J.D. v. J.J.

J-S62032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

J.J.

Appellee No. 2254 MDA 2015

Appeal from the Order Entered December 10, 2015
In the Court of Common Pleas of Berks County
Civil Division at No(s): 15-2945

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 09, 2016

Appellant, J.D. (“Mother”), appeals from the order entered in the Berks

County Court of Common Pleas, which awarded the parties shared legal

custody of their minor child, N.J. (“Child”), and awarded primary physical

custody of Child to Appellee, J.J. (“Father”), subject to Mother’s periods of

partial physical custody. We affirm.1

____________________________________________

1
We have made every effort to decide this Children’s Fast Track case
expeditiously. See In re T.S.M., 620 Pa. 602, 618 n.21, 71 A.3d 251, 261
n.21 (2013) (explaining Superior Court must ensure that Children’s Fast
Track cases do not linger and must give such cases priority in circulation of
and voting on proposed decisions). The following delays, however, occurred
in this case. Mother’s counsel failed to timely file a brief, so this Court
issued a per curiam order on March 10, 2016, directing counsel to file a brief
and reproduced record within 14 days. Instead, counsel filed an application
for extension of time on March 22, 2016, claiming Mother had not yet paid
the remaining balance for the transcript of the custody trial, and counsel
(Footnote Continued Next Page)
J-S62032-16

In its December 10, 2015 Decision & Final Custody Order, the trial

court accurately set forth the relevant facts and procedural history of this

case. Therefore, we will only briefly summarize the facts and procedural

history most relevant to this appeal. Mother and Father never married but

had a romantic relationship lasting approximately ten years before they

separated. Prior to separation, the parties lived together in New York City.

Child was born in December 2009. When Child was 1½ years old, the

parties separated; and Mother moved to Reading, Pennsylvania. After

Mother moved, the parties had an informal custody arrangement in which

Mother exercised primary physical custody of Child. Father exercised partial

physical custody throughout the year, and enjoyed custody of Child for the

majority of the summer months. Once Child reached school age, the parties’

ability to co-parent began to deteriorate.
_______________________
(Footnote Continued)

could not file a brief as a result. On March 29, 2016, this Court ordered
counsel to file within 14 days proof of payment for the outstanding transcript
and a certification that counsel notified her client of this Court’s order. This
Court stated that Mother’s compliance would result in a new briefing
schedule with no further extensions allowed. Counsel complied with the
order, Mother paid the outstanding balance, and the Prothonotary issued a
new briefing schedule. Counsel electronically filed Mother’s reproduced
record on May 5, 2016 (the deadline under the new briefing schedule), but
she failed to file the requisite paper copies. Additionally, counsel did not file
an appellate brief. Consequently, on May 27, 2016, this Court ordered
counsel to file paper copies of the reproduced record within seven days; and
remanded the matter to the trial court for 30 days to determine whether
counsel had abandoned Mother by failing to file a brief. Counsel filed paper
copies of the reproduced record on June 3, 2016, and an appellate brief on
June 7, 2016. The Prothonotary’s office closed out the remand based on
counsel’s eventual submission of the relevant documents.

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J-S62032-16

On March 12, 2015, Mother filed a custody complaint at docket No. 15-

2945. Father also filed a custody complaint at a different docket number.

The trial court ultimately dismissed Father’s complaint, and docket No. 15-

2945 was used going forward. The parties attended a custody conciliation

conference before a custody master on May 15, 2015. On May 21, 2015,

the custody master issued a recommendation for the parties to share legal

custody and for Father to have primary physical custody of Child, subject to

Mother’s periods of partial physical custody. The custody master drafted a

proposed order outlining each parent’s custodial time. Mother filed

exceptions but at the incorrect docket number. Consequently, the court

entered the master’s proposed custody order as a final order on June 17,

2015, granting Father primary physical custody of Child. On July 1, 2015,

the court vacated its June 17, 2015 order, after learning Mother had

intended to file exceptions in this case. Mother filed her exceptions at the

correct docket number on July 10, 2015.

On November 20, 2015, the court held a de novo custody trial. At the

conclusion of trial, the court acknowledged the upcoming Thanksgiving

holiday and stated its intent to make a custody decision the following week.

On November 23, 2015 (before the Thanksgiving holiday), the court entered

an order affirming the master’s recommendation to award the parties shared

legal custody and to give Father primary physical custody of Child, subject to

Mother’s periods of partial physical custody. The court attached a copy of

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J-S62032-16

the master’s proposed custody order, effective as of that date. The court

also attached as an appendix a “Code of Conduct” for parties involved in

custody disputes. On December 10, 2015, the court issued a Decision &

Final Custody Order reiterating its custody decision and supplying detailed

findings of fact and conclusions of law analyzing each of the statutory

custody factors. The custody order2 delineating the parties’ periods of

custody contained three appendices: (1) the “Code of Conduct” previously

attached to the November 23, 2015 custody order; (2) a copy of certain

provisions governing relocation pursuant to 23 Pa.C.S.A.§ 5337; and (3) an

explanation of shared legal custody. Mother timely filed a notice of appeal

on December 22, 2015, along with a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).

Mother raises the following issues for our review:

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF
LAW IN ITS NOVEMBER 23, 2015 ORDER BY ORDERING
THAT “THE CUSTODY ORDER RESULTING FROM THE
CONFERENCE WITH [THE] CUSTODY MASTER…IS
AFFIRMED AND SHALL BE FOLLOWED EFFECTIVE AS OF
THE DATE OF THIS ORDER, A COPY OF WHICH IS
ATTACHED”?

WHETHER THE [TRIAL] COURT ERRED AND COMMITTED A
GROSS ABUSE OF DISCRETION BY ENTERING TWO
ORDERS BECAUSE THE ORDERS HAD DIFFERENT

____________________________________________

2
The December 10, 2015 custody order is almost identical to the master’s
proposed custody order, which the court had attached to its previous
November 23, 2015 order.

