C.S. v. B.M.

J-A19023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

B.M.

Appellant No. 2053 WDA 2014

Appeal from the Order Entered November 24, 2014
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD01-08702-004

BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.: FILED OCTOBER 05, 2015

D.M. (“Mother”) appeals from the November 21, 2014 order entered in

the Allegheny County Court of Common Pleas granting C.S. (“Father”)

primary physical and legal custody of Daughter and primary physical custody

and sole legal custody regarding school decisions of Son.1 We affirm.

The trial court set forth the following history:

The parties are parents to two children, Daughter A.S.
(DOB [12/1998]) and Son C.T.S. (DOB [9/2000]).
Litigation on issues of custody began in 2001 and has
continued at a fairly regular pace.2 The parties divorced in
2004, and both have subsequently remarried. Father and
Ca.S. (hereinafter “Stepmother”) have a seven-year-old
son, S.S., who is a half-brother to the children. Mother
has no other children with her current husband, T.M.
(hereinafter “Stepfather.”) The relevant history of the
present custody dispute began roughly in 2012, when
____________________________________________

1
Father chose to not submit an appellate brief.
J-A19023-15

Mother became the primary physical custodian of the
parties’ minor children. Daughter was 13, and Son was
11. Daughter testified that there was a great deal of
tension when she lived with her [m]other. Son apparently
did not have such conflict with Mother. Both children
struggled in school. Son repeated the sixth grade. The
tension between Daughter and Mother continued to the
point where Daughter began hurting herself. The self-
harm culminated with her suicide attempt in April 2013.
Thereafter, Daughter had made it known that she was
victim of Mother’s half-brother’s sexual abuse.
2
The extensive docket is a graphic representation of
the acrimony between the parents.

In April 2013, [the trial c]ourt granted Father interim
physical and legal custody of Daughter. Father petitioned
the [c]ourt to modify custody. Continuations and
disagreements regarding psychological evaluations
extended litigation. The matter was finally heard on
October 24, 2014. The trial was then extended over the
course of three more dates: October 28, 2014, to
November 13, 2014 and ended on November 20, 2014.

On November 20, 2014, after four days[’] worth of
testimony, [the trial c]ourt announced its decision from the
bench and discussed its findings on the record. See T4, at
137-164. That discussion included the [c]ourt’s findings
per the custody factors enumerated in 23 Pa.C.S.A.
§5328(a). The [c]ourt memorialized its decision by way of
the November 21, 2014 [o]rder of [c]ourt, which provoked
the subject appeal.

1925(a) Opinion (“Opinion”), 2/3/2015, at 1-2.

The custody order provides, in relevant part:

AND NOW, this 21st day of November, 2014, after four
days of trial on October 24, 2014, October 28, 2014,
November 13, 2014 and November 20, 2014 to consider
Plaintiff’s Petition to Modify Custody and Defendant’s
Petition for Special Relief with [Father] having appeared
with counsel and [Mother] having appeared with counsel, it
is hereby ORDERED, ADJUDGED, and DECREED as follows:

-2-
J-A19023-15

1. Custody of [Daughter]: Father shall have primary
physical and legal custody of the minor [Daughter].

2. Mother and [Daughter] shall participate in reunification
therapy.

a. Mother shall select and schedule therapy every other
week with [Daughter]. Such therapist shall have an office
within 10 miles of Father’s home. Mother shall schedule
the therapy after school or on weekends and not schedule
the therapy on days where [Daughter] has an activity.

i. For every therapy session, Mother and Father shall
share equally the co-pay with the therapist. Father
shall send his share of the co-pay with [Daughter]. If
[M]other selects a therapist who requires co-pay in
excess of a total of Twenty Dollars ($20.00), Mother
shall pay the remaining balance of the excess co-
pay.

ii. Mother shall pick up and drop off [Daughter] at
Father’s home if [Daughter] agrees. Alternatively,
Mother may arrange for and pay for a taxi service to
take [Daughter] from Father’s house to the therapist
and Father shall pick [Daughter] up from the
therapist after the session. Father and [Stepmother]
shall remain in the home or in the car during the
exchange and shall not communicate in any way with
Mother at the exchange.

