M.S. v. V.M.F.

J-A05015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
V.M.F. :
:
Appellee : No. 1339 WDA 2016

Appeal from the Order August 8, 2016
In the Court of Common Pleas of Blair County
Civil Division at No(s): 2006 GN 2267

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 3, 2017

Appellant, M.S. (“Father”), appeals from the order entered in the Blair

County Court of Common Pleas, which granted primary physical custody of

the parties’ minor child, A.M.S. (“Child”), to Appellee, V.M.F. (“Mother”),

subject to periods of partial physical custody by Father. We affirm.

In its opinions, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

Father raises two issues for our review:

WHETHER THE [TRIAL] COURT ERRED AND ABUSED ITS
DISCRETION IN TRANSFERRING RESIDENTIAL CUSTODY
OF…CHILD TO…MOTHER, WHEREIN AN ANALYSIS AND
APPLICATION OF THE FACTORS TO BE CONSIDERED,
PURSUANT TO 23 PA.C.S.A. § 5328, FAVORS…FATHER
AND/OR A SHARED CUSTODY ARRANGEMENT, AND
THEREBY THE [TRIAL] COURT SUBSTANTIALLY LIMITED
FATHER’S PERIODS OF CUSTODY, THEREBY
J-A05015-17

DEPRIVING…CHILD OF HIS FATHER’S CARE FOR
EXTENDED PERIODS DURING THE SCHOOL WEEK, WHEN
THE PARTIES HAVE EQUALLY SHARED CUSTODY
OF…CHILD SINCE 2006?

WHETHER THE [TRIAL] COURT ERRED AND ABUSED ITS
DISCRETION IN FAILING TO CONSIDER CHILD’S
PREFERENCE, WHEREIN HE CONTINUED TO DESIRE TO
HAVE AN EQUALLY SHARED CUSTODY ARRANGEMENT TO
REMAIN THE SAME, ON A WEEK ON/WEEK OFF BASIS,
WHEREIN THE PARTIES WERE BOTH ACTIVELY INVOLVED
IN CHILD’S LIFE AND BOTH EQUALLY CAPABLE OF
PROVIDING FOR HIS NEEDS?

(Father’s Brief at 4).

Our scope and standard of review of a custody order are as follows:

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

* * *

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

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

-2-
J-A05015-17

A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014) (quoting R.M.G., Jr. v.

F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009)).

With respect to a custody order, Section 5328(a) provides:

§ 5328. Factors to consider when awarding custody

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

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

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

(2.1) The information set forth in section 5329.1(a)
(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

-3-
J-A05015-17

where reasonable safety measures are necessary to
protect the child from harm.

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

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

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

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

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

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

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

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a). “The court shall delineate the reasons for its

decision on the record in open court or in a written opinion or order.” 23

Pa.C.S.A. § 5323(d). In expressing the reasons for its decision, “there is no

required amount of detail for the trial court’s explanation; all that is required

is that the enumerated factors are considered and that the custody decision

is based on those considerations.” M.J.M. v. M.L.G., 63 A.3d 331, 336

(Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A

-4-
J-A05015-17

court’s explanation of the reasons for its decision, which adequately

addresses the relevant custody factors, complies with Section 5323(d). Id.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Hiram A.

Carpenter, III, we conclude Father’s issues merit no relief. The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed August 8, 2016, at 9-22)

(examining each relevant factor under Section 5328(a); concluding award of

primary physical custody to Mother as ordered is in Child’s best interests).

Accordingly, we affirm based on the trial court’s opinion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2017

-5-
 Circulated 02/22/2017 04:47 PM

IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA

M.~.
Plaintiff

v. :NO. 2006 GN 2267
.'
)

Defendant

HONORABLE HIRAM A. CARPENTER, III SENIOR JUDGE ~ ~
n1 _:::: C) l":-'.J
:,s (") c, ... :r:-:- r···~
.. T~ .. , ..
TERRESSA GEORGE, ESQUIRE COUNSEL FOR PLAL~TIF~
. /i ~!:.: >/ _.;. : ,_
w
MICHAEL COHEN, ESQUIRE COUNSEL FOR DEFENDAN':E!='
-o
_:j

OPINION AND ORDER f'...)
0)

This matter comes before the Court for resolution of all

issues relating to the custody of these parents' only child,

A . ./v\.~. , born May 2004. A hearing was held to a

conclusion on December 30, 2013. At that hearing, both parents

testified to their positions regarding the primary custody of

A,M.~ .. It was agreed A,A.~. would be interviewed by the Court

which interview occurred on December 31, 2013. The record is

presently closed.

At hearing, we heard the testimony of both parents as well as

ESt"e.p,..,..tStL-e,r- ; (the Father's wife since February 2, 2013); Jessica

(Mother of Noah, a close friend of A.~.~'~ ); and D~borah

(a long time friend of the Mother). Finally, as noted on

the day following our evidentiary hearing we interviewed' A.M,$.

1
 Historically, the parties' custodial arrangement is unusual

in our experience. Both parents agree their relationship never

went beyond dating prior to. A,M,~,~ conception. The Mother was

with the Father during a relatively short period of time while she

endured a separation from a long term relationship with another

man. This developed into a situation (for different reasons

according to each parent) where the Father did not know A,M,~. was

"his" until a significant period of time after A.A.~,~ birth (the

Mother estimates this as more than two years while the Father

estimates it as more than one year). In any event, the Father

immediately committed to A,M.~. upon learning he had a son. This

quickly evolved by early 2006 into essentially a fifty-fifty

custody arrangement. That fifty-fifty relationship has continued

in various forms through our December 30, 2013 hearing.

