B.D. v. C.D.

J-S25045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

B.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
C.D. : No. 1902 WDA 2015

Appeal from the Decree November 6, 2015 in the Court
of Common Pleas of Allegheny County Civil Division at
No(s): No. FD 09-008969-005

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, JENKINS, JJ.

MEMORANDUM BY JENKINS, J.: FILED: July 14, 2016

Appellant, B.D. (“Mother”), appeals from the order entered October 6,

2015, which modified the parties’ March 1, 2010, amended custody order.

We affirm.

Mother and C.D. (“Father”) separated in 2009 and divorced in August

of 2010. Mother and Father have one child together, C.D. (born in March of

2008) (“Child”). On October 18, 2009, Father filed a petition for custody of

Child. On March 1, 2010, the trial court awarded Mother primary custody of

Child, and awarded Father partial custody. The order directed Father to

supervise any contact that D.D., Child’s paternal grandfather (“Paternal

Grandfather”), had with Child until Child reached the age of seven.
J-S25045-16

On May 16, 2013, the custody order was modified providing that Child

would have no contact with Paternal Grandfather, pending an evaluation of

Paternal Grandfather by Robert Coufal, Ph.D.,1 because of allegations by

Mother that Paternal Grandfather had engaged in improper behavior with

Child. The alleged improper behavior consisted of Paternal Grandfather

allegedly showing Child naked adults on his cell phone, and allegedly

exposing himself to Child while they were swimming in a lake. On

December 10, 2013, the trial court permitted Paternal Grandfather to have

contact with Child as long as their visits were supervised by Father and a

court-specified family member.

On September 19, 2014, Father filed a petition for modification of the

custody order and requested shared physical and shared legal custody of

Child. On April 14, 2015, the trial court dismissed Father’s petition for

modification. On April 21, 2015, the trial court vacated the order of April

14, 2015 because it was entered in error. On May 18, 2015, Father

amended his petition for modification to request primary custody of Child.

On June 16, 2015, Mother filed an answer to Father’s petition. On October

14, 2015 and October 15, 2015, hearings were held on Father’s amended

petition. During the hearings, A.H., Father’s former sister-in-law; J.

____________________________________________

1
Dr. Coufal evaluated Paternal Grandfather and determined Paternal
Grandfather did not have a sexual interest in children.

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J-S25045-16

Anthony McGroarty, Ph.D.; J.W., Mother’s boyfriend; D.D., Child’s Maternal

Grandmother; B.B, Father’s uncle; C.S., Mother’s brother; C.S., a school

resource officer; S.S., Mother’s sister-in-law; Mother; and Father testified.

By order entered November 5, 2015, the trial court continued the

parties’ shared legal custody of Child. In addition, the trial court awarded

Mother and Father shared physical custody of Child as follows:

a. Father shall have physical custody every other weekend from
Friday at 5:15 p.m. through Sunday at 6:15 p.m.

b. Father shall have physical custody every Tuesday evening
from 5:15 p.m. through 8:15 p.m.

c. Father shall have physical custody every other week from
Thursday after school until 8:15 p.m. Said custody shall be
exercised on the weeks Father does not exercise custody from
Friday at 5:15 p.m. through Sunday at 6:15 p.m.

d. Mother shall exercise physical custody at all times not
otherwise specified above.

e. Either party may exercise additional or alternative custody
periods as the parties mutually agree.

Trial Court Order, 11/5/15, at 1-2 (unpaginated). During the summer, the

trial court directed that the parties “share custody on a week on/week off

basis.” Id.

On December 4, 2015, Mother timely filed a notice of appeal and a

concise statement of errors complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b). The trial

court filed a Rule 1925(a) opinion on November 25, 2015.

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J-S25045-16

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

1. Whether the trial court committed an abuse of discretion
and/or error of law when it denied [Appellant] a [t]ransfer of
[v]enue to a courthouse where [Appellee] is not an Allegheny
County Family Court Sheriff’s Deputy[?] In the [trial c]ourt’s
May 28, 2015 [o]rder, it was cited, “To seek a change in
venue now certainly appears to be due to dissatisfaction with
the result and hope that another forum would produce a
different result [], prior to the trial even beginning[?]