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J-S62032-16

APPENDICES, AND THE EXISTING TWO ORDERS COULD
CREATE CONFUSION?

WHETHER THE [TRIAL] COURT ERRED AND COMMITTED A
GROSS ABUSE OF DISCRETION BY ENTERING BOTH
ORDERS WITH HOLIDAY SCHEDULES OF CUSTODY THAT
SIMPLY ARE NOT PRACTICAL OR IN THE CHILD’S BEST
INTEREST BECAUSE THE PARTIES LIVE IN DIFFERENT
STATES AND HAVE APPROXIMATELY THREE HOURS OF
TRAVEL TO PICK UP THE CHILD?

WHETHER THE [TRIAL] COURT ERRED IN APPLYING THE
STATUTORY FACTORS OF CUSTODY.

(Mother’s Brief at 7).

In reviewing a child custody order:

[O]ur scope is of the broadest type and our standard is
abuse of discretion. This Court 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, this Court must
defer to the trial judge who presided over the proceedings
and thus viewed 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.

S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation

omitted).

For purposes of disposition, we address Mother’s issues one through

three together. In her first issue, Mother argues the trial court merely

“rubber stamped” the custody master’s recommendation, by entering an

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J-S62032-16

order on November 23, 2015, affirming the master’s recommendation for

Father to have primary physical custody of Child, and attaching the master’s

proposed custody order. Mother asserts that Pennsylvania Rule of Civil

Procedure 1915.4-3(a) permits a “hearing officer” (not a custody master) to

preside over a non-record proceeding such as a conciliation conference or

office conference, and to prepare a written order when the parties agree to a

custody resolution. If no agreement is reached, Mother contends the

“hearing officer” must notify the court that the matter should be listed for

trial. Because the parties did not agree on a custody decision, Mother claims

the master lacked authority to issue a recommendation, and the court

similarly erred by “affirming” the master’s proposed custody order.

In her second issue, Mother avers the trial court erred when it issued

its final custody decision on December 10, 2015, because the court attached

different appendices to this order than the one attached to the prior

November 23, 2015 order. Mother insists the issuance of two orders in a

custody case is not authorized by the rules, creates confusion, and erodes

confidence in the judicial system.

In her third issue, Mother argues the trial court implemented an

impractical holiday schedule. Mother emphasizes that the parties live

approximately three hours apart, with Father residing in New York and

Mother residing in Reading, Pennsylvania. Mother points out that the

custody order gives her custodial time on Mother’s Day from 10:00 a.m. to

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J-S62032-16

7:00 p.m., and permits Father the same timeframe on Father’s Day. Mother

complains this schedule requires Child to travel six hours on each date,

leaving at 7:00 a.m. and returning at 10:00 p.m. Mother suggests the trial

court should have awarded Mother custodial time for Mother’s Day weekend

and Father custodial time for Father’s Day weekend.

Mother submits the court should have addressed other holidays in a

similar fashion. For example, Mother takes issue with the court’s Christmas

schedule awarding one parent custody from noon on December 24th until

noon on December 25th and again from noon on December 29th until noon on

the day before school commences; the other parent shall have custody from

noon on December 25th until noon on December 29th. Mother complains this

custody arrangement requires Child to travel three hours each day on

December 24th and December 25th and requires each parent to travel six

hours on one of those days. Mother claims the court’s holiday schedule is

not in Child’s best interests, particularly due to the volume of traffic during

the holidays. Mother also claims the court failed to take into consideration

Child’s best interests when formulating a weekly alternating custody

schedule in the summer because Child could have activities during the

summer. Mother maintains the court ignored the fact that Father previously

enjoyed custody of Child for all of the summer when Mother had primary

physical custody of Child. Mother suggests she should have custody of Child

for 75% of the summer. Mother concludes the court’s collective errors

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J-S62032-16

constitute an abuse of discretion, and this Court must remand for further

proceedings or adjust the parties’ custodial periods during holidays and in

the summer. We disagree.

Preliminarily, we observe generally that issues not raised in a Rule

1925 concise statement of errors will be deemed waived. Lineberger v.

Wyeth, 894 A.2d 141 (Pa.Super. 2006). The Rule 1925 statement must be

specific enough for the trial court to identify and address the issue(s) an

appellant wishes to raise on appeal. Id. “[A] [c]oncise [s]tatement which is

too vague to allow the court to identify the issues raised on appeal is the

functional equivalent of no [c]oncise [s]tatement at all.” Id. at 148. If a

concise statement is too vague, the court may find waiver and disregard any

argument. Id. See also In re L.M., 923 A.2d 505 (Pa.Super. 2007)

(applying Rule 1925 waiver standards in family law context).

As well, appellate briefs must conform in all material respects to the

briefing requirements in the Pennsylvania Rules of Appellate Procedure.

Pa.R.A.P. 2101. See also Pa.R.A.P. 2119 (stating argument shall be divided

into as many parts as there are questions to be argued; and shall have at

head of each part particular point treated therein, followed by such

discussion and citation of authorities as are deemed pertinent). Where an

appellant fails to raise or develop her issues on appeal properly, or where

her brief is wholly inadequate to present specific issues for review, this Court

will not consider the merits of the claims raised. Butler v. Illes, 747 A.2d

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J-S62032-16

943 (Pa.Super. 2000). See also Lackner v. Glosser, 892 A.2d 21

(Pa.Super. 2006) (explaining arguments must adhere to rules of appellate

procedure and arguments which are not appropriately developed are waived

on appeal; arguments not appropriately developed include those where

party has failed to cite any authority in support of contention); Estate of

Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating appellant must

support each question raised by discussion and analysis of pertinent

authority; absent reasoned discussion of law in appellate brief, this Court’s

ability to provide review is hampered, necessitating waiver on appeal).

Instantly, Mother presented her first issue on appeal in her concise

statement as follows: “The [trial] court erred as a matter of law in its

November 23, 2015 Order by ordering that ‘the Custody Order resulting

from the Conference with [the] Custody Master…is affirmed and shall be

followed effective as of the date of this order, a copy of which is attached.’”