Presently, the Mother comes before the Court offering her

belief the time has come to end the fifty-fifty relationship which

has existed these many years. In place of the existing fifty-

fifty relationship, the Mother believes the custody arrangement

should be that she has primary residential custody with the Father

maintaining substantial contact with A.M.s. through a combination

of his coaching at the school and a schedule which would give the

Father two days (with overnights) centered around his work

schedule (rotating weekends involving all days of the week). If

2
this were accomplished, the Mother believes the present

corrununication difficulties which she is experiencing with the

Father since their last agreed order in November 2012 and the

Father's marriage to °S~E>~+~r- in February 2013 would likely

resolve. The Mother believes these issues of communication and

control suggest the time to end the fifty-fifty relationship (in

favor of the essentially five day/two day rotation which she

suggests) is now.

In response, the Father acknowledges he also would like to

achieve primary custody of A.~.~ However, he suggests the

fifty-fifty relationship which has been the parents' history

should continue for at least some period of time into the future

as consistent with A.M.~'S best interest. In that regard, he

suggests to the Court that an alternating three/four, four/three

arrangement (again geared to his work regarding his days) might

solve the parties' existing communication and control issues by

allowing A ,.M,"':), 'longer periods in each household. Recently, the

parties have been exchanging A.M.~ on practically a daily b~sis

under their present fifty-fifty arrangement so daily transfers are

more the norm than the exception. The Father believes fewer.

transfers would aid the parties and benefit A.M.S,. The Father

asks that if the Court believes a change is indicated presently he

should be the primary residential custodian with the Mother

3
liberally involved. Essentially, this sets out the parties'

positions.

As always, our paramount concern in a case whether it

involves custody or visitation is the best interest and permanent

welfare of the children. Commonwealth ex rel Pierce v. Pierce,

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

deemed subordinate to the child's physical, intellectual, moral

and spiritual well being. In the interest of Tremayne Quame

Idress R., 429 A.2d 40, 43 (1981). Parents do not have a property

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

custody or visitation rights is to be tested by what is in the

best interest of the children. See generally Commonwealth ex rel

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

decree is not meant to punish a parent or anyone else. Its only

purpose is to help the child. In Re: Custody of Temos, 450 A.2d

111 (1982). The clear trend has been to abolish presumptions in

custody disputes. In children custody cases, the Court must

continually hew to the polestar of a child's best interest

eschewing presumption and surmise. Morris v. Morris, 412 A.2d

139, 141 (1979). Th~ Court should avoid mechanical determinations

and focus its analysis on a close scrutiny of all particular facts

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

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

4
care for a child is to be determined as of the time of the custody

hearing, not as of an earlier time. In Custody of Frank, 423 A.2d

1229 (1980). Decisions must be made on the basis of current facts

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

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

with the past but with the present and future. Hooks v. Ellerbe,

390 A.2d 791 (1978). Facts at the time of hearing are the

foundation for the determination of the Court. Augustine v.

Augustine, 3L~ A.2d 477 (1974). At hearing, each parent shares

the burden of proving by a preponderance of the evidence that an

award of custody to him or her would serve the best interest of·

the child. Ramos v. Rios, 378 A.2d 400 (1977). Continuity and

stability are important elements in a young child's emotional

development. Commonwealth ex rel Jordan v. Jordan, 448 A.2d 1113

(1982}.

The principles enunciated above are time honored in

Pennsylvania law. More recently, however, as a result of the

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

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

petition for modification ot' a custody order, the trial court must

perform a "best interest of the child" analysis considering all of

the Section 5328(a) factors. Those factors are as follows:

1) Which party is more likely to encourage
and permit frequent and continuing contact

5
 between the child and another party.

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

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

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

5) The availability of extended family.

6) The child's sibling relationships.

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

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

9) Which party is more likely to maintain a 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 ability 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 of inability to cooperate with that
party.

6
 14) The history of drug or alcohol abuse of a party
or member of a party's household.

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

16) Any other relevant factor.

As the language of the Act suggests, these factors are not

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

included as part of the analysis.

DISCUSSION

At the outset of our discussion, and before entertaining the

statutory factors as the primary format for this Opinion and

Order, we acknowledge there is considerable logic to both parents'

positions.

As we discussed with the parents at our hearing, virtually

every fifty-fifty custody arrangement has a shelf life after which

it is no longer the best arrangement for a child. In this Court's

experience, the timing of the change from fifty-fifty to some

other arrangement usually occurs at three times in the life of a

child. The first is when the child commences school. When school

begins, often parents live too far apart and in different school

districts so it requires a change. A second "time" is during the

pendency of elementary school when the parents see changes in

themselves and their situations which cause them to conclude one

situation or the other is probably better for school and activity

7
purposes. Those few fifty-fifty relationships which survive

elementary school are probably most frequently altered when the

child {now a teenager) expresses a preference to the parents and

that either precipitates an agreement or brings them to court for

a determination which almost inevitably disrupts the fifty-fifty

custody arrangement.