iii. Both parents shall be present and attend the
therapy sessions only as specifically directed by the
therapist in advance of the appointment.

b. If Mother and [Daughter] would like to have visits
outside of the therapeutic visits, these visits can be
discussed and scheduled within the therapeutic setting,
and memorialized in writing between [Daughter] and
Mother.

c. Father shall respect such written arrangements including
overnights and weekends at Mother’s home if [Daughter]
agrees.

d. These scheduled visits shall respect [Daughter’s]
already existing obligations and activities.

-3-
J-A19023-15

e. Father shall send a written calendar to each therapeutic
appointment containing any very significant family events
that would create conflicts that would preclude [Daughter]
from scheduling a visit with her mother in the upcoming
month.

f. Mother shall provide all transportation for these visits
with [Daughter].

3. Custody of [Son]: Father shall have primary physical
custody of [Son]. Father shall have sole legal custody with
regards to making school choices for [Son]. Mother and
Father shall share legal custody regarding all other issues.

a. [Son’s] School Year: Father shall have custody of [Son]
during the school year. This schedule shall begin after
Christmas on December 31, 2014 at noon through that
week and the weekend that follows. Mother shall have
every other weekend thereafter beginning Friday after
school, when Mother picks [Son] up at school until Monday
morning before school when Mother shall drop [Son] off at
school.

b. [Son’s] Summer Vacation: Mother shall have custody of
[Son] primarily during the summer vacation from school.
Mother’s schedule with [Son] shall begin the first Friday
after the last day of school until the Friday of the following
week at 4:00 p.m. when Father’s weekend shall begin.
Then Father shall have every other weekend during the
summer beginning Friday at 4:00 p.m. until Monday
morning before Father starts work when he will drop [Son]
off at Mother’s home. Father shall pick up and drop off
[Son] from Mother’s home and remain in his car during the
exchange and shall not communicate in any way with
Mother at the exchange.

...

Order, 11/21/2014.

Mother filed a timely notice of appeal and statement of matters

complained of on appeal. The trial court filed an opinion pursuant to

Pennsylvania Rule of Appellate Procedure 1925.

-4-
J-A19023-15

At argument before this Court on July 7, 2015, it became apparent

that proceedings subsequent to the November 21, 2014 custody order had

occurred in the trial court, which potentially impacted the custody order. On

August 11, 2015, this Court remanded to the trial court to supplement the

record or conduct additional hearings as necessary.2 On August 20, 2015,

the trial court filed “Further Findings of Fact,” clarifying that the June, 2015

conciliation proceedings addressed a motion for contempt3 filed by Mother

and resulted in an interim order temporarily providing custody of Daughter

to Mother because Father was not permitting Daughter to visit Mother as

Daughter wanted. Further Findings of Facts at 2; Interim Order of Court,
____________________________________________

2
This Court’s August 11, 2015 Judgment Order vacated the November 2014
trial court order. On September 10, 2015, this Court amended its August
11, 2015 Judgment Order to reinstate the November Order.
3
Mother entitled the pro se motion a “petition for custody,” but the court
interpreted it as a motion for contempt because Father refused to release
Daughter. The trial court explained:

[D]ue to the grave safety concerns, the allegations of
contempt, and [the trial court’s] knowledge of Daughter’s
mental health issue, [the trial court] set the matter for a
conciliation to discuss matters for contempt and issues of
safety and arranged for an in camera interview with
Daughter to determine how best to proceed. On June 17,
2015, following the conciliation and interview with
Daughter, [the trial court] allowed Daughter to stay with
Mother on an interim basis while Daughter discussed in
therapy with her parents and a mental health professional
her desire to move to Mississippi with paternal aunt.

Further Findings of Fact at 2.

-5-
J-A19023-15

6/17/2015. The June order did not alter the November custody order, which

permitted Mother and Daughter to agree to visits outside of therapy.