(Mother’s Rule 1925(a)(2)(i) statement, filed December 22, 2015, at 1).

Significantly, Mother failed to state how or why the trial court erred; and the

trial court did not address this issue in its Rule 1925(a) opinion.3 Based on

Mother’s vague assertion of error in her concise statement, Mother’s first

issue is waived. See Lineberger, supra. Additionally, Mother cites no

legal authority whatsoever to support her second and third issues. Mother’s
____________________________________________

3
The trial court’s Rule 1925(a) opinion adopted its December 10, 2015
Decision & Final Custody Order.

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J-S62032-16

failure to develop these arguments with discussion and analysis of pertinent

legal authority waives those issues on appeal. See Lackner, supra; Estate

of Haiko, supra; Butler, supra. Mother also failed to preserve her

challenge to the court’s summer schedule in her concise statement, so that

claim is waived for this reason as well. See Lineberger, supra.

Moreover, regarding her first issue, Mother relies on Pa.R.C.P. 1915.4-

3(a) (stating: “In those jurisdictions that utilize an initial non-record

proceeding such as a conciliation conference or office conference, if no

agreement is reached at the conclusion of the proceeding, the conference

officer or conciliator shall promptly notify the court that the matter should be

listed for trial”).4 Nevertheless, Mother ignores the relevant local rules of

civil procedure applicable in this case, which permit a “custody master” to

file a recommended order when an agreement is not reached by the parties,

and to submit findings of fact, conclusions of law, and a written report. See

B.R.C.P. 1915.26(a), (d), (g) (stating court shall refer all actions for custody,

partial custody and visitation of minor children to custody master for

purposes of conciliation conference; custody master may conduct informal

hearing, take testimony, and hear position of parties relative to custody,

partial custody, and visitation; if written settlement is not reached, custody

master shall file recommended order; custody master may also file in its

____________________________________________

4
This rule does not refer to a “hearing officer,” as Mother claims.

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J-S62032-16

discretion findings of fact, conclusions of law, and written report). See also

Pa.R.C.P. 1915.4-1, Note (explaining Berks County has certified to Domestic

Relations Procedural Rules Committee that its custody proceedings

generally are conducted in accordance with Pa.R.C.P. 1915.4-3). Further,

the trial court held a de novo custody trial on November 20, 2015. Although

the court agreed with the custody master’s recommendation to award

primary physical custody of Child to Father, nothing in the record supports

Mother’s assertion that the court merely “rubber stamped” the master’s

recommendation. Rather, the record makes clear the trial court issued

detailed findings of fact and conclusions of law in support of its final custody

order on December 10, 2015.

Concerning Mother’s second issue, the court acknowledged that the

custody trial took place less than a week before the Thanksgiving holiday.

The court entered its initial custody decision on November 23, 2015,

agreeing with the custody master’s recommendation for Father to have

primary physical custody of Child, attaching the custody master’s proposed

custody order, and supplying the “Code of Conduct” appendix. After the

Thanksgiving holiday, the court issued its Decision & Final Custody Order on

December 10, 2015, detailing its findings of fact and conclusions of law and

analyzing each relevant custody factor. The December 10, 2015 custody

order contained three appendices regarding “Code of Conduct,” relocation,

and shared legal custody. The record suggests the court wanted to give the

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J-S62032-16

parties its custody decision before the Thanksgiving holiday, even though

the court had not yet had an opportunity to explain its rationale; 5 and that

the court inadvertently omitted two appendices from its November 23, 2015

order. The trial court was free to modify and expand on its initial custody

order within thirty days, while the court still had jurisdiction. See 42

Pa.C.S.A. § 5505 (stating: “Except as otherwise provided or prescribed by

law, a court upon notice to the parties may modify or rescind any order

within 30 days after its entry, notwithstanding the prior termination of any

term of court, if no appeal from such order has been taken or allowed”).

The November 23, 2015 and December 10, 2015 custody orders do not

create confusion because they are virtually identical and the minor changes

in the language used do not involve the parties’ periods of custodial time.

With respect to Mother’s third issue about the holiday schedule, Child

would not be required to travel three hours on December 24 th and December

25th every year, as Mother claims. For example, Child is not required to

travel at all on December 24th in odd-numbered years because Child will

already be in Father’s custody and Father has custody of Child on December

24th in those years. The parties are also free to agree to more convenient

custodial arrangements. (See Appendix A to Decision & Final Custody

____________________________________________

5
Mother does not argue on appeal that the court erred by failing to issue its
analysis of the relevant custody factors contemporaneous with the
November 23, 2015 custody decision.

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J-S62032-16

Order, dated December 10, 2015, at 1-2) (stating predetermined schedules

are not written in stone and parties should be flexible for sake of child).

Mother’s mother and brother also reside in New York, not far from Father.

Mother is free to exercise some of her custodial time in New York with her

family. Therefore, Mother’s first three issues on appeal are waived, but they

would merit no relief in any event.

Turning to Mother’s fourth issue, after a thorough review of the record,

the briefs of the parties, the applicable law, and the well-reasoned opinion of

the Honorable A. Joseph Antanavage, we conclude Mother’s fourth issue

merits no relief. The trial court’s Decision & Final Custody Order

comprehensively discusses and properly disposes of this issue. (See

Decision & Final Custody Order, dated December 10, 2015, at 7-11)

(examining each relevant factor under applicable statute; concluding award

of primary physical custody of Child to Father is in Child’s best interest).6

Accordingly, Mother’s first three issues are waived and would merit no relief

in any event; and we affirm on the basis of the trial court’s December 10,

2015 opinion regarding Mother’s fourth issue.

Order affirmed.

____________________________________________

6
In support of her fourth issue, Mother simply asks this Court to favor her
testimony and the testimony provided by her witnesses. The trial court
credited the testimony of Father and his witnesses, and we will not disturb
those credibility determinations. See S.J.S., supra.