This case fits none of those categories. In fact, A.M.~. is

doing well in school according to both of these parents. He is

described by both of them as active, athletic, and able to get

along in school, in his activities, and in both households. The

pressure which exists regarding the fifty-fifty custody

arrangement in terms of its appropriateness seems to center on the

inability of these parents (undoubtedly increasing in part because

of this custody litigation during the past year) to communicate

effectively regarding A.M.s. and to demonstrate the flexibility

which usually proves critical to parents attempting a fifty-fifty
·"'-
custody arrangement. We view the case as it was described by the

Father when he offered that "the problem with our fifty-fifty

relationship is not A.M.~. but rather us (the parentB)". We

believe the Father is correct.

That said, the positions of the parents come clearly into

focus as logical positions. The Mother does not see a bridge over

the current problems if the fifty-fifty arrangement is maintained.

8
Conversely, the Father believes the fifty-fifty arrangement

continues to be important to A,Mi~. and offers that longer periods

of shared custody (during the summer, for example, he offered one

week/one week as a better arrangement) to reduce tensions. If a

fifty-fifty is continued (although we acknowledge this is not the

Mother's primary position) the Mother seems to agree with the

Father that longer periods of custody would probably be

beneficial. This is consistent with her presentation if not her

exact words. Our issue involves whether the time to end the

fifty-fifty custody arrangement which has represented the norm in

this case is now, or whether that decision should be deferred as

not in A./Vi,"$,'~ best interest presently.

Unfortunately, in making this determination there are some

complicating factors. One factor is that A.M.~. has been drawn

into this. Part of the Mother's position involves a belief that

A.~.~. would prefer to reside with her. The Mother's household

includes the Mother's other two children (, , age

fifteen and d..o..\J\.jk+~,.. ., age nine} who are children to two

other fathers. Although each parent gives a differing version as

to who ~confronted" A.M.~. (with the other parent present) to ask

him to voice his choice to everyone, this child was put in that

situation. Faced with th1s, A.M.~. said nothing. This is hardly

surprising. In fact, we would have been shocked if he had done

9
otherwise under those circumstances. This meeting, however,

beyond dividing the Mother and Father further, apparently had some

effect on A.M.~, so that the Father (apparently at his ·own

election) placed A.M.~, in counseling with Peggy Nadenick about

four weeks ago. As we will discuss later in this Opinion, that

A.M, ~. is now in counseling is a considerable concern as we do not

know what is (or is not) involved. With this foundation, we turn

to the statutory factors as enunciated earlier in this Opinion at

set forth at 23 Pa.C.S.A. §5328(a) as the basis for further

discussion.

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

We do not see this as a major issue in the case. These

parties were never married and their relationship was essentially

over by the time A.M..~. was born. However, they have (remarkably

in our view) successfully maintained a fifty-fifty relationship

for most of A./.t.~.'iS life. We have every confidence that either

of these parents would fulfill a court order as close to the

letter as humanly possible. In fact, they have both already done

so.

What is lacking in their relationship, and one of the core

reasons this hearing was probably necessary became more and more

apparent as we listened to the testimony of the parents. While

10
they have been willing to share A.~.~. and have each recognized

the importance of the other, they have lacked flexibility in

certain limited respects. Each of the parents recounted to us

individual events where they believe the other failed the test of

true cooperation. As two examples from the Mother's testimony,

she believes she has not been fully advised of certain medical

decisions which the Father has made relative to A.M.s.
Similarly, she was apparently "hurt" during a trip to the beach

when A.M.~. did not call her and she believed she had inadequate

information where A.M,1. would be. Conversely, the Father raised

an issue complaining that the Mother denied A.M.~. the opportunity

to be at his grandmother's (the Father's mother's) viewing.

These examples, which we would view generally in the context

of a custody litigation as minor obstacles, have become major

events for these parents. This is of great concern. Breakdowns

in communication and control issues are, in fact, contrary to the

letter and spirit that a fifty-fifty arrangement requires if it is

to go on into the future. Here we see evidence of that

deteriorating. Undoubtedly, this is part of the reason the Mother

brings her petition.

For his part, the Father conceded to the Court that he felt

in several of the instances which the Mother raised he probable

could (even should) have done better. This type of recognition on

11
the Father's part is hopeful in terms of the fifty-fifty

arrangement if we can fashion an arrangement which reduces the

tensions that are exacerbated presently by daily transfers.

Our issue is far more subtle than whether these parties would

follow a court order. We believe they can pass that test. The

greater question is whether these parents can achieve flexibility

and resolve communication and control issues sufficiently for the

fifty-fifty arrangement to go on much longer. For reasons which

we will state later in this Opinion we believe this can and should

be attempted in A.M,'$.'~ best interest.

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.

Issues of abuse are not present in this case. There is no

allegation of abuse by anyone against anyone either past or

present. At most, the Mother is concerned about the Father's new

wife } as perhaps (although not intentionally) disturbing

the balance which has existed in the fifty-fifty arrangement.

This is a natural reaction (in our view) on the part of the Mother

to the introduction of another woman who is important to A.M.~.
Of course, the Father's new wife also provides physical safeguards

and supervision of the child with the Father. We believe progress

needs to be made in this area. However, we do not view that as

impossible. In fact, the flexibility already demonstrated by

12
these parents in reaching and maintaining a fifty-fifty

arrangement for many years where the Father did not even find out

about his child's birth until the child was more than a year old

(at least) is remarkable. We believe there is more capability

here to resolve things than the parties are inclined to admit in a

litigation.