2. Whether the trial court committed an[ ] abuse [of] its
discretion/error of law when it honored [Appellee]’s request
and denied [Appellant] discovery[?]

3. Whether the trial court committed an abuse of discretion/or
error of law when it established a shared arrangement during
the summer months is appropriate, where overwhelming
witness testimony, [c]hild forensic interviews and testimony
divulged significant safety concerns in modifying Child’s
custody and granting unsupervised time with paternal
grandparents[?]

Mother’s brief at 6.2

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

In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
____________________________________________

2
Mother did not present her first and second claims in her Rule 1925(b)
statement of errors on appeal. Therefore, we find that Mother waived these
issues on appeal. See Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa.Super.2006) (holding that an
appellant waives issues that are not raised in both his or her concise
statement of errors complained of on appeal and the statement of questions
involved in his or her brief on appeal).

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J-S25045-16

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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super.2012) (citation omitted).

Further, we have stated the following.

[T]he 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)).

With any custody case under the Custody Act, 23 Pa.C.S. §§ 5321-

5340, the paramount concern is the best interests of the child. In applying

the Custody Act, the trial court determines a child’s best interests through

consideration of all of the following sixteen factors:

§ 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.

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J-S25045-16

(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.

(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

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J-S25045-16

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.

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).

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.[] § 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).

A.V., supra at 822-823. Instantly, the trial court set forth a detailed and

comprehensive analysis of each custody factor in Section 5328(a) in its

November 6, 2015 opinion accompanying the subject order, which we have

carefully reviewed in light of Mother’s issues on appeal. See Trial Court

Findings and Conclusions, 11/5/15, at 1-4 (unpaginated).

On appeal, Mother argues that the trial court committed an abuse of

discretion when it established a shared arrangement during the summer

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J-S25045-16

months in the face of what she characterized as overwhelming witness

testimony and child forensic interviews that revealed significant safety

concerns to Child. Mother’s brief at 6.

With regard to Mother’s allegations that Paternal Grandfather showed

Child naked adults on his cell phone and exposed himself to Child while they

were swimming in a lake, Dr. McGroarty testified that he relied on Dr.

Coufal’s evaluation of Paternal Grandfather, which concluded that Paternal

Grandfather did not have a sexual interest in children. N.T., 10/15/15, at

31. Dr. McGroarty further testified that he recommended Paternal

Grandfather was safe to be interacting with Child, and that Child appears to

be comfortable with his relationship with Paternal Grandfather. Id. at 32.

Dr. McGroarty testified that Child has a “good relationship with both of his

parents,” Father’s girlfriend, and Child was “not at risk when he was in

custody of [F]ather.” Id. at 32.

The trial court found that “it became clear to me that the Child was

constantly being reminded of this incident by [the] maternal side of the

family,” and the “paternal side of the family was pressing the Child to

recant.” Trial Court opinion, 1/11/16, at 6-7. The trial court concluded,

“Child has been placed in an extremely difficult situation by both sides of his

family and he is feeling the psychological effects.” Id. Moreover, the trial

court found that “[d]rastically restricting [C]hild’s contact with either side of

the family will only make matters worse.” Id.

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J-S25045-16

Furthermore, the trial court found:

Child is entitled to spend significant time with both parents.
Although there is a significant distance between the parents’
homes, during the summer months, when the exigencies of
travel to and from school are absent, there is no reason why
Child should not spend equal amounts of time with both parents.
This finding is also supported by the psychological evaluation of
Dr. McGroarty, who opined: “Based upon the results of this
evaluation, it is my opinion that [Child] is being well-cared for
when he is in the custody of both parents and that his time with
both parents is valuable [to] his development. I do not believe
that his time with his father needs to be limited as it [sic]
[Mother] is suggesting.”

Trial Court Opinion, 1/11/16, at 4 (citations omitted).

