disabilities

resulting from an accident when she was a teenager….” Mother’s Brief at

10. Further, at the custody hearing, Mother testified she had a traumatic

head injury and acknowledged that she suffers from short-term memory

loss. N.T., 8/26/14, at 68, 101. Mother also testified she suffers from

Attention Deficit Hyperactive Disorder (ADHD), for which she is prescribed

Adderall, and she suffers from Post-Traumatic Stress Disorder (PTSD). N.T.,

8/26/14, at 68. Finally, Mother testified she is under the care of a

psychiatrist whom she sees on a monthly basis. Id.

With respect to Mother’s mental health, the trial court noted that

ADHD and PTSD “were not established as the diagnosis in [Mother’s] medical

records[.] [However,] the impulsive behavior, acting without regard to

consequences, and disorganized thinking on the part of the Mother which are

documented in the mental health records were on full display both through

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J-S13029-15

[] Mother’s testimony and reviewing her actions where the [C]hildren are

concerned.” Trial Court Opinion, 9/16/14, at 17.

In considering all of the Section 5328(a) custody factors, the trial court

found that the most relevant ones weighed in favor of Father.4 Significantly,

with respect to Section 5328(a)(4), the need for stability and continuity in

the Children’s education, family life and community life, the trial court found

that Mother’s mental health difficulties “impact dramatically the stability and

continuity which she could offer the [C]hildren.” Trial Court Opinion,

9/16/14, at 11. The trial court found that, “[a]ll of [the Children’s] stability

revolves around [Father’s] household and, in fairness, the established

visitation schedule with their Mother.” Id. at 10. In addition, the trial court

found that Mother “does not presently have a home in which the [C]hildren

could be placed even if the [c]ourt were inclined to do so.” Id. at 12. The

trial court found that Mother’s present residence “is red tagged[5] and she

offered no specific plans for moving to another property which she owns in

Hollidaysburg located near the Father.” Id.

____________________________________________

4
The trial court found that Section 5328(a)(5) and (6) did not favor either
party. Further, it found that Section 5328(a)(7) and (11) are not relevant to
this case.
5
Mother acknowledged on cross-examination that the gas for her home was
red-tagged, or shut off, during the past winter and remained red-tagged at
the time of the subject proceedings. N.T., 8/26/14, at 102-103, 133-134.

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J-S13029-15

With respect to Section 5328(a)(9), i.e., assessing which party is more

likely to maintain a loving, stable, consistent and nurturing relationship with

the [C]hildren adequate for their emotional needs, the trial court found that,

“Mother is so caught up in her own issues, bogged down by her own

difficulties, and unable to maintain structure … that she can make no case

she would be remotely equal to [ ] Father who demonstrates all those

qualities in abundance.” Trial Court Opinion, 9/16/14, at 14.

The trial court summed up its decision to deny Mother’s petition for

modification of the existing custody order by stating as follows.

In closing, as we noted in December 2010, this is an
extremely difficult Opinion to write. No fact finder or
[c]ourt could take pleasure in confronting this Mother
with the harsh reality of her own behavior when, in
fact, we are convinced she has very little control
over it due to her mental health issues. However,
we cannot change the fact that custody opinions are
about the best interest of children and not in the
best interest of a mother who clearly needs to be
affirmed and feels she has been taken advantage of
by everyone involved at every opportunity. The best
we can do for this Mother is affirm that we believe
her intentions are good. Her performance and
demonstrated abilities, however, establish
overwhelmingly that the best interest of the
[C]hildren lies with remaining in the primary
[physical] custody of their Father.

Id. at 20.

Upon careful review of the certified record, including the notes of

testimony, the parties’ briefs, the trial court opinions entered September 16,

2014, and January 26, 2011, and the applicable law, we discern no error of

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J-S13029-15

law or abuse of discretion by the trial court in its custody decision.6

Accordingly, we adopt the trial court’s opinions as dispositive of Mother’s

issues on appeal. See Trial Court Opinions, 9/16/14 and 1/26/11. The

parties are directed to attach a redacted copy7 of the trial court’s opinions in

the event of further proceedings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2015

____________________________________________

6
To the extent Mother argues that the trial court erred by describing her
mental health condition within the context of Section 5328(a)(14), the
history of drug or alcohol abuse of a party, we conclude that this error was
harmless. The subject proceedings did not reveal any drug or alcohol abuse
by either party. Likewise, the trial court did not find any drug or alcohol
abuse by Mother or Father. We recognize that the trial court discussed
Mother’s mental health in the context of Section 5328(a)(14), rather than
under Section 5328(a)(15), the mental and physical condition of a party, but
we conclude that it did not result in any prejudice to Mother as drug or
alcohol abuse by either party was not a basis for the trial court’s conclusion.
7
The copies shall include the redacted names of Mother, Father, and the
Children.