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J-S62032-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2016

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 Circulated 08/24/2016 11:09 AM

-:s. 'D. ·, : IN THE COURT OF COMMOM PLEAS
Plaintiff : OF BERKS COUNTY, PENNSYLVANIA
: CIVIL DIVISION
v. _...........
+r

: CHILD CUSTODY _ :.::: :,.,
-- ~·.: ~;-~
:r. J. '.,
: NO. 15-2945
.,. . :._ ., ·- :.i.:
::::. :<··
Defendant : ASSIGNED TO: ANTANAVA(Ht,:J'..
::: ·.::: .... _: -:.::
:·. . , ·,-- J>
.. ~ ·,

Decision & Final Custody Order December 10, 2015 ~~Antan~_yage,I

FACTUAL & PROCEDURAL IDSTORY

-:J .O. ("Mother") and :J· :::Y. ("Father") both filed Complaints for

Custody of their minor child N. :r. >("Child") in March 2015. Mother's Complaint as

Plaintiff was docketed at 15-2945 and Father's Complaint as Plaintiff was docketed at 15-3076.

After some initial confusion regarding filings to the wrong docket, Father's Complaint was

dismissed and Mother's earlier numbered docket was used going forward. The parties attended a

Custody Conciliation Conference on May 15, 2015. Custody Master Molly B. Kleinfelter

recommended a Custody Order that was entered by this Court on June 17, 2015 granting primary

physical custody to Father and joint legal custody which was later rescinded due to the confusion

of two outstanding docket numbers. Mother filed exceptions to the Recommendation of the

Child Custody Master on July 10, 2015 and both parties were ordered to appear for a pre-trial

conference with this Court on August 31, 2015. A custody trial was held on November 20, 2015

after which this Court entered an order on November 23, 2015 affirming the Custody Order

resulting from the Conference with Custody Master.

\ .
\5
 DISCUSSION

Mother, age 28, is a single mother raising two children. One of the children is l'l ,::r. .)

five. The other is a child fathered by a subsequent boyfriend; Mother

works as a manager at a sneaker store in Reading, Pennsylvania. Mother is purported to reside o'I")

River Road, Reading, Berks County,

Pennsylvania with her cousin yet Mother claims she lives with her aunt ~ Buttonwood

Street, Reading, Berks County, Pennsylvania. It was unclear to this court where Mother resides

as there was conflicting testimony about her true place of residence and with whom she lived

with over the past few years. This causes the Court concern over the stability of her living

arrangements.

Father, age 29, also has an infant son by his fiance \J. e. and lives with her

and her eight year old son in Bronx, New York. Father works as a doorman in an office building

in New York City and is attending night school to become an architect.

Mother and Father were never married but had a romantic relationship lasting

approximately ten years before they separated. They lived together in New York City where

C,h; l cl was born in 2009. When cxn \ o\ 1
was 1 Y:z years old Mother and Father separated and

Mother moved to Reading, Pennsylvania. Mother claims that the move was partly due to

Father's physical abuse of her but Mother did not provide any convincing evidence that any

abuse occurred. In fact, this Court found Father's testimony more credible that Mother was
abusive toward Father. Fortunately, this Court found no evidence of any abuse or neglect to

After Mother moved to Reading, she and Father had an informal custody arrangement

and were able to co-parent in a civil manner for many years. Ck);-\ d spent time with each

parent in their respective city and was able to enjoy family interactions with his aunt and cousins

in Reading as well as his maternal and paternal grandparents in New York City. Father even

made visits to Reading and spent time with CJ\,\i\c\ at Mother's relatives' homes. However,

once (M,\ d reached school age, the civil relationship between Mother and Father came to an

end. Father testified that as time went on he had less and less access to his son because Mother

was deliberately withholding ()Ai\(!\ from him. This may have been partially due to Child's

new school schedule ·, the distance between the parties, and the fact that

Mother has neither a car nor a driver's license. Yet, we also found credible Father's testimony

that Mother is purposefully making custody exchanges more difficult than necessary due to her

inflexibility and what she perceives as inconvenience for her. While distance is a complicating

factor, Mother is the party who chose to relocate several hours from Father and thus she is now

dealing with the consequences of such a long distance to travel when exchanging custody. We

are also concerned with Mother's attempts to alienate . t.M, \d· from Father, the actions of

which were highlighted in a disturbing video shown to this Court where Mother interrogated

U1h d '. about what he and his Father had done during Father's last custodial period.
 Because of the distance between the parties, we are aware that by granting Father primary

physical custody, VA~ \d will be transferring to a school in

New York. This decision was not made lightly but we feel that Father is better able to provide a

supportive and stable environment during the school year, especially as both Mother and Father

expressed concerns that ~\\<7' '· was possibly falling behind his peers in school. We believe

that Father will continue to make his son's education his top priority as his past behavior

demonstrates his commitment to his son's schooling. Currently, although Father lives several

...
hours away, he is in close weekly contact with his· son's current school, , to

check on his educational progress. Father also enrolled e}I\ '- \ cl in school in New York when

Mother unexpectedly left ; ()\,\, \ 0 · with him for more than a month in February 2015 without

reason since he was missing his classes in Reading. We are concerned about Mother's

demonstrated lack of care for Uv'\ ~ \ o\ l's schooling as Ck\ t"\ a also missed school when

Mother failed to pick him up for over a week in December 2014. Mother admits that Father is a

good dad and is very involved in school activities with. CK\i ,d. We are also confident that of

the two parties, Father is more likely to promote telephone contact with and Mother and Child

while: Clvl; \ d goes to school in New York than in the opposite scenario.

CM; id is in many ways a fortunate child to have such a large loving family on both his

Mother's and Father's sides as evidenced by the relatives who provided testimony in this trial.
We sincerely hope that going forward Mother and Father will put their differences aside and

focus solely on: Cvl, \\d :SJ best interests rather than their own.