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

Not surprisingly, this is a strength for both parties. Each

of the parents seems to have participated in all aspects of

A,.M,'$.\'S life. This has been true regardless of which parent has

been "dominant" in a particular area. For example, although the

Father has co.ached A. M.~. , the Mother attends the games and

participates in getting A.M.~ to his practices (even attending

them on occasion). This same sharing has occurred with respect to

school conferences and medical (notwithstanding the recent

complaints the Mother has made).

This particular strength - namely, the involvement of both

parents in "everything" gives us pause with respect to terminating

a fifty-fifty relationship which undoubtedly has contributed

mightily in allowing this to occur. At the very least, it

suggests we should not do so lightly unless we are well satisfied

this will be in A. M."'.:>~~ best interest. We acknowledge a

disruption in the fifty-fifty relationship will inevitably change

13
the performance of parental duties where A.M,~. is concerned.

That said, we have confidence in each of these parents that the

duties will be performed.

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

This is an important factor in the case from several

perspectives. On the one hand, it is clear A.~.~- has benefited

and thrived in a fifty-fifty environment. On the other hand, it

is clear that he does not have the maximum available stability and

continuity given the almost daily transfers. In the end, this is

a major problem for most children in a fifty-fifty relationship

and increasingly as a child moves toward the teen years and

adulthood so the child's own agenda becomes increasingly important

as a factor.

In considering this factor, we also acknowledge the parties'

fifty-fifty historical arrangement has not been truly consistent

either. The parents have at various times done alternating four

days/three days, alternating five days/two days and are now doing

what amount to daily transfers during the school week and an

alternating weekend arrangement. A·M-~. has been able to survive

and thrive in all these changes.

Since it is our intention to change the daily transfers at a

minimum {neither parent seems to favor continuing them) A,M.~. is

going to have to make changes no matter whether we adopt a

14
continued fifty-fifty as the Father suggests or award primary

residential custody as the Mother suggests. In one sense, it is

encouraging (if we can use that word attached to a child in

counseling) that A,M.~. will have someone to talk to relative to

the changes which are going to necessarily occur as a result of

our Opinion. Our issue is not "will there be change". Our issue

is which change we will adopt. In either event, we need to

provide maximum stability and continuity for A.M.~. We are

assisted in that by the fact these parents live only four blocks

apart so nothing we do will require a change in school districts

or activities. We believe we can enter an order that will satisfy

A,M.~;~ need for stability and continuity while reducing some of

the parental tensions which will ultimately (if they have not done

so already) affect him.

5) The availability of extended family.

This is a positive in the case. The Father grew up in

Bellwood and his relatives live either in the Bellwood area or in

Altoona primarily. All of these resources are available to him.

For the Mother, although her brothers are at a distance with the

closest residing in Pittsburgh, he is apparently a frequent

visitor at the Mother's home for extended periods of time. The ex

wife of one of the Mother's brothers is also in the Tyrone area

and she maintains contact. The Mother also has a boyfriend in

15
Bellwood (not a resident of her household) who is regularly

involved with, A.M.~. All of these relationships appear to be

positive from 1 A, M.~.\~ standpoint. It is fair to note the Mother

has some concerns regarding the Father's new wife and her role

with , A- .M..~. The Father has some of the same concerns with the

Mother's brothers.

6) The child's sibling relationships.

This is potentially an important factor in the case. A part

of the Mother's case includes the potential to involve all three

of her children, S""'; cl0i~l-i~r-, i and A.~.~ .. r under one roof if she

becomes primary residential custodian of A.M,s. She is already

primary residential custodian of the other two children with their

fathers enjoying periods of partial custody. The joinder of

siblings can be an important consideration. In fact, the Mother

offered to place ~-~ on the witness stand (he is fifteen) to

discuss this issue. We offered to the Mother our belief ~~~

should not testify. This was not due to any belief on our part

that ;~o~ could not provide information. Rather, it was

protective of -:$1:>"" since nothing '$-Q""' would say would

particularly influence us and the situation (testifying) might not

be positive (especially if the outcome was not what So"""

desired). Frankly, we could not see a good reason to put him in

that situation given the offer as to his "desires". This does not

16
mean we do not believe there is a good relationship between ~o~

In fact, we hardly needed 1 ~o .....",s ; testimony to

confirm that as even the Father indicated he believed these

relationships were good. As matters stand, A.~.~. already has a

very real opportunity to bond with his half-brother and half-

sister. We have every reason to believe he has done that

(including our interview with him). We acknowledge that is not

the same, however, as living with them in a primary residential

custody situation. If we award the Mother primary custody, this

would be one of the positives.

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

As noted previously, we did interview A.M.~ .. We would

describe A.~.~. as reserved and (given the parent's descriptions

of him) perhaps extremely so. This was not surprising. After the

joint meeting about four wee ks ago to get A,M,~. 'S "opinion as to

where he should reside" we would have every reason to suspect just

a matter of common sense that A.M.~. is presently somewhat

traumatized by all of this. Our interview with A.M.~. suggested

to us we should be cautious since he appeared conflicted (to the

extent we could draw any opinion) in a one time meeting with a

nine year old. Certainly, A,M.,'$, made no well reasoned

preference. In fact, he made no preference at all and had he made

one we would have been well satisfied it was not well reasoned.

17
A,M,S. did not impress us as sufficiently mature to be

significantly involved in a decision of this magnitude.