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 Circulated 04/29/2015 11:17 AM

c. s. COURT OF COMMON PLEAS OF
BLAIR COUNTY, PENNSYLVANIA
Plaintiff

vs. 07 GN 6039

·T.S,
Defendant

HON. HIRAM A. CARPENTER III PRESIDING JUDGE

EDWARD·E. ZANG, ESQUIRE COUNSEL FOR PLAINTIFF

LUCAS KELLEHER, ESQUIRE COUNSEL F9R DEFENDANT

OPINION AND ORDER

This matter comes before the Court on request of the mother for an Evidentiary

Hearing to determine custody of the parties' children, A.S. born November

14, 2000, and J. S. born February 22, 2006. An Evidentiary Hearing was held to

a conclusion on December 21, 2010. We interviewed A,S, on December 22, 2010.

The record is closed and the case is ready for decision.

At the outset, we note that although the mother petitioned for this evidentiary

hearing, each of the parents believes the parties' present custody arrangement reflected by

the Court Orders of September 1, 2009, and June 21, 2010, are not serving the best interest

of these two minor children.

From the mother's perspective, she believes that an Order either establishing her as

the primary custodian or reflecting a custody arrangement closer to 50/50 would be best.

She also believes the father's extensive use of babysitters when he is working is not in the

chilchildr en chi91d
 Circulated 04/29/2015 11:17 AM

children's best interest and those times should be spent with her. The mother has little

respect for the father.

She has a firmly entrenched belief the father is not 'there" for the children. The

mother suffers from a personality disorder which is a major factor in the case.

The father presents as having made reasonable efforts to work with the mother

where custody is concerned to little avail. Presently, he believes the numerous exchanges

involved in implementing the present custody Orders are not in the best interest of the

'Children. He suggests the mother's time be reduced to one night a week for a few hours

together with every other weekend.

The case was unusual in that the father's former counsel (Attorney Lee Sill) testified

as to the circumstances surrounding their September 1, 2009, Order. The mother believes

she was taken advantage of in that negotiation by father's counsel when she was

unrepresented. Although we heard this testimony, it is not critical to our determination for

two reasons. First, if the mother offers the testimony to demonstrate it was always her

intention to serve as primary custodian, we would believe her even without this testimony.

We do not question the mother's sincere interest in the children irrespective of whatever

Order might have been entered on September 1, 2009. Second, significant time has passed

(over sixteen months) since that Order was entered. Simply put, the case is not about

whether the Order entered in September, 2009 was appropriate - rather, the case is about

the best interest of the children as we sign this Opinion and Order in January, 2011.

Finally, while our observation of the mother at our hearing of December 21, 2010, suggests

that negotiating with her was risky, we acknowledge we did not see her in September, 2009

nor were we a party to what extent other family members may have been involved on her

behalf in helping her understand the document to which she "agreed." In any case, we are
 Circulated 04/29/2015 11:17 AM

neither bound by the September 1, 2009, Order not do we conclude from it that the mother

was "abandoning" her children.

Finally, we interviewed A.S. as part of the case. We will discuss that

interview later in this Opinion.

As always, our paramount concern in a case whether it involves custody or

visitation is the best interest and permanent welfare of the child. Commonwealth ex rel

Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981). All other considerations are deemed

-subordinate to the child's physical, intellectual, moral and spiritual well being. In the

interest of Tremayne Quame !dress R., 429 A.2d 40, 43 (1981). Parents do not have a

property right in their children. Whatever claim they may make for either custody or

visitation rights, is to be tested by what is in the best interest of the child. See generally,

Commonwealth ex rel Children's Aid Society v. Gard, 66 A.2d 300 (1949). A custody

decree is not meant to punish a parent or anyone else, its only purpose is to help the child.

In Re: Custody of Temos, 450 A.2d 111 (1982). The clear trend has been to abolish

presumptions in custody disputes. In child custody cases, the Court must continually hew

to the polestar of a child's best interest eschewing presumption and surmise. Morris v.

Morris, 412 A.2d 139, 141 (1979). The Court should avoid mechanical determinations and

focus its analysis on a close scrutiny of all particular facts relevant to determining the

child's best interest. In Re: Custody of Hernandez, 376 A.2d 648, 653 (1977). Further, the

ability to care for a child is to be determined as of the time of the custody hearing, not as of

an earlier time. In Custody of Frank, 423 A.2d 1229 (1980). Decisions must be madeon

the basis of current facts and not the past conduct of the parties. In Re: Leskovich, 385

A.2d 373 (1978). The primary concern in custody matters lies not with the past but with

the present and future. Hooks v. Ellerbe, 390 A.2d 791 (1978). Facts at the time of hearing

3
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are the foundation for the determination of the Court. Augustine v. Augustine, 312 A.2d

477 (1974). Past conduct is not relevant unless it will produce an ongoing negative effect on

the child's welfare. In Re: Leskovich, supra. At hearing, each parent shares the burden

of proving by a preponderance of the evidence that an award of custody to him or her

would serve the best interest of the child. Ramos v. Rios, 378 A.2d 400 (1977). The burden

of proving superior fitness as a parent rests equally with both parties. In Re: Custody of

Hernandez, supra. In considering a change, the trial court is required to consider the

advantages and risks where the minor child is concerned. Continuity and stability are

important elements in a young child's emotional development. Commonwealth ex rel

Jordan v. Jordan, 448 A.2d 1113 (1982). The fact that a stable, long-continued and happy

relationship is developed between the child and one parent may be of critical importance to

the formulation of an appropriate decree. Pamela J.K. v. Roger D.J., 419 A.2d 1301.