Upon careful review, we find that the totality of the record evidence

supports the trial court’s conclusions. In so holding, we give deference to

the trial court on its determinations regarding credibility and weight of the

evidence with respect to finding that a shared arrangement during the

summer months is appropriate. See C.R.F, supra at 443. We find no error

of law, and the trial court’s conclusions are not unreasonable in light of the

record. Accordingly, we affirm the trial court order.

Order affirmed.3

____________________________________________

3
Appellant’s Motion for Modification of the Statement of Errors Complained
of on Appeal is denied.

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J-S25045-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2016

- 10 -
 ) Circulated 06/29/2016 02:36 PM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION

B.D.,

Plaintiff No. FD 09-008969-005

vs. Superior Court No. 1902 WDA 2015
CHILDREN'S FAST TRACK APPEAL
C.D., OPINION
JUDGE K. R. MULLIGAN
Defendant

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Counsel for Defendant:
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Michael DeRiso, Esquire
Mackenzie Grills, Esquire
Law & Finance Building
429 Fourth Avenue, Suite 1801
Pittsburgh, PA 15219

-1-
 i

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION

B.D.,

Plaintiff No. FD 09-008969-005

vs. Superior Court No. 1902 WDA 2015

CHILDREN'SFAST TRACK APPEAL
C.D.,

Defendant

OPINION

K. R. Mulligan, J.

B.D. (hereinafter, Mother) and C.D. (hereinafter, Father) are the natural parents of

one minor child (hereinafter, the Child), (DOB 03/11/2008). Mother and Father separated

in 2009.

In October of 2009, Father filed for custody,.and the parties have been in various

forms of custody litigation throughout the Child's life. The most contentious issue in the

litigation involves allegations that the Child's Paternal Grandfather behaved

inappropriately with the Child on two occasions in the past: first, by allegedly showing

the Child pictures of naked adults on his cell phone, and second, by allegedly exposing

himself to the Child while the two were swimming in a lake. These allegations have been

consistently and vigorously denied by Paternal Grandfather.

Father's initial custody action was resolved by a Consent Order entered on March

1, 2010, in which Mother was awarded primary custody, with Father having partial

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 physical custody; Father was to supervise any contact that Paternal Grandfather had with

the Child until he reached the age of 7. The March 1, 2010 Consent Order was modified

on May 16, 2013 to provide that the Child have no contact with Paternal Grandfather

pending an evaluation by Dr. Robert Coufal and further order of court; on December 10,

2013, Paternal Grandfather was permitted contact with the Child if he were supervised by

Father and a court-specified family member or another person as agreed to by the parties

in writing.

Custody evaluations were performed by Dr. J. Anthony McGroarty, and were

completed on March 5, 2015. The Court heard Mother's petition for a change of venue on

May 28, 2015, which was denied by Order dated July 7, 2015.1 Father's motion to amend

his Custody Petition to Primary Custody was granted on July 7, 2015, and a two-day trial

thereon was conducted on October 14-15, 2015.

On November 5, 2015, following a two-day custody trial, I made extensive

findings and conclusions which reviewed factors in the custody statute. I ordered that

legal custody of the minor child should be shared between Mother and Father; that

Mother should retain primary physical custody during the school year, but that the

parents should equally share physical custody during the summer months; that there

would be no court ordered restriction of the Child's contact with his paternal grandfather;

and that the Child should be enrolled in therapy and that the parents shall alternate in

taking him to appointments. (See Findings, Conclusions and Order of Court dated

November 5, 2015, attached hereto). Mother appeals my November 5, 2015 Order of

Court.

1
Mother did not raise any issue with this interlocutory order in her concise statement.

-3-
 The underlying Order of Court and the record upon which it stands speak largely

for themselves. Mother's specific complaints are as follows, each of which I shall address

briefly in turn:2

1. Thatthe evidence does not demonstratethat "a sharedarrangementduringthe
summermonths is appropriate."See Mother'sStatementof ErrorsComplained of
on Appeal, at paragraph1.

I found that the Child is entitled to spend significant time with both parents.