Findings of Fact

1. Mother is . age 28.

2. Mother also has another child with a man she is no longer dating 7
an alleged drug dealer. Mother testified that she knew V\e, dealt drugs when they
first met.

3. Father is . ""'). "'S •
·, age 29, residing i. 't"\ ·
Bronx, New York 10468.

4. Father's testimony and evidence of his home depict a stable home environment.

5. Also residing with Father is his fiance · i·e , 32, \I . ~Y. 's; son , ~
,J.
~-
I.:".

, 8, and Father and V ,?. 's biological son.' ~ ::r., , 4 months. ,

6. \J.P. works as a pharmacy technician at Walgreen's.

7. The parties are the biological parents of one minor child N. 0., age 5, born t n
December 2009.

8. Child was born with one kidney larger than the other and see specialists at Hershey
Medical Center for Pediatric Urology and for issues with his hearing.

9. Father alleges that while mother was pregnant with Chi\ d she attempted suicide by
overdosing on pills. Mother denies this but Father presented two witnesses who testified
to seeing Mother hospitalized which this Court found persuasive.

10. Mother is employed at the sneaker store Villa, on Penn Street in Reading, Pennsylvania
and has an inconsistent work schedule.

11. Father is employed as a doorman for PBM at 250 Park Avenue in New York, New York.
He is attending night school to become an architect.

12. Mother and father were in a relationship at the time of ~~ci'.S birth but were never
married. They resided in New York City at that time.

13. The parties separated in 2011 when . Gv\.i \ el was 1 Yi years old. Mother moved to
Reading, Pennsylvania at that time.

s.
14. Upon separation the oarties had an informal agreement regarding custody that seemed to
work well until (>"i.\c\ reached school age.

15. Once CM\ \ d began pre-school, he began to live primarily with Mother during school
months with Father's custody time growing increasingly less regular.

16. In December 2014, Mother failed to pick up CM' ' ~ at the designated time, causing
him to miss school in Reading.

17. In February 2015, Mother failed to pick up: (M, \0. at the designated time and Father
was left with Child for over a month. Father enrolled ovr, \ cl. \ in school in New York
City at that point.

18. Father testified, and this Court found credible, that Mother restricts and interferes with
and eavesdrops on phone conversations between Father and 6'.\\d ·

19. Mother videotaped herself interrogating CK''\ c\ after Father returned him from a
custody period. This video was shown during trial and this Court found the Mother's
actions to be disturbing and inappropriate.

20. Father testified, and this Court found credible, that Mother is only interested in custody
arrangements that are convenient for her.

21. Father encourages the relationship between Mother and Ch.i ,di. and purchased a tablet
for U.,\d that he can use to call his Mother whenever he wants.

22. Although Mother admits that Father is a good father, the Court finds that her actions are
alienating Father from his son.

23. Mother alleges that Father physically abused her. Father denies this and claims that
Mother is the aggressor. Mother previously filed for Protection from Abuse Orders that
she withdrew or were dismissed.

24. Mother claims that Father attacked her as recently as Summer 2015 during a custodv
exchange in Reading. Father claims that Mother attacked him and his fiance \J • P.
The police charged all parties with harassment but the charges were later dismissed.
Based on the testimony during the custody trial, this Court finds it difficult to believe that
Father was the first aggressor as Mother was seen entering Father's vehicle to attack
v. (',
25. Father and Mother are capable of co-parenting to the extent that ~;\ cl 'S last birthday
party was attended by both sides of the family.

u,.
 Conclusions of Law

1. Actions in Child Custody are decided under the Pennsylvania Child Custody Act, 23
Pa.C.S.A. §5321 et. seq. and the decisional law that flows therefrom.

2. The Court has jurisdiction of the parties, the Children and the custody issues in this case.
See 23 Pa.C.S.A. §5422

3. "It is axiomatic that the paramount concern in any child custody proceeding is the best
interests of the child." Costello v. Costello, 446 Pa.Super. 371, 375, 666 A.2d 1096, 1098
(1995). Kirkendall v. Kirkendall, 844 A.2d 1261, 2004 Pa.Super 55 (2004) ("The best
interests of the child is our bedrock in this determination, ").

4. "Such a determination, made on a case-by-case basis, must be premised upon
consideration of all factors which legitimately have an effect upon the child's physical,
intellectual, moral and spiritual well-being." Alfred v. Braxton, 442 Pa.Super. 381, 385,
659 A.2d 1040, 1042 (1995)(intemal quotations omitted); Jackson v. Beck. 858 A.2d
1250, 1252 (Pa.Super. 2004).

5. The Child Custody Act enumerates sixteen factors that this Court must consider in
determining whether to grant or deny any form of custody. See 23 Pa. C.S.A. §5328.

6. The Court is required to consider all the factors set forth in 23 Pa. C.S.A. §5328. See 23
Pa. C.S.A. §5328(a); JRM v. JEA, 33 A.3d 647, 652 (Pa.Super. 2011) ("All of the factors
listed in §5328 are required to be considered").

23 Pa C.S.A. §5328

In reaching our decision as to primary physical custody of the Child, and after reviewing

all the evidence presented at trial, we have carefully considered the factors set forth in the

Pennsylvania Child Custody Act. We emphasize that we do not rely on any single factor in

reaching our ultimate decision, but rather our decision is based on a totality of the circumstances

and the cumulative effect of all relevant statutory factors, as set forth below:

1) Which parent is more likely to encourage and pennit frequent and continuing contact
between the child(ren) and another parent. This factor favors Father. Father has allowed
Child to contact Mother whenever he wishes and purchased Child his own tablet with

-, .
 different apps he can use to video chat with Mother. Mother appears to interfere with
Father's phone calls with Child when Mother has custody and has withheld visitation and
phone contact. Mother seems to want a custody arrangement according to her
convenience and not what is best or easiest for the Child.

2) The present and past abuse committed by a parent or member of the parent's household.
This Court believes there is no abuse committed by either parent against Child. Mother
has filed Protection from Abuse Orders against Father in the past but those were
withdrawn by agreement. Father testified that Mother has been verbally and physically
abusive with him. We believe that in some cases Mother was the aggressor and is not the
completely innocent party she claims to be.