. However, while stability is a factor, it is not the sole criteria in a custody action. The fact

that a child has not lived with a parent for a considerable length of time will not alone

defeat that parent's right to custody. In Re: Custody of Hernandez, supra. The

obstruction of a non-custodial parent's right to contact with a child is an extremely serious

matter, especially when it violates Court-ordered visitation or partial custody. Pamela J.K.

v. Roger D.J., supra. A custodial parent's obstruction of the non-custodial parent's right to

visit the child may serve as the basis of an Order changing custody. Pamela J.K. v. Roger

D.J., supra. Additionally, where shared custody is being considered by the Court four

criteria are set forth for the hearing consideration. In Re: Wesley J.K., 445 A.2d 1243

(1982).
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DISCUSSION

At the outset, we acknowledge that the mother's mental health condition and her

resultant behaviors are the key issues in this case. They are matters of great concern to

everyone involved. They affect both her thought process and her judgment. They also

affect her attitude toward the father. This last finding as to her ability to work with the

father is critical. A 50/50 sharing of custody requires considerable ability on the part of the

parents to work together. In this case, we have exactly the opposite situation. In fact, not

only is there an absence of respect and cooperation with the father there is deliberate

undermining of his role.

After hearing the case, we are satisfied of the father's good intentions; his

willingness to work with the mother; his willingness to work with the extended family; and

his high level of involvement with the children. The mother acknowledges none of this.

Instead, her testimony suggests that the father was not there for the children and that he

abandons them for babysitters when he was working. She suggests he has been involved in

relationships which are detrimental to the children despite his obvious high level of

involvement and interest. This represents exactly the type of situation where a 50/50

sharing of custody traditionally does not work. Indeed, were.we to implement such an

arrangement we are satisfied it would not be in the best interest of these children. There

is also the matter of the mother's decision making. Restricting ourselves to the two years

preceding our hearing, the mother has entered the father's home unauthorized, stolen

property from that residence, required the father to seek a PFA simply to protect his

privacy, received a DUI charge and repeatedly made questionable decisions in most aspects

of her life where relationships (including her relationship with the children) are concerned.
 Circulated 04/29/2015 11:17 AM

matter what efforts the father (or the mother's extended family) would make they would

not be enough.

The reality is that rather than a 50/50 sharing of parental duties these children need

a parent who is in charge. That parent has to be the father. Fortunately, the father is well

positioned to accomplish the role. He has made considerable adjustments with his work in

recent months which allow him to be home much more with the children. He is in all other

respects willing and able. He is willing to work with the mother (as best anyone can)

whatever Order the Court enters in spite of the mother's undermining his attempts at new

relationships and generally making a nuisance of herself in his personal life.

Children need stability, permanence, consistency, and support. They also need to be

kept out of custody cases. They are not getting that under the present arrangement.

Unfortunately, the mother's unpredictable behavior extends to them. Recently, the mother

has returned the children to the father on two occasions because of her inability to adjust to

behavior by the children she did not approve. This included most recently returning

A. S, to the father together with three bags of her clothes on Thanksgiving Day as a

punishment. The message that is sent by such an action is not one of discipline but rather

one of rejection. This type of impulsive action by the mother is the rule and not the

exception. One need only read her E Mails to the father (of record in the case) and listen to

her testimony to see how fixed her views are and how impulsively she will act on them.

While we would never accuse the mother of being deliberately physically dangerous to the

children, we have no hesitancy in declaring her behaviors dangerous to their mental health

and well being.
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For all of these reasons, we reach the same (unfortunate) conclusion that the father

reluctantly offered. That is, that the mother's time with the children must be reduced

given the consistent stability, permanence, and support children need.

This decision is regrettable and unpleasant. We are aware the mother has

supportive parents and siblings who would offer every assist. However, we cannot help but

observe that this same extensive support system was in place when she committed every

single misjudgment which has occurred in the approximately two and one half years

leading upto this hearing. Simply put, the mother is unable to control her behaviors

notwithstanding a support system which is there to prevent them.

Finally, we interviewed A.S, That interview (unfortunately) was also·

revealing of the mother as we described her. It was clear A . .S. did not want to be

interviewed. She was clinging to her mother as tightly as her mother seemed to be clinging

to her as we approached her. She left her mother's side only when she was advised by the

mother that the Court was "on our side." Given A. S. 's level of fear, we needed to

know why she was afraid. We asked A, S. what she thought we would talk about.

She told me "you just want to meet me" and to discuss with her "where she would be

residing." Of course, those of you in the room (Counsel and extended Family) will recall

that we did tell everyone we wanted to "meet A.S, " but we would not be discussing

with A~S. where she wanted to live. There is no nuclear rocket science involved in

concluding the mother planted this seed with A. S.~__ ; None of this is surprising as we

have observed the mother: She clearly has trouble interpreting what she hears and

maintainingclear thinking.