Although there is a significant distance between the parents' homes, during the summer

months, when the exigencies of travel to and from school are absent; there is no reason

why the Child should not spend equal amounts of time with both parents. This finding is

also supported by the psychological evaluation of Dr. McGroarty, who opined: "Based

upon the results of this evaluation, it is my opinion that [the Child] is being well-cared for

when he is in the custody of both parents and that his time with both parents is valuable

[to] his development. I do not believe that his time with his father needs to be limited as it

[sic] [Mother] is suggesting." (Dr. McGroarty's Report, Exhibit 9, p. 20).

2. Thatthe evidence does not demonstratethat Appellee is "slightly betterable to
encourage and permitcontactbetween the child and mother."See Mother's
Statementof ErrorsComplained of on Appeal, at paragraph2.

As set forth in my findings and conclusions, this was based on the fact that Father

acknowledges that Mother has been a good Mother to the child. Notwithstanding this

finding, I did note that the animosity which each party has for the other makes it difficult

for him/her to encourage contact.

2
Throughout her concise statement, Mother complains of my findings that various matters were established by clear
and convincing evidence. While I understand that Mother is a prose litigant who may not be aware that "clear and
convincing evidence" is a legal term of art, I must note that such language does not reflect the appropriate
evidentiary standard for my findings of fact.

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3. That the evidence does not support court's conclusion that alleged abuse was "in the
past." See Mother's Statement of Errors Complained of on Appeal, at paragraph 3.

There were no allegations of any recent physical abuse. In fact, one of the

problems in this case appears to be Mother's dwelling on past abuse and communicating

this to the Child. I thoroughly analyzed this issue in paragraph 2 of my findings and

conclusions. With respect to Mother's and the child's allegations of anger outbursts, I

noted in paragraph 13 that Father and his family may express their emotions in temper

outbursts to which Mother is not accustomed. One of the reasons counseling was ordered

for the Child was to help him deal with these issues.

4. That the Court disregarded "clear and convincing evidence in Child's forensic
interviews" regarding Father and paternal grandparents. See Mother's Statement
of Errors Complained of on Appeal, at paragraph 4.

Contrary to Mother's assertions, the evidence from the forensic interviews

conducted in this case supports my conclusions. As noted in paragraph 2 of my findings

and conclusions, one of my concerns was that during the third evaluation, the Child

discussed Father's punching a headboard and acknowledged that he learned of this

through the maternal side of the family. I also noted Mother's fears as well as the Child's

fears (which I believe have been exacerbated by Mother). I also noted in paragraph 5 of

my findings that the allegations concerning paternal grandfather are being repeated by the

adults in Mother's family and that this has become the child's reality.

5. That the evidence did not demonstrate Appellee's willingness to protect Child from
continued risk of harm or that unsupervised time with paternal grandfather was in
the Child'!fl>est interest. See Mother's Statement of Errors Complained of on
Appeal, at paragraph 5.

I did not make a finding that unsupervised time with paternal grandfather was in

the Child's best interest. On the contrary, I cautioned Father and the paternal side of the

family that unsupervised exposure to paternal grandfather may frighten the Child and that

-5-
 continuous questioning about the allegations is not appropriate. The Child will need to

work through these issues in therapy. What I did not do (based on the insufficient

evidence to substantiate the allegations) was place conditions on the Child's custody time

with his Father. See Fatemi v. Fatemi, 489 A.2d 798 (Pa.Super. 1985) (party moving for

restriction on partial custody must show that restriction is necessary to avoid detrimental

impact on the child and that content of the restriction manifests a reasonable relationship

between the restriction and avoidance of detrimental impact).

6. That the evidence did not supportCourt'sconclusions regardingincreasingly
definitive allegations of the Child. See Mother'sStatementof Errors Complained of
on Appeal, at paragraph6.