Further Findings of Fact at 3. On August 20, 2015, the trial court issued an

order vacating its June Order.4

Mother raises the following claims:

1. Whether the trial court ignored the best interest of the
child and erred by granting [M]other no partial custody of
Daughter (except to take her to counseling) which is
detrimental to the reunification of Mother with the child;

2. Whether the trial court erred in basing its decision to
transfer primary physical custody of Son from Mother to
Father on the child’s grades where there was no credible
record evidence of the same or, to the extent there was
such evidence, in ignoring that the child might simply not
be a stellar student and not every child is capable of
exemplary academic achievement;

3. Whether the trial court ignored the best interest of the
child and erred by granting custody of Son, to Father
given:

a. The child’s strong, unequivocal reasoned
preference to be with Mother;

b. The child’s strained relationship with [Stepmother]
and excellent relationship with [Stepfather];

____________________________________________

4
On July 29, 2015, Father filed a petition for special relief, raising contempt
issues and requesting that Daughter be permitted to attend school in
Mississippi with relatives. Further Findings of Fact at 2-3. The court
conducted another conciliation. The trial court found the contempt issues
moot because the trial court reinstated the November order. Id. at 4-5.
Further, it found the November order would allow Father to send Daughter
to stay with relatives while she continued her schooling. Id. at 5.

-6-
J-A19023-15

c. The need for stability and continuity, in the child’s
life [] by taking the child away from his home,
school, friends, neighborhood, and activities.

Appellant’s Brief at 11.

Our scope and standard of review of child custody orders are as

follows:

[O]ur 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 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.

J.M.R. v. J.M, 1 A.3d 902 (Pa.Super.2010) (quoting Collins v. Collins, 897

A.2d 466, 471 (Pa.Super.2006)).

“The primary concern in any custody case is the best interests of the

child.” J.M.R., 1 A.3d at 900. “The best-interests standard, decided on a

case-by-case basis, considers all factors that legitimately have an effect

upon the child’s physical, intellectual, moral, and spiritual well being.” Id.

(citing Saintz v. Rinker, 902 A.2d 509, 512 (Pa.Super.2006)). When

determining whether modification of a custody order “is in a child’s best

interest, the court has an obligation to consider all relevant factors that

could affect the child’s well-being.” Id. (quoting Ketterer v. Seifert, 902

-7-
J-A19023-15

A.2d 533, 539 (Pa.Super.2006)). Specifically, pursuant to 23 Pa.C.S. §

5328:

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

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

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

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

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

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

(5) The availability of extended family.

(6) The child’s sibling relationships.

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

(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence 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.

-8-
J-A19023-15

(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. § 5328. Further, the “party seeking modification of custody

arrangements has the burden to show that modification is in the child’s best

interest.” Id.

A. Custody of Daughter

Mother’s first issue challenges the trial court order granting Father

primary physical and legal custody of Daughter.

Mother claims the November order, which limits Mother’s visits with

Daughter to semi-weekly reunification counseling sessions and other visits

only if Mother and Daughter agree to meet, violates the public policy of

Pennsylvania, which guards the rights of non-custodial parents. Appellant’s

Brief at 22-24. She further references supervised visitation, which, she

alleges, is employed only for “compelling circumstances” and where it would

-9-
J-A19023-15

be the “least restrictive alternative.” Id. at 24. Mother argues the order

does not even grant supervised visitation, rather it allows Daughter to

determine whether she and Mother will have contact. Id.

Mother argues the trial court’s conclusion that “Daughter is a danger

to herself while in Mother’s care” and its statement that the trial court’s

“concern for Daughter’s safety decided the matter” are not supported by the

record. Appellant’s Brief at 25. Mother claims “[t]he only evidence of any

‘suicide attempt’ was Daughter’s in camera testimony: ‘and then there was a

couple times I tried to kill myself.’” Id. at 25. She claims the only

testimony about a Facebook message was from Mother, who testified

Daughter posted the word “Good-bye” on her Facebook page.