Unfortunately, we acknowledge our decision will undoubtedly be hard on the

mother. Much like the father when he testified that he was pleased to see-the mother
 Circulated 04/29/2015 11:17 AM

involved in new male relationships because they could make lier more stable, we suspect

the children provide an anchor for her as well. However, our test is not what will help the

mother - our test is what helps the children. We would recommend to the mother that she

counsel so she can function more appropriately and become a better role model for the

children. If there is to be growth in the ability of the mother to offer these children some

level of consistency it lies in getting help.

Accordingly, consistent with all of the above, we enter the following Order.

1. The father shall have the legal and physical custody of both the parties' minor.

children.

2. The children shall reside primarily with the father.

3. The mother shall have periods of partial custody every Wednesday during the

school year from 3:30 p.m. until 7:00 p.m ..

4. During the summer months, when the children are out of school, the mother shall

have every Wednesday from 9:00 o'clock a.m. until 8:00 o'clock p.m ..

5. The mother shall have partial custody from 3:30 p.m. every other Friday until

Sunday at 6:00 o'clock p.m. year round.

6. The mother shall have one week of vacation with the children in the summer

where her regular weekend visitation will be extended from Friday at 3:30 until the

following Friday at 3:30.

7. The parties shall share Holidays by agreement. However, in no event will the

mother have less than four hours with the children on the Holidays of Christmas,

Thanksgiving, and Easter. Memorial Day, the 4th of July, and Labor Day will be

rotated. In odd numbered years the mother shall have Memorial Day and Labor

Day from 8:00 a.m. until 9:00 o'clock p.m. The father will have the 4th of July
 Circulated 04/29/2015 11:17 AM

Holiday. In even numbered years the father will have Memorial Day and Labor

Day and the mother will have the 4th of July from 9:00 o'clock a.m. until after the

fireworks when they would be returned to the father.

8. Transportation shall be shared with the party having the children to drop them

off at the drop-off point. Transfers shall take place at a public store such as~

Sheetz convenient to the parties by mutual agreement. Both parents may designate

an adult to perform transportation if their personal attendance is prohibited.

9. The children shall be with the mother on Mother's Day from 9:00 o'clock a.m.

until 6:00 o'clock p.m. and with the Father on Father's Day from 9:00 o'clock a.m.

forward. The schedule for these days will take precedence over the normal

schedule.

10. The children's birthday will be spent with whoever has the child on that day.

11. Each party shall keep the other informed of their current address and telephone

number.

12. Each party shall have access to school performance and medical care which shall

be done through the schools and the medical providers who are directed to provide

the information to both parents.

13. Neither party shall engage in any conduct which presents to the children a

negative or hostile view of the other, nor shaJJ they aJJow any third party to act in

such a manner that would hamper the natural love and respect of the children for

either parent.

14. The parties may decide different time arrangements and make decisions for the

children whenever they mutually agree to do so. Nothing in this Agreement is

understood to limit or restrict the ability of the parties to mutually .agree on

9
 5933038 JlJI:EE Q",RPENTER Circulated 04/29/2015 11:17 AM
PAGE 11

terms of this ~· agreement will be followed.
. . ;... ·.~. ;:
15. ALL HO::f.,fflAY
.,,·._:,::.11f:'r:-:,,··
SCHEDULES.
•
SH..,U,LSUPERSEDE ANY OTHER TIME

16. \~ijµ'rtON OF THIS ORDER BY ANY PERSON MAY RESULT IN CIVIL

MrilCRIMINAL
'\?{:'::.:::··<·.·
PENALTIES., INCLUDING PROSECUTION PURSUANT TO
• l~ ...

sk:i;noN
........
2904. OF THE PEN~SYL VANIA CRIMES CODE, INTERFERENCE

'WITH CUSTODY OF CHJLDREN.

17. Jurisdiction of the children shall remain with the Court of Common Pleas of

Blair County, Pennsylvania, unless or until jurisdiction would change under the

Uniform Child Custody Jurisdiction Act,

BY THE COURT,

SA

10
 Circulated 04/29/2015 11:17 AM

IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA

c.s.
Plaintiff

v. NO. i007 GN 6039

TJS,
Defendant

HON. HIRAM A. CARPENTER, III SENIOR JUDGE

EDWARD ZAi'-iG, ESQUIRE COUNSEL FOR PLAINT I FF

TERRY DESPOY, ESQUIRE COUNSEL FOR DEFENDANT

OPINION AND ORDER

This matter comes before the Court on request of the

Mother for an evidentiary hearing to determine custody of the

party's children - A,S. , born November 14, 2000

and .Y, S. , born February 21, 2006. An evidentiary

hearing was held to a conclusion on August 26, 2014. The

record is closed and the case is ready for decision.

Essentially, the Mother comes before the Court offering

that an order entered establishing her as the primary custodian

of the.minor children would be in their best interest. The

Mother offered a number of re~sons why she believes this is

true. Although the Mother's present~tion was somewhat hard to

follow (and inconsistent· in certain regards) her "main"

argument for a change in custody is the Mother's belief she is

-21-·
 Circulated 04/29/2015 11:17 AM

more available to the children than the Father due to his need

to work and resulting use of babysitters to supervise the

children.