3) The parental duties performed by each parent on behalf of the child(ren). This factor
favors Father. Both Father and Mother provide financially for the Child. Prior to Mother
seeking child support Father sent Mother money and paid for half of Child's school
tuition. Mother has recently fallen behind in making tuition payments for Child's school.
Both parties appear to love the Child and adequately care for him while he is in their
charge, helping him learn how to read and meeting his basic needs. Although Child is
currently enrolled in school in Reading, Father is in weekly contact with his son's school
to make sure he is doing well.

4) The need for stability and continuity in the child(ren)'s education. family life and
community life. This factor favors Father. Father offers a more stable and consistent
routine as he has his own residence and is more stable financially. This Court is not
convinced as to where Mother resides and there is a concern that Child's schooling in
Reading would be interrupted if Mother continues to fall behind on tuition bills. Mother
also disrupted Child's education on two occasions when she failed to pick Child up from
Father in New York - once for a period of one week, another for a period of one month.

5) The availability of extended family. Both Mother and Father have a large group of
extended family in Reading and New York City that the Child would be able to see

~·
 during different custodial periods. Both paternal and maternal grandparents reside in
New York City.

1
6) The child(ren)'s sibling relationships. Father and' \J . ~ · , testified that Child and
his soon to be step-brother· "3",Qr. are best friends and do everything together. Child's
half-brother by Father is only four months old and at this point their interaction is limited
by age. The age of Mother's other child is unclear but we believe it is also an infant.

7) The well-reasoned preference of the child(ren), based on the child(renf s maturity and
judgment. The Child is only six and therefore unable to express a well-reasoned
preference. The Court did not interview the Child and the Child was not present at trial.

8) The attempts of a parent to turn the child(ren) against the other parent. This factor favors
Father. There was no evidence presented at trial that Father has attempted to turn Child
against Mother however it does appear that Mother attempts to turn child against Father.
Mother videotaped herself interrogating the Child and asking him what he and his father
had done.

9) Which parent is more likely to maintain a loving, stable, consistent and nurturing
relationship with the child(ren) adequate for the children's emotional needs. This factor
favors Father. We believe that Father is better able to provide and maintain a loving,
stable, consistent and nurturing relationship with Child. Father provided evidence of the
activities he does with his son and while this Court is not swayed by pictures of Father
and Child attending professional sporting events, it is important that Father spends most
of his free time with Child and his older step brother. As previously mentioned, this
Court is concerned with Mother's living arrangements and the people Mother is involved
with, namely the father of her infant son who she admitted dealt drugs. There was also
inconsistent testimony about the Child's daily routine with Mother claiming she took the
Child to school most mornings and Mother's Cousin testifying that she took the Child to
school every day.

q.
10) Which parent is more likely to attend to the daily physical, emotional. developmental,
educational and special needs of the child(ren). Both parents share a concern and
commitment to Child's health and both are capable of attending to the Child's
developmental needs. However, as previously discussed, Mother has disrupted Child's
educational needs by causing him to miss school on several occasions.

11) The proximity of the residences of the parents. Mother and Father live several hours
apart. As Mother is the party who initiated the move to Reading, we are unsympathetic
with her complaints regarding distance to travel to exchange child for custody visitation.

12) Each parent's availability to care for the child(ren) or ability to make appropriate child-
care arrangements. Both parties appear capable of arranging alternative child care when
they are personally unable to care for Child such as daycare. Father has purposefully
included Mother's parents when he needed child care in the past so they could spend time
with their grandchild. Father testified that when he cannot personally watch Child his
fiance does. Mother relies on daycare and her extended family.

13) The level of conflict between the parents and the willingness and ability of the parents to
cooperate with one another. This factor favors Father. In the past Fatherand Mother
showed they are capable of co-parenting but this seems to have broken down in the past
year. It is difficult for the parties to coordinate with the distance between them and
Mother's lack of transportation. Mother does not seem to be as flexible as Father in
terms of custody arrangements.

14) The history of drug or alcohol abuse of a parent or member of a parent's household. This
factor favors Father. There was no evidence of drug or alcohol abuse by either Mother or
Father. We are concerned about the father of Mother's infant son and his involvement in
drug dealing.

lS)Mental Health of the parents. This factor favors Father. There was no evidence of
Father having any mental health issues. Mother allegedly attempted suicide which she

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 denied but the Court found Father's witnesses credible that she was in fact hospitalized
after the attempt.

(16)Any other relevant factor. None.

\\ .
 0 ·P· : IN THE COURT OF COMMOM PLEAS
Plaintiff : OF BERKS COUNTY, PENNSYLVANIA
: CIVIL DIVISION
v.
: CHILD CUSTODY
--:5:j. : NO. 15-2945
Defendant : ASSIGNED TO: ANTANAVAGE, J.

Final Custody Order

AND NOW, this ·I D~day of December, 2015 it is hereby Ordered and Decreed as
follows:

1) LEGAL CUSTODY: -:5· .·D . , , "Mother" and

"Father" shall have shared legal custody of the minor child,. :, born ,V\
December . 2009.