Mother also claims the trial court mischaracterized the testimony

regarding the sexual abuse and harassment of Daughter by Mother’s half-

brother. Appellant’s Brief at 26. Mother claims there were no allegations of

abuse. Rather, Daughter testified the half-brother “sexually harassed” her.

Id. She notes that there were no founded Allegheny County Children Youth

and Families reports or criminal proceedings, no dependency proceedings,

and no evidence at trial that “Mother’s half-brother behaved at all

inappropriately towards Daughter.” Id. at 26-27.

The trial court noted its custody decision was “influenced a great deal

by safety concerns; namely, Daughter is a danger to herself while in

Mother’s care.” Opinion, 2/3/2015, at 4. The trial court made the following

findings:

- 10 -
J-A19023-15

Mother initially had primary physical custody of Daughter
after a trial was held in January 2012. The trial did little to
stop the litigation as the docket remained active in the
months that followed. In April 2013, Daughter sent a
detailed Facebook message to Father’s sister interpreted
by all as a suicide note.[5] Father’s sister informed Father
who informed the police. Daughter testified that she tried
to kill herself. Daughter was then taken to the Sewickley
Valley Hospital emergency room. Thereafter, she checked
herself into a mental health facility called Southwood.
Upon her release two weeks later, Daughter was placed in
Father’s custody in the interim while she received
treatment.

Sometime thereafter, it was revealed that Daughter had
been, for years, sexually abused and sexually harassed by
Mother’s half-brother, who is allegedly a couple years older
than Daughter. At age 12, Daughter reported this to
Mother, but Mother refused to believe her. Worse still,
Mother encouraged Daughter not to say bad things about
the family. To this day, Mother refuses to believe
Daughter despite the fact that Daughter’s accusations have
led to multiple investigations, and despite the fact that
Daughter has sought and received therapy from a variety
of mental health professionals, including the Center for
Traumatic Stress. Mother has refused to believe Daughter
even after she started cutting herself, even after she
started doing poorly in school, and even after Daughter
tried to kill herself. Despite it all, Mother has never spoken
with her half-brother about the allegations. Mother
believes that Father and Stepmother have put the child up
to making such allegations. Mother calls Daughter a lair.
Naturally, this has led to the disintegration of the Mother-
Daughter relationship. Daughter testified that she loves
Mother and that she even misses her. But Daughter was
adamant that she does not trust her. To Daughter’s great
____________________________________________

5
Daughter communicated with her Aunt through Facebook and following
either one of these exchanges or the “Good-bye” message, her Aunt became
concerned and called the police. N.T., 10/24/2014, at 214-15; N.T.,
11/20/2015, at 17-18. Mother took Daughter to Sewickley Valley Hospital.
N.T., 11/20/2015, at 18.

- 11 -
J-A19023-15

credit, she still attempts to salvage her relationship with
her Mother, but on her own terms. Those terms include
reunification therapy and visitation only under conditions
with which Daughter is comfortable.3 But to date, Mother
had largely obstructed the reunification process.
3
Daughter displayed significant maturity as she
outlined her insights and the terms necessary for a
relationship with Mother, while at the same time
protected her ongoing recovery from the abuse.

As to the actual therapy, Daughter testified that Mother
refuses to think that the therapy is for both of them — that
Mother thinks that she is simply taking the child to see a
therapist. Eventually the sessions with the therapist
ceased prematurely, because Mother, allegedly not seeing
the point, refused to pay the $25 co-pay. Apparently
Mother believed that going out to dinner with Daughter
would be better. Mother seemingly argued that Father
should have to pay the copay, per the child support order’s
language regarding unreimbursed medical expenses. [The
c]ourt also notes its disappointment with Father, as he had
an opportunity to keep the therapy going by paying the co-
pay in full while the issue was resolved. In the absence of
this therapy, Daughter has resorted to seeing the school
counselor once per week.