During the first forensic evaluation (Information to Accompany Forensic Interview

DVD, Exhibit F2, p. 2), it was reported that the Child made no disclosure. During the second

forensic evaluation, when the interviewer asked the Child why he was there, he responded,

"Because Pap-Pap[__ ] showed me naked pictures. DONE." When asked to explain

everything about this incident, the Child began talking about Pap-Pap pulling his pants down

in the lake. The Child said that this incident and the naked picture incident both took place

when his Father was "peeing behind a tree." The Child repeatedly said "that's all" after every

question. During the third forensic interview, the Child described what they were eating,

what he was doing and listed numerous relatives who were present when this incident took

place.

It became clear to me that the Child was constantly being reminded of this incident

(or these two incidents) by the maternal side of the family. It also was clear that the paternal

side of the family was pressuring the Child to recant. My conclusion was that the Child

needed to be enrolled in therapy to work through these issues.

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 In summary, this child has been placed in an extremely difficult situation by both sides of his

family and he is feeling the psychological effects. Drastically restricting the Child's contact with

either side of the family will only make matters worse. The Child needs to work through these

issues with a therapist.

For the foregoing reasons, the November 5, 2015 Order of Court should be affirmed.

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IN THE C~URT OF COMMON P~AS OF ALLEGHENY COUNTY, PENNSYVLANIA

CI t . .) FM'.flLY DIVISION
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Plaintiff ) No. FD09-00a969-005

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FINDINGS AND CONCLUSIONS
. L~ . ·.
AND ~OW, th~~ q.ay of November, ·2015~ after trial, the court he~~Y reviews

the factors set forth in 2l Pa. C.S.A:. §5328.as follows?

1. . Both. p~ies say that they wish to .encourage and permit frequent and continuing

contact between C-. and the other parent, However, each pany has· such animosity
. .
to~ard the other that it :is difficµlt for him4tet to ~co~e contact .. Ad~tj.onall~. the issue

of paternal grandfather has become so prevalent in this custody case that it has become a
~atter of principle for each party. NotwithstaQ.(ling the· above. findings, the court· finds that

as between father and mother,' father appears ~lightly better able to encourage and permit .
. .. .
contact between thechild.and mother. Father app.ar~ntl~·does acknowledge that mother has

been a good mother to the child.
. .
2. Mother alleges that fatber was abusive in _the past, · While this may well be

accurate (the psychologist said that father admitted to .it)~ this again has become an issue in

which (:91 has become involved. The court certainly recognizes that any violent, abusive
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behavior by Father was 'improper (and may well have provided the basis for Mother's

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 actions); it is important, for Mother to move beyond her .sense "pf herself as a victim and it is .

a: victim, . The. court was :very
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not 'to' make cllll feel
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told the forensic evaluator that father bad. punched the· headboard

when his mother was sleeping. and acknowledged that _he only learned of -this through the
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maternal side of the family. The court does not find that clllwill be subjected to physical

abuse in Father's custody. However, the court recognizes that both mother and cllllhave

a significant fear 'of abuse at the hands of father and his family. The court finds that both
parties are capable of providing adequate physical safeguards and supervision of the child.

2.1 There have been numerous investigations by Child· Protective Services in this

case, none of which has resulted 111 any long term involvement or indicated childline.

3. Mother has performed the majority of the parental duties on behalf of C-up

. to this point. However there is no indication that father is not capable of perform~ng these

parental duties.

4. ell has begun school in the Moon School District and appears to be doing

well there. Given the amount of the conflict around the child in each of the families, it is

important that his school district remain consistent. In addition, mother and clll9 would
believe that the school district where father resides would favor father; ·

5. Unfortunately, the extended family in. this case has become an issue, Mother .

. and clll are convinced that patemafgrandfather exposed hurtself to-thechild ~d exposed ·-··-·---. . :··- -·

the child to inappropriate photos. Other than · the child's statements,· there is no

corroborating evidence of this. Additionally, it appears that the child's statements about this

incident which took place when he was very young have become more and more definite
throughout the years. This would seem to demonstrate. that the alleged actions of paternal