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

This is another area of almost remarkable strength between

these· parents. While they were critical of their relationship

with each other and their ability to be flexible at times, there

was no claim that either parent has attempted to turn A.~.~.

against the other parent or win favor with him where custody was

concerned. Clearly, the Father believes his work ethic

demonstrated through his long term employment with Houtzdale State

Correctional Institution as well as his wife's military background

provide a disciplining atmosphere tc A,M.~. are positive. The

Father's role as coach and mentor of A.Iv\.~. and his relationship

with him seem clearly established. We expect the Father's new

wife to further this. Indeed, one of the Father's recurring

themes is that there is a period of adjustment any time A.M,~.

comes over to his house to adjust to the "rules of his household".

When we spoke with A,M.~. we talked about these rules and they

did not appear to have made any great impression on A.flt.~. As a

result, we viewed the Father's perception that A,M,1, might have

difficulty following the rules entering his household as just that

- namely, a perception as opposed to a definite reality.

18
 For her part, the Mother has tailored her work cleaning

houses to the needs of the children. She also receives child

support from all three fathers as a source of income beyond work.

It seems the Mother achieves a successful integrated household

when the children are together in a responsible and loving

fashion. A,M.~. does have chores when he is at his Mother's which

appeared reasonable in our discussion with A.~.~ . While there

are undoubtedly differences in the households, these differences

do not (in our view) constitute a major area of difficulty at the

present time.

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

This is a very important (and difficult) issue in this case.

Clearly, as this Opinion suggests throughout each of the parties

has, in fact, made sacrifices for A·M,~. and has shown the

capability of maintaining a loving, consistent, stable and

nurturing relationship. If we are to dissolve the fifty-fifty,

however, what is much less clear to us is which of the parents is

more likely to maintain that in a situation where each of them has

done a (mostly) good job to this point. Perhaps an even greater

factor is that we do not know. A,}A.."';;.'-s emotional needs at the

present time. Our interview with him developed little on that

issue and we are not in a position to even guess at what his

19
emotional needs might be. In fact, A.)'I.~. has just entered

counseling where we (and the parents) will undoubtedly learn more

about his emotional needs and be able to make more reasoned

decisions than we are in a position to do presently.

One of the real problems if we dissolve a fifty-fifty

relationship under which the parents themselves view A.~.~- as

essentially successful is what is our alternative. The Mother

comes before the Court with the direct response that the correct

alternative is her achieving primary residential custody. The

Father, on the other hand, believes (and his presentation was

almost totally geared to the reasons why) the fifty-fifty

relationship should be continued. Only at the end of our hearing

did he suggest he was the superior primary residential parent if

we chose to terminate the fifty-fifty. In this important regard,

from a factor finder's perspective our hearing was somewhat

underdeveloped. We hasten to add that this was not the fault of

counsel or the parties. In fact, each of the parents appeared

prepared to discuss their respective positions as to continuing

the fifty-fifty and/or the Mother assuming primary residential

custody. The Mother, however, did not spend a great deal of time

talking about how a fifty-fifty would be continued if the Court

chose to do it. Similarly, the Father did not spend a great deal

of time talking about how his household is superior to the

20
Mother's. While the Court is confident this reflects their belief

system, it gives us something of a quandary since our record does

not develop the areas of the Father's perceived superiority to the

Mother as a primary residential custodian nor does it adequately

develop the Mother's views as to how we could improve the parties'

communication problems and control issues which everyone agrees

are the primary source of difficulty presently. This leaves the

Court in a ~ituation where we question the adequacy of our own

record in those regards and especially if we make a final

determination as to primary residential custody. This is

compounded by the fact A . .M,S. is· in counseling which might (or

might not) develop information which would assist the Court if we

are going to abandon the fifty-fifty as to which household

represents A, JI,\,'$.'~: best interest. The fact the Father is

recently married also complicates the situation since this is a

major change to his situation.

For us, this is one more reason why the fifty-fifty should

continue to be attempted with modifications designed to assist the

control issues and communication problems which represent the only

issues why this fifty-fifty should not continue at the present

time. In all other regards, specifically as they relate to

A.M,"S.. , the fifty-fifty is an environment in which he can succeed

based on the fact everyone says he has succeeded to this point.

21
Where no one sees A,11'1,"'$, as "in trouble" that in itself indicates

the change is contraindicated. We also understand A.~·~1~

Father's placing him in counseling may be an indication that

A.M,1. is, in fact, in more trouble than this history suggests.

This may be part of the litigation cycle and the parents'

inability to keep their issues away from A,M..~. . However, we

don't know. Under those circumstances, it is difficult to

determine A.14,-S.'.s best interest in terms in the household in

which he should reside if we terminate the fifty-fifty

relationship (which we concede is likely to occur at some point).

While we acknowledge this reality, we are uncomfortable choosing

between the households at the present time. If, in fact, we are

required to do at some point through the court system we should

hold a hearing which emphasized the comparative strengths and

weaknesses of each household far more than the record we created

on December 30th. This uncertainly on our part is significant in

our view the fifty-fifty relationship should presently be

maintained (although altered to try to improve the situation for

everyone).

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

22
 Everything we have said on the preceding factor would apply

with this factor as well. We have nothing more to add specific to

this issue.

11) The proximity of the residences of the parties.

This is a great strength in the case. As noted previously,

the parties reside only several blocks apart within easy walking

distance for ;A,M.~. The parties live in a rural community so

that they are even more accessible in the same town envirbnrrient

where they reside. No matter what we do, as noted previously, no

changes of school district, church or activity structure for

A,fa\.~. are implicated.

i2) Each parent's ability to care for the child or ability
to make appropriate child-care arrangements.