In response, while the Father agrees he is required to use

babysitters and does have to work as the only means of

supporting the children financially, he does not believe a

change in primary custody is presently indicated. On the

~ontrary, he believes the present arrangement which has been

the order in the case since our Opinion of January 26, 2011

should be continued in all of its particulars.

As always, our paramount concern in a case whether it

involves custody or visitation is the best interest and
(

permanent welfare of the children. Commonwealth ex rel Pierce

v. Pierce, 493 Pa. 292, 426 A. 2d 555 (1981). All other

considerations are deemed subordinate to the child's physical,

intellectual, moral and spiritual well being. In the ·interest

of Tremayne Quame Idress R., 429 A.2d 40, 43 (1981). Parents

do not have a property right in their children. Whatever claim

they may.make for either custody or visitation rights is to be

tested by what is in the best interest of the children. See

generally Commonwealth ex rel Children's Aid Society v. Gard,

66 A. 2 300 (1949). A custody decree is not meant to punish a

parent or anyone else. Its only purpose is .to help the child.

In Re: Custody of Temos, 4~0 A.2d 111 (1982). The clear trend

2
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 Circulated 04/29/2015 11:17 AM

has been to abolish presumptions in custody disputes. In

children custody cases, the Court must continually hew to the

polestar of a child's best interest eschewing presumption and

surmise. Morris v. Morris, 412 A.2d 139, 141 (1979). The

Court should avoid mechanical determinations and focus its

analysis on a close scrutiny of all particular facts relevant

to determining the child's best interest. In Re: Custody of

Hernandez, 376 A.2d 648, 653 (1977). Further, the ability to

care for a child is to be determined as of the time. of the

custody hearing, not as of an earlier time. In Custody of

Frank, 423 A. 2d 1229 (1980). Decisions must be made on the

basis of current facts and not the past conduct of ~he parties.

In Re: Leskovich, 385 A.2d 373 (1978). The primary concern in

custody matters lies not with the past but with the present and

future. Hooks v. Ellerbe, 390 A.2d 791 (1978). Facts at the

time 6f hearing are the foundation for the determination of the

Court. Augustine v. Augustine, 312 A.2d 477 (1974). At

hearing, each parent shares the burden of proving by a

preponderance of the evidence that an award of custody to him

or her wou~d serve the best interest of the child. Ramos v.

Rios, 378 A.2d 400 (1977). Continuity and stability are

· important elements in a young child's emotional development.

Commonwealth ex rel Jordan v. Jordan, 448 A.2d 1113 (1982).

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3
 Circulated 04/29/2015 11:17 AM

The· principles enunciated above are time honored in

Pennsylvania law. More recently, howev~r, as a result of the

Pennsylvania's adoption of the new Child Custody Act at 23

Pa.C.S.A. §5328(a), that act directs that when a party files a

petition for modification of a custody order, the trial court

must perform a "best interest of the child" analysis

considering all of the Section 5328(a) factors. Those factors

are as follows:

1) Which party is more likely to encourage
and permit frequent and continuing contact
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 contin0ed risk of harm to the child or
an abused party and which party can better
provide adequate physical safeguards and
supervision of the child.

3) The parental duties performed by each party on
behalf of the child.

4) The need for stability and continuity in the
child's education, family life and community
life.

5) The availability of extended family.

6) The child's sibling relationships.

7) The well-reasoned preference of the child,
based on the child's maturity and judgment.

8) The attempts of a parent to turn the child
against other parent, except in case of domestic
· violence where reasonable· safety measures are
necessary to protect the child from harm.

9) Which party is more likely to maintain a ioving,

4 -24-
 Circulated 04/29/2015 11:17 AM

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, physic~l, emotional, developmental,
educational and.~pecial needs of the child.

11) The proximity of the residences of the parties.

12) Each party's ability to care for- the child or
ability to make appropriate child-ca~e
arrangements.

13) The level of conflict between the parties and the
willingness and ability of the parties to
cooperate with one another. A party~s effort to
protect a child from abuse by another party is
not evidence of unwillingness of inability to
cooperate with that party.

14) The history of drug or alcohol abuse of a party
or member of· a party's household.

'15) The mental and physical condition of a party
or member of a party's household.

16) Any other relevant factor.

As the language of the Act suggests, these factors are notI

the only factors a Court may consider. However, they are to be

included as part of the analys~s.

DISCUSSION

At the butset, we acknowledge this Court also heard this

matter previously at a custody evidentiary proceeding over

three and a half years ago on December 2.1., 2010 and December

· · 2 2, 2 010 to a conclusion.-· ·We .i ncorpo r at;e 1:hcJ.t Opi n j on in its

5
-25-
 Circulated 04/29/2015 11:17 AM

entirety as part of our current Opinion. Indeed, based on the

record created at the present hearing that Opinion remains

extremely accurate as to the issues in the case and, given this

opportunity, we would not change a single word of our earlier

writing (notwithstanding the passage of almost four years) as

accurately reflecting the situation both as it existed then and

as ·it exists now. In fact, most of the ~other's presentation

involved a repeat of what we heard at that time.

In updating the matter, which is essentially what occurred

at this hearing, this can be fairly accomplished using the

statutory custody factors as our format. Accordingly, we

proceed to a discussion of the individual factors as the format

for this Opinion.