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grandfather are being repeated by the adults in mother's family and that this has become the
child's reality. What father does not understand is that his challenging this is making the

child feel like ~ 'liar and the court does not find that the child is a liar. Th~ court finds that

the reported incident with-paternal grandfather has become c•·s reality: Because there is
insufficient evidence to substantiate·
.
the allegations with respect to paternal grandfather,
•\ . ')•
the-
i:"

court will no~ order that the child not have contact with paternal grandfather. However,

father and the paternal side of the family are cautioned th.at unsupervised exposure to

paternal grandfather may frighten the child and continuous questioning about his allegations

is not appropriate. The child will need to work through these issues in therapy. With

respect to the remaining· paternal family members, other. than their efforts to convince the

child that paternal grandfather is "inno~nt", they _provide a benefit .to C.. Similarly,

with respect _to the maternal family members, other than the focus about the alleged incident ·

with paternal grandfather, they appear to be a beneficial relationship,
. .
6. There are no sibling relationships in this case. Mother's current. significant

other does have a child and it is likely beneficial to C. to have contact. with other

children.

7. The child expressed a strong preference in favor of mother and against father .

. However, . this apPe~ed to be based primarily on the child's perception that he is being

press~ by ~a~er to "lie" about paternal grandfather .. If this is true, it undoubtedly places

significant pressure ~n ca. This is particularly true because C. truly believes that the

incidents to which he refers took place. Further, it is very clear the child is very attached to

· mother and wants to please her and to do 'what she wants. While considering the child's

_
___, _.....:. ~~- ....
 . .
testimony as evidence of his _feelings and pressure that he is under, the court w~II not place a

great deal of w~ight on his expressed preference.

8. Mother would argue that she -h~s not '.~tempted to tum C•. against rather but

is simply insuring that reasonable safety measures are necessary to protect him from harm

caused by paternal grandfather. However, mother appears to be very willin~ to misinterpret

and believe the worst about any aspect of father's family and about ap~in~ that has todo

with father and no doubt th.is has been' communicated to c ..
9 .. '· With respect to Factor 9, both parties are likely to maintain a loving, stable,

consistent and nurturing.relationship with the child. As stated -ilifra c8 is significantly

bonded to mother.

10. · Mother has primarily provided for the daily physical, emotional, 'developmental,
\

educational and special needs of the child to date although there is· no reason to find that

father could _not do so-as well.

11.. The significant distance between the residences of the parties · is a concern.

Father is seeking primary or shared custody and requesting-that c··be enrolled in his

school district. As stated above, the consistency of the school district is likely an important

factor for this child. Therefore, a shared arrangement during the school year is not feasible.

However, a shared arrangement during the summer is appropriate.

12. Mother has demonstrated her availability to care for. 'the child or make

appropriate. child care arta:ng~ments. Father testified that he was .able to do -so but his

testimony was vague and it was not clear wh~t specific arrangements he would make. .

13. The level of conflict between the parties and willingness to c~operate is a

significant problem in this case. Again, mother ~oul~ state that this is because of her efforts
 to protect the child from abuse burthe court.finds that mother has in many ways exacerbated
. .

the conflict -. I~ 'appears clear that father and his family may express their emotions in temper

outbursts and this may be something that.mother i's not.aecustomed td. As contirmed by the

psychological testing, mother's mability to see any fault with respect- to herself does not help
.to .alleviate conflict because she will take no responsibility fQt th~ situation. It is dear that

t9 is being brought into this conflict by both parties .. At this point in time. he feels that

father is challenging his veracity and this is detrimental to the .child's relationship with

father: The videotaping of the custody .exchanges by the paternal side of the family has

. exacerbated not reducedconflict ~d involved the child In the . distrust between the families.

14. There's no evidence of drug or alcohol abuse.

15. There's no .evidence of any mental or physical condition "of either party or

party's household. .

16. With respect to Mother's contempt petition, although Father's· refusal to allew

C.. to call Mothe~ any time he wants constitutes a technical violation of the order, the

court finds that given the conflictlial relationships in this" case, this ·:fan~ge should be

eliminated. N~ sanction.s will be imposed at thi~ time. However, this finding should be
noted in lit~ event of a violation in. the future.

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