This is not an important issue in this case. This is (again)

a credit to both of these parents. To our observation, both

parents have the ability to care for ,A.M.~. and have made

considerable sacrifices to do so to a degree which is unusual in

our experience. We do not struggle with either parent's ability

to make appropriate childcare arrangements when those are

required.

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.

23
 The level of conflict in this case is the primary issue in

the situation before us. To this point, where A.A.~. alone is

concerned we have no doubt the fifty-fifty arrangement (even with

all of its alternations and the reality these changes have made

the parents somewhat "crazy") has benefited A,J\J.S. . We do not say

this based only on our own observations. We say this because both

parents have testified that has been the reality .. Because ·---that is
- -- ----- - ..

true, we believe the issue of primary residential custody has very

little to do with A.~,s:s relative success or failure in the near

term and everything to do with the Mother's belief (not

unreasonable) that the communication problems and control issues

have reached the point where the fifty-fifty relationship cannot

continue. Frankly, this Court is not sure whether the Mother is,

in fact, correct. Because that is true we are reluctant to enter

an order which favors either the Mother (as she suggests) or the

Father (as he suggests). In the end, we are not satisfied the

parties cannot resolve their communication issues and control

problems at the present time so that the fifty-fifty relationship

which has been historically beneficial tc A,~1~. cannot continue.
I
Of course, we may learn things from A,M,'S.1\~ counselor that this

conclusion on our part may no longer be true. What we do know

with some sense of certainty presently is that ,A,M.~. is presently

subject to so many transfers and exchanges that the parents'

24
problems are necessarily exacerbated and we believe unnecessarily

so. The actions which we intend to take will be designed to make

this easier.

When we questioned the Father specifically as to why he

desired to go back to a four/three, three/four as the preferred

measure of visitation we made an assumption which turned out to be

erroneous. Specifically, we assumed when the Father wanted this

arrangement his work schedule (rotating two days off involving

every day of the week) was at the heart of his request. That did

not, however, turn out to be his testimony. When we questioned

the Father further inquiring why he was willing to do a week on

and a week off in the summer (thinking perhaps we should do that

year round to reduce the number of transfers) the Father indicated

that, in fact, he favored the week on/week off year round. He

explained it was 1 A.M.~.1~ ; counselor who communicated to him that

A,M.~. might prefer a three/four, four/three in an attempt to

reduce the transfers. It is all well and good for the Father to

take that position. However, we do not feel A.II.\.~. is in the best

position to make that decision and, in fact, he should not have

any particular input into it. The fact A,M,S. prefers a

continuation of what would continue to be a ~lot" of transfers

between parents who have communication problems and control issues

suggests perhaps 1A.M.~. does not truly understand the situation.

25
 In fact, weekly transfers will almost assuredly make this

better and we intend to implement them immediately with exchanges

occurring Sunday at 6:00 on a weekly basis. We believe this can

accomplish many things. First, it will remove for A.M.,~. the

repetitive transfers and resulting changes in his situation which

are occu rr.i.nq so frequently presently. These cannot be good fOr

him over an extended period of time and especially while the

···parties' conflict level is highest. Second, it will ease pressure

on the parents since it will not require so much back and forth

between them with opportunities for tensions to arise. Phone

contact with A.M.~. during each party's week by the non-custodial

parent should be s Lmp.Le-, direct, and unimpaired by both parents.

However, it should not be designed to make the other household

crazy. These parents live close together and given A. M, :S. \$

school and sports schedule they are both actively involved. That

will continue to assure a lot of contact with both parents no

matter whose week it is. The Mother has complete access to

A.M, ~/~ ; sports schedule ( through the other parents, their

children, and A,M,,s. in addition to the Father). The Father

should certainly keep her advised (as that will reduce tensions)

by whatever form of communication he is used to do it. While it

is not our practice to order it, a short note back and forth as to

A./11\.,s.1,s upcoming events at the time of the exchanges on Sunday

26
(or any other convenient time) or a text message which

accomplishes that same purpose should suffice to maintain an open

line. Frankly, if this does not work we will know that the case

probably needs a hearing at which our focus would be which

household should become ~A,.M,·V.s primary residence. We simply are

not satisfied the time for that action is now. The passage of

time and the opportunity for continued counseling should allow us
-··· -· ···---·-··-·

to develop this more fully if we are required to do so. If

matters do not improve with the implementation of longer periods

of custody, then we will all know there is little hope for the

status quo into the future.

We acknowledge this decision may be something of a

disappointment to the Mother. We are not saying to her she is not

the appropriate primary residential custodian. We are simply

saying that any decision in regard to .A.It.\,~,\~; situation into the

future seems premature. Similarly, we are not saying to the

Father that the fifty-fifty is the best relationship for all time.

We are only satisfied it is in A.M.~,~ best interest for now.

How long that is true will be determined by the parents' attitudes

and A.M,-s.'s progress.

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

This is not particularly an issue in the case.

27
 15) The mental and physical condition of a party or member
of a party's household.

This is not particularly a factor in the case.