1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.

This issue clearly favors the Father. In fact, the

Father's testimony that he receives many requests for

additional time beyond the every Wednesday and every other

~eekend time which is presently ordered for the Mother is

confirmed by her. The Father's response to those requests is

telling as to his attitude. Since the requests are numerous,

he evaluates them on a case by case basis. He tries to be fair

considering what people are involved in the extra time, what

activities might be fuh for the children with their Mother, the

6 -26-
 Circulated 04/29/2015 11:17 AM

event or situation which triggers the request for additional

time, and his own plans (if any). Frankly, this response by

the Father is not only reasonable but comi~endable given what he

is confronting - namely;-actions on the part of the Mother

which would make most parents "over the edge" and probably

involve the police. We site to two specific examples from the

testimony which are typical of what this Father is forced to

confront. The first is the Mother's admission she appears at

the Father's house on numerous occasions (and randomly) to get

the children off to school even though the children reside with

him. To accomplish this, she not only waits at the bus stop

but goes to the Father's home and knocks on the door. In her

testimony, the Mother not only confirms this behavior but

believes it is justified as "she just wants to see the kids''.

It could hardly get more obtuse than that. Despite this clear

invasion of his privacy and his own demonstrated ability to get

the children off to school in an orderly fashion, the Father is

remarkably poised and restrained in dealini with this. The

Father is ~learly sensitive to the Mother's situation, her

impulsive tendencies, and her consistent behavior which

suggests she does not understand the consequences of her

actions (all confirmed by her mental health records).

For her p~rt, the Mother, while offering she would "be

flexible", has shown herself to be anything but. At hearing,

"" .7 -27-
 Circulated 04/29/2015 11:17 AM

the Father produced Defendant's Exhibits #1 and #2 as examples

of the difficulty in working with the Mother. The bottom line

of these exhibits shows that when the Father wished to move the

pick up. time for the Mother from summer camp one-half hour on

Friday to allow A.S. to participate in a field trip while

offering one-half hour on Sunday at the time of the children's

return (to balance any loss of time) he met with resistance.

To encounter that over such a simple change which could be so

fairly implemented and was so well explained in counsel's July

5, 2011 proposal offers a concrete basis for a conclusion the

Mother, in fact, lacks flexibility where the children are

concerned. Nothing has occurred since that incident which

suggests otherwise. In fact, the Father offers he has "given

up" trying to ask for any flexibility in the order so it is all

on·his shoulders if any flexibility is to be achieved.

That reality which the Father confronts is certainly a

large (and justifiable) reason why he was resistive to counsel

for the Mother's overtures that the Mother be used more during

periods.when babysitters are involved than she is presently.

In fact, the Father testified he had attempted this and it had

been a "disaster" as he characterized it. Thus, the Father's

request that the status quo continue to be the order while he

attempts to achieve what flexibility he can working with the

8
-28-
 Circulated 04/29/2015 11:17 AM

Mother while at the same time having some control over the

situation makes sense.

2) The present and past abuse com,~itted by a party or
member of th~ party's hou s eho Ld, 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 su;perv:i~ion.
of the child.

Neither of these parents claims that abuse is a major

issue in the case. The Mother does, however, question th~

safeguards and supervision provided by the Father in his use of

babysitters. In this regard, the Mother has not hesitated to

be an active intervenor by going to the Fath~r's·horne (without

permission), checking on __ who is doing the babysitting, and on

at least one occasion per the Mother's testimony getting "into

it" with the mother of one of the babysitters. All this is

again indicative of the Mother's impulsive behavior and lack of

consideration of the consequences of that behavior.

Seen from this perspective, the Mother's intrusiveness

makes this more difficult for the Father in attempting to

achieve an orderly situation for the children while providing

the supervision necessary for him to work. Indeed, the

Mother's interventions seem to know no boundaries. Even the

day of this hearing she had been at the Father's home as the

children were leaving (since it was the first day of school)

without permission and unannounced. While this may or may not

constitute some form of abuse by the Mother, this type of

9
-29-
 Circulated 04/29/2015 11:17 AM

interventi6n by her is both typical and viewed by the Mother as

appropriate. The Father deals with it as best he can while

offering_ that the Mother's unannounced appearances do make

AJS, 3nxious - especially since the visits can be

accompanied by argumentative beh~vior.

3) The parental duties performed by each party on behalf
of the child.

While the parties were together (prior to our 2010

hearing) the Father supported the Mother's primary role.

Presently, the Father clearly performs all duties and there is

nothing to suggest the children are neglected in any way or

have any issues in his hous~hold, at school (where both are

remarkably successful), or with their babysitters from his

perspective.

4) The need for stability and continuity in the child's
education, family life and conununity life.

This factor favors the Father overwhelmingly. The

children have now spent the majority of their school time in

the primary custody of their Father. All of their stability

revolves around his household and, in fairness, the established

visitation schedule with their Mother. While the Mother offers

that the children need family and religion and that they are

not getting the latter, the fact is she does not take them to

church when she has them on Sunday herself as she testified.