Mother and Daughter’s visitation has been equally
problematic. In the months prior to trial, [the c]ourt twice
contemplated and adjudicated disputes regarding the
visitation arrangement between Mother and Daughter. The
first was after the [c]ourt interviewed the child during a
conciliation, which resulted in the April 28, 2014 [o]rder of
[c]ourt. Another [o]rder of [c]ourt was issued on July 10,
2014, adding the specificity which was apparently lacking
in the first order. The visitation arrangement was
designed to be in public (a Starbucks at an outdoor mall),
brief, and somewhat supervised by Father so that
Daughter felt comfortable and safe. Daughter requested,
and this Court ordered, that Father was to sit a few tables
away so that Daughter could feel it was within her power
to leave if the visit soured. So as to make Daughter feel
that it was within her power to get up and leave of her
own free will, Daughter requested, and [the c]ourt
ordered, that Father was to sit a few tables away. The

- 12 -
J-A19023-15

supervision was necessary so that Daughter could
terminate the conversation if she felt manipulated, or
“pulled in” by Mother’s words. Despite [the c]ourt’s careful
explanation of said arrangement, Mother feigned ignorance
and proceeded with a disturbing lack of compassion for the
trauma that Daughter faced.

In two instances, Mother invited to the visitation Mother’s
girlfriends, all of whom were old family friends who have
children Daughter’s age. In one visit, two of Mother’s
friends sought to catch up with Daughter and remind her
of friends that Daughter has not seen since she left
Mother’s custody. In the next visit, Mother sent these
same friends to let Daughter know that she was running
late to the visit. At best, such decisions represent Mother’s
poor judgment. The fact that Mother sought to catch up
with old friends and invite them to her Daughter’s
reunification visitations, or, that she ran 15 minutes late to
a one-hour, once-weekly reunification visit, could be
indicative of a belief that such visits are not particularly
serious. Perhaps that was the case. At worst, Mother’s
moves were designed to play on Daughter’s guilt for
leaving Mother (and especially Son) and to create conflict
with Father. Mother’s testimony regarding these visits was
simply not believable and such testimony seriously
damaged her credibility.

Mother testified that Mother and Daughter were very
happy to see each other at one of the visits, where they
talked about memories and old pictures. Mother testified
that Daughter is very happy to see her but that Daughter
will “switch” when Father makes his presence known
during the visitation. Daughter has asked Mother to
apologize for not believing her sexual abuse claims.
Mother thinks that is strange and that Father is putting
Daughter up to it. Mother thinks that Daughter speaks
and acts coolly toward her because Father is around.
Mother is blinded by her belief that the disintegration of
her relationship with Daughter is of Father and
Stepmother’s doing, not her own. For his part, Father
handled the situation terribly. He was publicly
argumentative and disparaging in front of Daughter. If
Father thought his response to Mother’s transgression was
justified, he is sorely mistaken and would do well to act
more appropriately.

- 13 -
J-A19023-15

The [c]ourt takes the time to detail these aspects, because
its decision to keep Daughter with Father is fundamentally
one of safety.

Opinion, 2/3/2015, at 4-7 (internal citations omitted).

Additionally, the trial court conducted a comprehensive discussion of

the custody factors following the trial. See N.T., 11/20/2014, at 137-150

(finding: (1) neither party would encourage and permit frequent and

continuing contact with Daughter and other party; (2) Daughter was victim

of sexual assault in Mother’s care, which Mother would not acknowledge; (3)

Father provided safe and stable household for Daughter; (4) Daughter

“transferred allegiance to [Father’s] household and community and has

made a successful transition to the academic and social environment” at her

new school; (5) no evidence of extended family, except stepparents, who

have been supportive of Daughter; (6) sibling relationship is important; (7)

both parents have attempted to turn Daughter against other parent; (8)