This concludes our discussion of the statutory factors. We

believe that on balance the status quo of the fifty-fifty

relationship with significant alterations (to weekly exchanges

from the present schedule) represents the best alternative to test

. .whe.t he r a fifty_-=-f.i.f_t.y_c_ustody arrangement can _continue--to-succeed--.

for A,IIA.,,S. • If that proves wrong in the judgment of either party,

we invite them back and we will certainly hear their positions

further. We do not blame either party with respect to the

breakdowns in communication and control. They are inevitable at

times. It is also significant to us that the period from the time

of their last agreement in November 2012 which included the

Father's marriage appears to have exacerbated the communication

and control issues. Of course, the litigation cycle leading up to

this hearing never makes this easier. We are mindful of that.

There is a substantial part of our thinking which goes to the

possibility that if we can make the periods longer and remove the

parties from the litigation cycle for some period of time we can

make matters better for A./1.t.~. and for the parents. If this is

not true, we will at least have fairly tested it as it applies to

A,A1.~~~ best interest so that everyone will feel more certain

that a change needs to be made than is the case presently. All of

28
this is important to A.M,S,\'S future. Accordingly, and consistent

with all of the above we will enter the following Order:

1. The parents shall share the physical and legal custody

of the minor child, A. M. -S. , born May 2004.

Residential custody of the minor child shall be shared.

2. The time arrangements for the Plaintiff and Defendant

shall be as follows:
·- ····-···--
a. A·~·~. shall be with his Father on an every other

week basis from Sunday at 6:00 p.m. until Sunday at

6:00 p.m., commencing Sunday, February 9th, 2014.

b. AM,"$. shall be with his Mother on alternating

Sundays, with the Mother's first week to commence

Sunday, February 16ili, 2014.

c. A,M.~. shall spend the period from the date of this

Order leading up to January 12th with his Mother.

We understand this will be a partial week which

unnecessarily exists due to the date of our Order.

3. Holidays -

a. Christmas - In even numbered years, the Father

shall have the minor child from 3:00 p.m. Christmas

Eve until 3:00 p.m. Christmas Day and with the

Mother from 3:00 p.m. Christmas Day until December

26th at 3:00 p.m. In odd numbered years, the Mother

29
 shall have the minor child from 3:00 p.m. Christmas

Eve until 3:00 p.m. Christmas Day and with the

Father from 3:00 p.m. Christmas Day until December

26~ at 3:00 p.m.

b. Thanksgiving - In even numbered years, the Mother

shall have the minor child the day before

Thanksgiving at 3:00 p.m. until Thanksgiving Day at

3:00 p.m. and the Father shall have from

Thanksgiving Day at 3:00 p.m. until the day after

Thanksgiving at 3:00 p.m. In odd numbered years,

the Father shall have the minor child the day

before Thanksgiving at 3:00 p.m. until Thanksgiving

Day at 3:00 p.m. and the Mother shall have from

Thanksgiving Day at 3:00 p.m. until the day after

Thanksgiving at 3:00 p.m.

c. Memorial Day and Labor Day - In even numbered

years, the Father shall have the minor child from

3:00 p.m. the Sunday before the holiday until 7:00

p.m. on Memorial Day/Labor Day. In odd numbered

years, the Mother shall have the minor child from

3:00 p.m. the Sunday before the holiday until 7:00

p.m. on Memorial Day/Labor Day.

30
 d. Fourth of July - In even numbered years, the Mother

shall have the minor child from 9:00 a.m. on July

4th until 12:00 noon on July 5th. In odd numbered

years, the Father shall have the minor child from

9:00 a.m. on July 4th until 12:00 noon on July 5th.

e. Easter - In even numbered years, the Mother shall

have the minor child the Saturday before Easter at

7:00 p.m. until Easter Sunday at 7:00 p.m. In odd

numbered years, the Father shall have the minor

child the Saturday before Easter at 7:00 p.m. until

Easter Sunday at 7:00 p.m.

f. New Year's (Eve) - In odd numbered years, the

Mother shall have the minor child from December 31st

at 3:00 p.m. until January 1st at 7:00 p.m. In even

numbered years, the Father shall have the minor

child from December 31st at 3:00 p.m. until January

pt at 7:00 p.m.

4. Each party shall be permitted to telephone the child at

reasonable times and intervals when the child is in the

custody of the other parent.

5. The child shall be with the Father on Father's Day and

with the Mother on Mother's Day with the times to be

from 9:00 a.m. until 9:00 p.m.

31
6. The party having custody of the minor child on his

birthday shall celebrate the child's birthday with the

child. The parent out of custody on the child's

birthday shall celebrate the child's birthday with the

child on the next date that they have custody.

7. Transportation to and from the place of physical custody

with the subject minor child shall be shared by mutual

agreement of the parents.

8. If either party is unable to exercise their physical

custody rights at any point and time, they shall provide

at least twenty-four (24) hours prior notice to the

other party in the absence of an emergency.

9. Each party shall keep the other informed of their

current address and telephone number.

10. Each party shall keep each other informed of the child's

health, progress in school, school activities and

general welfare and shall consult the other parent

concerning major decisions affecting the child, to

include education, religious training and medical

treatment. If an emergency or illness requiring a

physicians attention should occur to the child while in

their physica~ custody, each party must notify the other

party.

32
11. Each party is entitled to receive directly from schools,

health care providers, or other relevant sources,

information concerning the child.

12. The parties shall not argue or engage in heated

discussions in the presence of the child.

13. Neither party shall engage in any conduct which presents

to the child a negative or hostile view of the other,

nor shall they allow any third party to do or say

anything that would hamper the natural love and respect

of the child for the other.