2) PHYSICAL CUSTODY: The parties shall exchange physical custody of the minor child as

follows:

a) Father shall have primary physical custody of the minor child.

b) Mother shall have partial physical custody of the minor child as the parties may agree,

but at a minimum:

i) During the· school year, every other weekend from Friday at 5:00 p.m. until Sunday at

5 :00 p.m. In the event that there is a day off from school on either Friday or Monday

on Mother's weekend, the weekend shall be extended to include the day/s off.

ii) During the summer, commencing the first Sunday after the last day of school, the

parties shall rotate custody on a weekly basis. Custody shall be exchanged Sunday at

noon.
3) HOLIDAYS: The following holiday schedule shall take precedence over the regular holiday

schedule set forth in Paragraph 2:

a) Minor Holidays: The parties shall share custody on the following holidays: Easter,

Memorial Day, July Fourth, Labor Day, and Thanksgiving, as they shall agree. In the

even they cannot agree, the parties shall alternate each holiday. Father shall begin with

Memorial Day in 2015, and the parties shall alternate the holidays thereafter. Custody

shall be from 6:00 p.m. the day before the holiday until 7:00 p.m. on the day of the

holiday, except for July Fourth which shall be from 10:00 a.m. on the fourth until noon

on the fifth of July. The parties shall equally divide any spring break from school.

b) Mother's Day/Father's Day: Mother shall have custody for Mother's Day and Father

shall have custody for Father's Day each year. Custody shall be from 10:00 a.m. until

7:00 p.m.

c) Christmas: The parties shall share custody for the Christmas holiday with one parent

having custody from NOON on December 24th until NOON on December 25th and again

from December 29th at NOON until the day before school commences at NOON. The

other parent shall have custody NOON on December 25th until NOON on December 29th.

Mother shall have custody from Christmas Eve to Christmas morning time period in

even-numbered years; Father shall have custody from Christmas Eve to Christmas

morning time periods in odd-numbered years.

4) VACATION: The parties shall exercise their summer vacation during their normal custodial

weeks. Vacation time shall not interfere with the other party's weekend or holiday time. The

parties agree that when they take the minor child places other than Pennsylvania or New
 York they shall provide the other party with the address and phone number where the child

can be located.

5) REASONABLE TELEPHONE CONT ACT: On the days that the non-custodial parent has

no physical custody of the minor child, the non-custodial parent shall have reasonable

telephone contact with the minor child. The parent having custody shall ensure that the child

is aware of any missed calls and returns any missed call as soon as possible. Neither party

shall use Caller ID, Call Block or any other device or service which limits telephone access

to the child. In the event that a minor child has a cell phone, the non-custodial parent may

use the child's cell phone to contact the minor child. Except during school hours, the child's

cell phone will be available to the child from 7:00 a.m. until 8:00 p.m. for the minor child to

make and accept calls from the non-custodial parent. Neither parent shall take the child's

cell phone as punishment without first discussing the punishment with the other parent, so

thatthe parties can ensure that telephone access to the child is not compromised.

6) EXTRACURRICULAR ACTIVITIES AND HOMEWORK: All parties shall ensure that

child's homework is completed on time. In the event that any extra-curricular activity is

scheduled during Mother's period of partial custody, except in cases of emergency, Mother

shall ensure that the child attends. Neither party shall schedule an extra-curricular activity or

appointment on or during the other party's custodial time without prior consent.

7) TRANSPORTATION: Unless otherwise agreed, the party commencing their period of

custody shall be responsible for picking up the minor child from the other party.

8) FINAL ORDER: This Order shall be considered a Final Order resolving the issues raised in

the Complaint filed on March 12, 2015.
9) RELOCATION: If you are planning to relocate with the child and your relocation will

significantly impair any other party's exercise of their custodial rights, you are obligated to

provide a detailed notice and counter-affidavit by certified mail, return receipt requested to

all individuals who have custody rights to the child at least 60 days in advance of the

proposed relocation in compliance with 23 Pa. C.S.A. Section 5337.

10) CHILDREN IN THE MIDDLE: Mother shall complete the "Children in the Middle"

program and provide proof of completion to the Custody/Support Master within thirty (30)

days of the date of this Order if she has not already done so per the Master's order.

11) The attached appendix shall be made part of the within Order.

BY THE COURT:

DISTRIBUTION
Prothonotary ( original)
Kathleen D. Dautrich, Esq.
Eric M. Gibson, Esq.

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 APPENDIX A TO CUSTODY ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and
are binding on all parties. Violation of any of these rules could become the subject of contempt
proceedings before this Court, or could be grounds for modification of this Order. Custody orders
are civil court orders and are not enforceable by police or other law enforcement. The word "child"
is used below, but these rules apply to all the children in the Order. If any of these general rules
conflict with any specific provisions of the Order, the Order shall control.

1. In addition to the rights in the Order, all parties shall also have the following rights with
respect to the child:

A. The right to reasonable telephone contact with the child when they are in the
other party's custody.

B. The right to be fully informed concerning the progress of the child in school and
the child's medical status, including the right to obtain information directly from the child's
school or medical practitioner.

C. The right to be informed in advance before any important decision is made
concerning the child and the opportunity to participate in those decisions.

2. In the event of any serious illness of the child at any time, the party then having custody
of the child shall immediately communicate with the other parties by telephone or by any other
means, informing the other parties as to the nature of such illness. During such illness, each party
shall have the right to visit the child as he or she desires consistent with the proper medical care of
the child.

3. None of the parties shall alienate or permit an attempt by anyone else to alienate the
child from the other parties. While in the presence of the child none of the parties shall make any
remarks or do anything which is derogatory or uncomplimentary to the other parties and it shall be
the duty of each party to uphold the other parties as ones the child should respect and love.

4. Both parties shall provide each other with the addresses and telephone numbers of
where they will be staying anytime they take a trip with the child out of the jurisdiction of Berks
County in excess of three (3) days.

5. The parties shall not conduct arguments or heated conversation in the presence of the
child or when the child can overhear the argument.

6. The parties shall at all times consider the child's best interests, and act accordingly. It is
in a child's best interest for the parties to understand that the child is trying desperately to cope
with the fact of his or her parents' separation, and needs help in loving both parents and any other
involved parties.

7. Neither party shall question the child as to the personal life of any other party except
insofar as necessary to insure the personal safety of the child. By this we mean that the child will
not be used as a spy on any other party. It is harmful to a child to be put in the role of spy.

Rev. 2-15-12
 8. The parties should remember that they cannot teach the child proper moral conduct if
that party is indulging in improper conduct. Children are quick to recognize hypocrisy, and the
party who maintains a double standard will lose the respect of the child.