Father has more stable, consistent, and nurturing relationship for Daughter’s

current needs; (9) Father more likely to attend to educational, emotional,

physical and developmental needs of Daughter; (10) no history of drug and

alcohol abuse; and (11) no issue of physical or mental condition that would

impact case; and awarding primary physical and legal custody of Daughter

to Father and requiring Mother and Daughter to attend therapy and,

permitting additional visits if Mother and Daughter agreed). The court also

made factual findings and discussed the custody factors in its 1925(a)

opinion. Opinion, 2/3/2015, at 4-9, 17 (noting: (1) Mother refused to

- 14 -
J-A19023-15

believe Daughter was abused or that therapy was for both Mother and

Daughter; (2) Mother and Daughter visits have been problematic; (3) Father

has obstructed the reunification of Mother and Daughter; (4) court’s

“concern for Daughter’s safety decided the matter”; and (5) although

Daughter expressed desire to have relationship with Mother, “[b]ecause her

relationship was so damaged with [Mother], and because Daughter has

excelled in her recovery under Father’s custody, [the court found] Father is

more likely to maintain the right parental relationship necessary for

Daughter’s emotional needs” and finding: (1) neither party encourages and

permits frequent and continuing contact between Child and other party; (2)

threat of abuse of Daughter no longer present, but Daughter is threat to

herself if in Mother’s care; (3) Father performed all parental duties well; (4)

need for stability and continuity is paramount and increased forced visitation

or custody would jeopardize recovery; (5) Mother did not discuss extended

family at trial and schedule would not prevent Daughter from seeing

Mother’s extended family; (6) Daughter and Son bond is extremely close;

(7) Daughter had clear preference to stay with Father; (8) Father should not

disparage Mother in front of Daughter and should not obstruct a relationship

with Mother; (9) Father more likely to maintain the right parental

relationship necessary for Daughter’s emotional needs; (10) Father more

likely to attend to daily physical and emotional, developmental, educational

and special needs, given Daughter’s trauma and emotional recovery; (11)

distance between residences is roughly 45 minutes; (12) both parents able

- 15 -
J-A19023-15

to make appropriate child care arrangements; and (13) no concerns

regarding drugs and alcohol).

After a thorough review of the record, we find the trial court’s

conclusions are reasonable and it did not err in granting primary custody of

Daughter to Father.

B. Custody of Son

Mother next challenges the trial court’s order granting Father primary

physical custody and sole legal custody as to educational decisions of Son.

Mother claims the “only reason” the trial court removed Son from

Mother’s primary care and his school was his “grades” and there was no

evidence of Son’s grades admitted at the hearing. Appellant’s Brief at 30-

32. This argument lacks merit.

The trial court noted that “[i]t is not the case that Son was removed

from his Mother[] because he did not do his homework. The issue is far

more complex than the simplicity with which Mother argues it.” Opinion,

2/3/2015, at 10. The trial court found Son struggled for years, was held

back in the sixth grade, nearly had to repeat it again, and almost failed

seventh grade. Id. at 11. At the time of trial, Son was failing a third of his

classes. Id. The trial court then noted “[m]ore worrisome for the [c]ourt

than, say, a score on a project, is that Son stated that he is being called

stupid by his classmates,” and he was “very compelling” when he spoke on

the topic. Id. at 11. The trial court found Mother’s testimony “problematic,”

noting Mother gave “an unreasonable amount of weight to Son’s social life.”

- 16 -
J-A19023-15

Id. Mother testified to Son’s popularity at school, “referred to him as the

ring-leader of the neighborhood,” and said his friends were “free to come

over his house on the weekends.” Id. The court noted “given[] Son’s fairly

significant difficultly in school, [it had] to question Mother’s parenting

priorities.” Id. The trial court then noted that there was a “strong indication

that Son is not getting the parenting support he needs at home with

Mother.” Id. at 12. Son demonstrated the ability to succeed and was

sensitive to his poor school performance. Id. The trial court was not

convinced Mother was attentive to his needs and found Father was better

suited to provide educational care. Id.

Mother next argues that Son wanted to stay with Mother and the trial

court erred in not following Son’s wishes. Appellant’s Brief at 34-35. Mother

also argues the court erred because Son had a strained relationship with

Stepmother, but an excellent relationship with Stepfather. Appellant’s Brief

at 35. Mother also contends the trial court erred by granting Father primary

custody of Son due to the need for stability and continuity in Son’s life.