As to the performance of parental duties, no claim is made by

10 -30-
 Circulated 04/29/2015 11:17 AM

the Mother that the Father is not providing adequate care in

any specific regard.

While we will discuss the Mother's mental health issues

later in this Opinion, it is more than fair to say those

difficulties impact dramatically the stability and continuity

which she could offer the children. Indeed, basic concerns as

to the children being where they need to.be, when they need to

be there, and with the appropriate tools for the event are all

issues were they in their Mother's care. In fa~t, the Mother

demonstrated real difficulty simply staying focused and on task

in response to counsel's questions (this is repeated over and

over again in the record). Her inability to stay on task on

any particular current issue as opposed to relapsing into old

themes and behaviors (all of which occurred prior to our

December 2010 hearing) was the overwhelming impression

listening to her testimony. In fact, the Mother clearly

believes everything which occ~rred since 2010 was contrary to

establishing stability and continuity for the children and was

based on lies, alterations of court records, her being taken

advantagi of by counsel, and her being manipulated by the

Father through the court system. Her beliefs in this regard

are fixed and unchanging. _ We heard them in detail in December

2010 and listened to them repeated (no matter what the original

question was) again and again at our hearing. It is hard to

11 -31-
 Circulated 04/29/2015 11:17 AM

believe a mother so fixated and suffering from the obvious

intellectual deficits from which this Mother suffers with

resulting impulsive behavior could provide stability and

continuity for children of this age.

Beyond that, primary residential custody for now could be

fairly decided without more on the basis the Mother does not

presently have a home in which the children could be placed

even if the Court were inclined to do so. Her present

residence is red tagged and she offered no specific plans for

moving to another property which she owns in Hollidaysburg

located near the Father. At·hearing, she testified both ways

in response to questions regarding the children's schooling.

First, she offered she would use Baker School at her present

residence while later offering she would fix the home up in

Hollidaysburg and move there so the children could maintain

their present school district in Hollidaysburg. This type of

presentation is not reassuring when the home where she has

resided the past twenty-five years is presently red tagged with

no explanation by the Mother how or why she allowed that to

occur or what plan she has to remedy the situation. tompared

to the Father's stable residence, the alternative offered by

the Mother is chaotic to say the least.

5) The availability of extended family.

12
-32~
 Circulated 04/29/2015 11:17 AM

Both extended families are available and important to the

children. While hone of the extended family appeared at our

hearing, we have every reason to believe they are interested

and (especially on the Mother's side) supportive of these

children (if not the Mother's custody of them).

6) The child's sibling relationships.

The children's sibling relationship involve entirely their

interaction with each other. The Father resides with the two

children. There is no one else residing in his residence. The

Mother has had significant others in the past but presently

resides alone (except when the children are with her). The

children spend all of their time with their Father together as

well as the Mother's visitation periods. We heard nothing to

suggest the relationships between them are not normal and

appropriate between a girl entering eight~ grade and a boy

entering third grade.

~) The well-reasoned preference of the child, ba~ed on
the child's maturity and judgment.

We did not interview the children in this case at the

request of the parents. We agree with that decision. Frankly,

this is not (and may never be) a child preference case.

8) The attempts of a parent to turn the child against
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.

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13
 Circulated 04/29/2015 11:17 AM

While neither parent made a claim the other parent was

trying to turn the children against them, the Mother's behavior

of appearing at the Father's household uninvited, unexcused,

and remaining there even after being requested to leave on some

occasions certainly create a possible issue in terms of both

parents' relationships with the children over time.

9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the child
adequate for the child's emotional needs.

As to maintairiing a loving relationship, both of these

parties are committed in that regard. The problem where the

Mother's request for primary custody is concerned is .that there

is no real basis to believe the relationships if she were

primary custodian would be stable, consistent, and nurturing.

The Mother is so caught up in her own issues, bogged down by

her own difficulties, and unable to maintain structure (even

when testifying in a court environment) that she can make no

case she would be remotely equal to a Father who demonstrates

all those qualities in abundance. In fact, the Father's

stability at work, consistency with the children, and tolerance

of many of the Mother's behaviors while acknowledging the

children enjoy their time with her all speak to his superior~ty

on this issue.

10) Which- party is more likely to attend· to the daily,
physical, emotional, developmental, educational and special
needs of the child.

14 -34-
 Circulated 04/29/2015 11:17 AM

This is clearly the Father for all of the reasons stated

to this point in this Opinion (and the additional reasons which

will follow later). In fact, there is no suggestion by anyon~

the children's needs are not being met presently. Further,

there is no claim the children have any special needs beyond

those needs children in their age group would normally

experience.

11) The proximity of the residences of the parties.

In terms of the present custody arrangement, distance is

not a factor in the case since it appears to limit neither

party in implementing the current schedule. If the Mother

moves from Altoona closer to the Father, while this may cause

an increase in problems for the Father in maintaining his

household (due to the Mother's invasion of it) it would not

impact a custody schedule. Of course, the Mother's inability

to move into the home in Hollidaysburg would be an issue

regarding the children attending school there and their

situation become somewhat problematic were we to transfer

custody since we do not really know where th~ Mother would

actually reside.