9. Weekend and evening custody shall be subject to the following general rules:

A. Arrangements should be worked out beforehand between the parties without
forcing the child to make choices and run the risk of displeasure. However, the child shall
be consulted as to their schedules when appropriate.

B. Custodial rights shall be exercised at reasonable hours and under circumstances
reasonably acceptable to the other parties and to the needs and desires of the child.

C. If a party finds himself or herself unable to pick up or drop off the child at the
designated or agreed to time, he or she should give immediate notice to the other parties to
avoid subjecting the child to unnecessary worry or failed expectations.

D. The party having custody of the child should prepare them both physically and
mentally for the transfer of custody to another party and should have them available at the
time and place designated in the Order or mutually agreed upon.

E. If any party or the child has plans which conflict with their scheduled custodial
time and they wish to change their custodial time, the parties should make arrangements
for an adjustment acceptable to the schedules of every one involved. Predetermined
schedules are not written in stone, and the parties should be flexible for the sake of the
child.

F. If a party shows up to begin their custodial time with the child and the party is
under the influence of alcohol or drugs, the custodial time may be considered forfeited on
those grounds alone.

10. If any party feels that another party has violated this Order, they may petition the Court
as set forth in Pa.R.C.P. 1915.12.

Rev. 2-15-12
 APPENDIXB

Any Party to this action shall comply with the Provisions of 23 Pa. C.S.A.§5337 pertaining to a
change in the residence as follows:

General Rule-No relocation shall occur unless:

(1) every individual who has custody rights to the child consents to the proposed relocation; or

(2) the court approves the proposed relocation.

(c) Notice.-

(1) The party proposing the relocation shall notify every other individual who has custody
rights to the child.

(2) Notice, sent by certified mail, return receipt requested, shall be given no later than:

(i) the 60th day before the date of the proposed relocation, or

(ii) the I oth day after the date that the individual knows of the relocation, if:

(A) the individual did not know and could not reasonably have known of the
relocation in sufficient time to comply with the 60-day notice; and

(B) it is not reasonably possible to delay the date of relocation so as to comply
with the 60-day notice.

(3) Except as provided by section 5336 (relating to access to records and information), the
following information, if available, must be included with the notice of the proposed relocation:

(i) The address of the intended new residence.

(ii) The mailing address, if not the same as the address of the intended new residence.

(iii) Names and ages of the individuals in the new residence, including individuals who
intend to live in the new residence.

(iv) The home telephone number of the intended new residence, if available.

(v) The name of the new school district and school.

(vi) The date of the proposed relocation.

(vii) The reasons for the proposed relocation.

(viii)A proposal for a revised custody schedule.

(ix) Any other information which the party proposing the relocation deems appropriate.
 (x) A counter-affidavit as provided under subsection (d)(l) which can be used to
object to the proposed relocation and the modification of a custody order.

(xi) A warning to the nonrelocating party that if the nonrelocating party does not file
with the court an objection to the proposed relocation within 30 days after receipt of the
notice, that party shall be foreclosed from objecting to the relocation.

(4) If any of the information set forth in paragraph (3) is not known when the notice is sent but
is later made known to the party proposing the relocation, then that party shall promptly inform
every individual who received notice under this subsection.

(d) Objection to proposed relocation.-

(1) A party entitled to receive notice may file with the court an objection to the proposed
relocation and seek a temporary or permanent order to prevent the relocating. The nonrelocating
party shall have the opportunity to indicate whether he objects to relocation or not and whether
he objects to modification of the custody order or not. If the party objects to either relocation or
modification of the custody order, a hearing shall be held as provided in subsection (g)(l). The
objection shall be made by completing and returning to the court a counter-affidavit in
substantially the same form:

This proposal of relocation involves the following child/children:

Child's Name Age Currently residing at:

Child's Name Age Currently residing at:

Child's Name Age Currently residing at:

I have received a notice of proposed relocation and

I._ I do not object to the relocation and I do not object to the modification of the custody order
consistent with the proposal for revised custody schedule as attached to the notice.

2._ l do not object to the relocation, but I do object to modification of the custody order, and I
request that a hearing be scheduled: ·

a._ Prior to allowing (name of child/children) to relocate.
b. After the child/children relocate.

3._ I do object to the relocation and I do object to the modification of the custody order, and I
further request that a hearing be held on both matters prior to the relocation taking place.

I understand that in addition to checking (2) or (3) above, I must also file this notice with the
court in writing and serve it on the other party by certified mail, return receipt requested. If I fail
to do so within 30 days of my receipt of the proposed relocation notice, I shall be foreclosed
from objecting to the relocation.
2
 Appendix "C"

EXPLANATION OF "SHARED LEGAL CUSTODY"

Legal custody of the child/children shall be shared by the parties. This
means that each party shall have an equal right, to be exercised jointly with the
other party, to make all major non-emergency decisions affecting the
child/children's general welfare including; but not limited to, all decisions
regarding the child/children's health, education and religion, and/or social and
moral development. All parties shall be entitled to full participation in all
educational and medical/treatment appointments, evaluations and/or medical tests
with regard to the minor child/children.
.-
Each party shall be entitled to have full access to all records, documents and
I

information pertaining to the child/children including, but not limited to, medical,
dental, religious and school records, birth certificates and other governmental
records. To the extent that one party has-possession of any such records;'
documents or information, that party shallbe required to share the same?_or copies
thereof, with the other party within such reasonable time as to make the records
and information of reasonable use to the other party (for example, school notices
shall be given in advance of the activity about which the notice iswritten).
Each party shall be entitled to receive copies of anynotices that come from
the child/children's school with regard to all school activities, extracurricular
activities, sporting events, children's parties, musical/theatrical presentations,
orientation sessions, parent-teacher conferences and other similar notices or
information.
A copy of the attached Custody Order and this Appendix shall be deemed
sufficient to authorize any medical/dental providers, educational institution and or
governmental agency to release any and all information or records pertaining to
said child(ren) to either or both parents upon request.