Appellant’s Brief at 38-42. Mother claims the trial court failed to safeguard

Son’s “basic physical and psychological needs” in regard to school choice.

Id. at 39. This claim also lacks merit.

The trial court found Son’s preferences were not strong and

unequivocal. Opinion, 2/3/2015, at 12. Son wanted to live with both

parents, does not like it when Father and Stepmother make disparaging

comments about Mother and Stepfather, and is particularly sensitive to

- 17 -
J-A19023-15

name-calling when sister bickers with Father and Stepmother. Id. at 13.

However, Stepmother was the biggest disciplinarian, which impacts a

middle-schooler’s preference. Id. Further, the trial court noted that Mother

has “at times, set Son up for failure,” including not informing him about a

scheduled vacation with Father and forcing him to choose whether to stay

with Mother or go with Father on Father’s scheduled weekend. Id. at 13-14.

The trial court noted Son’s excellent relationship with Stepfather was just

one of many factors. Id. at 15.

The trial court also discussed stability and continuity. It noted Son

had a good group of friends, and the custody change would affect the

relationships. Opinion, 2/3/2015, at 16. However, Son had done poorly in

school and the trial court found the change in schools was in Son’s best

interest. Id. The court noted there was a chance Son would be unable to

participate in his extracurricular activities next year if his grades did not

improve and the extracurricular activities were a big reason he lacked the

time and energy to concentrate on his schoolwork. Id. at 16-17. The court

noted it would be difficult for Son to spend less time with Mother and

Stepfather, but found the parties’ locations, which were 45 minutes from

each other, did not permit another arrangement. Id. at 17.

Further, the trial court thoroughly discussed the custody factors

following the trial. N.T., 11/20/2014, at 150-164 (finding: (1) neither party

encourages contact with the other; (2) one abuse issue with Stepfather, but

Son did not take seriously and trial court did not see it as an issue; (3) Son

- 18 -
J-A19023-15

has a home with both parties, but has not been doing well in school with

Mother; (4) stability and continuity favor Mother; (5) Son’s preference is to

reside with Mother; (6) Mother more likely to maintain loving, stable,

consistent and nurturing relationship; (7) Father more likely to attend to

physical, emotional, developmental, educational and special needs of Son;

and (8) because of lack of proximity of residences, Son will reside with

Father during school year). The trial court also made findings as to the

factors in its 1925(a) opinion. See Trial Court Opinion, 2/3/2015, at 9-18

(finding: (1) ample evidence Mother tried to turn Son against Father by

withholding Son and preventing regular contact; (2) both parties offer safe

environments for Son; (3) both parents perform parental duties for Son and

can provide for his emotional needs; (4) change “comes at a cost to the

world with which Son is accustomed, but stability and continuity for the sake

of stability and continuity does not outweigh the other relevant factors”; (5)

extended family not discussed at trial and custody schedule would not

prevent Son from seeing Mother’s extended family; (6) bond between

Daughter and Son is extremely close and Son will be able to spend more

time with his half-brother; (7) Son’s preference was not strong and

unequivocal; (8) evidence Mother tried to turn Son against Father; (9) both

family can provide for Son’s emotional needs; (10) Father is best suited to

attend to Son’s developmental, educational, and special needs; (11)

distance between parties prevents an alternative arrangement; (12) both

parents are able to make appropriate child care arrangements; (13) Son’s

- 19 -
J-A19023-15

best chance for having healthy relationship with both parents is if Father has

primary custody; (14) there are no allegations of drug or alcohol abuse; and

(15) Both offer safe environments for Son).

The trial court’s conclusions are reasonable and it did not err in

awarding primary physical custody of Son to Father and sole legal custody

regarding school decisions of Son to Father.

Order affirmed.6

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/5/2015

____________________________________________

6
Appellant’s “Application for Relief Pursuant to Pa.R.A.P. 123 Ancillary to
Pending Appeal and Petition for Review Pursuant to Pa.R.A.P. 1501(A)(3) –
Writ of Mandamus and Prohibition” is denied.

- 20 -