12) Each parent's ability to care for the child or
ability to make app~opriate child-care arrangement$.

The Father is· well grounded as to what he must do to

maintain his household. It is apparent he is devoted to the

-35-
15
 Circulated 04/29/2015 11:17 AM

children one hundred percent when he is not working.

Otherwise, a combination of school, daycare, camps, and

babysitters fill in the blanks.

From the Mother's standpoint, clearly she is basically

available for the children full time and seems to possess the

ability to use family members and others when necessary. None

of this appears to be inappropriate in any particular.

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.

The Father appears before the Court (just as he did in

December 2010) as remarkably restrained in dealing with this

Mother and willing to continue on that course. Meanwhile, the

Mother continues her same patterns described in our earlier

Opinion of disregarding the Father's role, invading his

privacy, ahd generally making a nuisance of herself in his

household. All the·while, she continues her fixed belief that

she has somehow "been abused". by everyone involved in this in

terms of denying what she views as almost her right tQ custody.

We do not see this changing so that the key to positive

interaction between the parents falls on the Father despite the

fact the Mother's actions do not always recognize his

significance. One change from the earlier hearing in the

Mother's testimony was that she several times referred to the

16
-36-
 Circulated 04/29/2015 11:17 AM

Father as a "good dad"·. This admission was not forthcoming

from her earlier when we heard the matter in 2010.

Notwithstanding, what might seem to be some progress in her

recognition of the Father her actions speak louder than her

words that the Father still stands accused of everything

contained in our earlier Opinion.

14) The history of drug or alcohol abuse of a party or
member of a party's household.

Frankly, this issue (without more) would cause the Court

grave concern were we required to place these children with

their Mother (let alone placing them there when the Father is

behaving positively) . The Mother, by her own descriptions,

suffers from ~DHD, PTSD, and trauma from her 1985 motor vehicle

accident at age sixteen. While.the ADHD and PTSD were not

established as the diagnosis in the medical records, the

impulsive behavior, acting without regard to consequences, and

disorganized thinking on the part of the Mother which are

documented in the mental health records were on full display

both through the Mother's testimony and reviewing her actions

where the children are concerned. In this regard, this Opinion

is almost cruel to th~ Mother in that we do believe she wants

to do none of these things and is, in fact, well intended

toward the children.· The fact this is our.belief, however,

does not change the fact the Mother is simply unable to perform

17 -37-
 Circulated 04/29/2015 11:17 AM

in a manner which demonstrates acceptance of the present

situation, support of the Father, or (lacking the first two) an

ability on her own part to truly serve as primary residential

custodian at this point in time together with the Father.

15) The mental and physical condition of a party or
member of a party's household.

Consistent with the above, it is apparent the current

situation should be maintained. When everything is considered,

not only does the Mother fail to demonstrate her own capacity

to serve as primary residential care parent but there is a

clear showing the children are doing well in the custody of

their Father (babysitters notwithstanding). In fact, we

believe to change residential custody now would be little more

than disastrous since we would be removing the main source of

stability from the children's lives. Accordingly, we affirm

the current order in all of its particulars.

In taking this action, we recognize this continues the

Mother's present difficulty which she expressed at hearing that

the Father is limiting her Wednesday night visits by scheduling

a cheerleading camp for A.S. on Wednesday evening. While

this is regrettable, the Mother's claim that this is something

deliberately set up by the Father is simply untrue. In fact,

the Father outlined in detail the importance of competitive

cheerleading to A.S. and how the combination of changing teams

-38-
18
 Circulated 04/29/2015 11:17 AM

and the coach changing nights evolved into a situation where

beginning this. s umme r A,S,' · s practices were scheduled on

Wednesday night. Given that reality, the Father (because of

his work) could not get A.$ .. to the Wednesday practices so if

he offered the Mother a different night than Wednesday

A.S. simply cannot go to cheerleading. In effect, he gave

the Mother the choice as to whether or not A.S. would go

by leaving it on her night. It would be easy enough for

A,S, to simply be removed from competitive cheer leading if

this is the Mother's wish on her evening. We affirm that. It

seems to us the Father is empowering the Mother to make the.

decision how her evening with the children is spent. If we

give the Mother a different night, A.s.· cannot go to her

cheerleading in any event since the Father cannot get her

there. It is about that simple and we leave it to the Mother

whether A; S, goes to cheerleading or whether she does not.

At hearing, although we invited an alternative solution, no one

offered one.

In closing, as we noted in .December 2010, this is an

extremely difficult Opinion to write. No fact finder or Court

could take pleasure in confronting this Mother with the harsh

reality of her own behavior when, in fact, we are convinced she

has very little control over it due to her mental health

issues. · However, we cannot change the fact that custody

19
-39-
 Circulated 04/29/2015 11:17 AM

opinions are about the best interest of children and not in the

best interest of a mother who clearly needs to be affirmed and

feels she has been taken advantage of by everyone involved at

every opportunity. The best we can do for this Mother is

affirm .that we believe her intentions are good. Her

performance and actual demonstrated abilities, however,

establish overwhelmingly that the best interest of the children

lies with remaining in the primary residential custody of their

Father.

BY THE COURT:

FILED:
ajh

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