14. Each parent shall encourage the child to comply with

this parenting agreement and foster in the child a

positive view of the other.

15. The party who has physical custody of the child should

encourage, prepare and have the child available at the

designated times and places so visitations occur

smoothly. Likewise, the party exercising partial

custody or visitation rights should encourage, prepare

and return the child promptly at the designated times

and places.

16. THE PARTIES MAY DECIDE DIFFERENT TIME .ARRANGEMENTS AND

MAKE DECISIONS FOR THE CHILD WHENEVER THEY MUTUALLY

AGREE TO DO SO. NOTHING IN THIS AGREEMENT IS UNDERSTOOD

33
 TO LIMIT OR RESTRICT THE ABILITY OF THE PARTIES TO

MUTUALLY AGREE ON ALTERNATIVE PARENTING ARRANGEMENTS.

IF FOR ANY REASON THE PARTIES CANNOT AGREE, THE TERMS OF

THE CONSENT AGREEMENT WILL BE FOLLOWED.

17. ALL HOLIDAY SCHEDULES SHALL SUPERSEDE ANY OTHER TIME

ARRANGEMENT UNLESS THE PARTIES MUTUALLY AGREE TO DO

OTHERWISE.

18. VIOLATION OF THIS ORDER BY ANY PERSON MAY RESULT IN

CIVIL AND CRIMINAL PENALTIES, INCLUDING PROSECUTION

PURSUANT TO SECTION 2904 OF THE PENNSYLVANIA CRIMES

CODE, INTERFERENCE WITH CUSTODY OF CHILDREN.

19. Jurisdiction of the child shall remain with the Court of

Common Pleas of Blair County, Pennsylvania, unless or

until jurisdiction would change under the Uniform Child

Custody Jurisdiction Act.

20. No party shall relocate the children unless every

individual who has custody rights consents to the

proposed relocation, or the court approves the

relocation. Any party who desires to relocate with the

children shall first notify every other individual who

has custody rights. The party who desires to relocate

with the children must also comply with 23 Pa.C.S. 5337

34
 et seq. (A copy of this statute is available in the

Blair County Custody Office).

In closing, we ask the parents to rededicate to A.M, ~.'.:s best

interest under the arrangement which we are presently ordering.

We hope this will give you some relief. We do believe that the

removal of distancing in time of the events of the past year

(including this litigation) may be an assist to get this back on a

more even keel. Your ability to cormnbnicate and to "correct" some
·n,,

of your behaviors will be critical to whether a fifty-fifty

arrangement can succeed for any s'ign:i,.Jicant period of time into

the future. We wish you well in that regard as we believe both of

you in the most important testimony which you have repeated

consistently - namely, that A./.\,<.,. is essentially doing well both
1

in school and his activities. It would be a shame, albeit it may

be necessary to conclude an arrangement where that is the reality

based on your own problems of communication and control rather

than 1A.~.~>s needs. We wish you every success in making the

necessary adjustments.

BY THE COURT:

FILED:
ajh

35
 Circulated 02/22/2017 04:47 PM

IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA

M.~.
Plaintiff

v. :NO. 2006 GN 2267

V.M. l=.
De f endarit; .......
...._.
. . . -.-:_)
".::n

HONO_RABLE HIRAM A. CARPENTER, III SENIOR JUDGE

TERRESSA E. GEORGE, ESQUIRE COUNSEL FOR

THOMAS DICKEY, ESQUIRE COUNSEL FOR
( . )
-··J w

OPINION·AND ORDER

This matter comes before the Court for resolution of the

existing issues relating to the custody of these parent's only

child, A.fvl.~. , born May 2004. Hearings were held in

the matter commencing October 30, 2015, which afforded both

parents the opportunity to testify to their positions regarding

the primary custody of . A.,/\1\.":I. Next, A.M.~. was then

interviewed by the Court several months before the conclusion of

the school year which formally closed proceedings. After the

conclusion of these proceedings, the parties were then afforded

several months to determine whether or not a further agreement

could be reached between them which would have eliminated the

need for the Court to make a determination over the issue of
·~
primary custody. In that regard, the parties had agreed ·from
 the outset that there would be no change in A,~.~.~ primary

custody prior to the end of the school year which occurr~d in

June 2016. In the interim, the status quo·was maintained by
•. <..,

that a~reement. With the conclusion of the school year and no

agreement now having been reached, the record is presently

closed and the matter is ripe for determinatio~ before the

Court.

As the record will reflect, this Court has previously

authored a thirty-five page opinion regarding the custody of

A.M.~ .. That opinion was filed on January 30, 2014. We

incorporate that opinion in its entirety in the opinion we

author presently noting that with respect to many of the matters

discussed in our January 30, 2014 opinion our views remain

unchanged.

Essentially, we co~tinue to believe that each of these

parents have performed remarkably and steadfastly with respect

to :A,M.~ .. It was primarily that reason, taken together with

l A. ./o\,c..'\ consistently solid development during their fifty-fifty

shared custody arrangement, t~at convinced this Court at the

time of our earlier writing that some continuation of the

party's fifty-fifty custody relationship should be maintained.

In that regard, we were taking what for this Court was

almost an unprecedented step - namely, maintaining a fifty-fifty

relationship where one of the parents (the Mother) was firmly-

2
opposed and the other parent (the Father) also had questions

about the viability of the arrangement. Knowing this, we

invited the parties back before the Court should our tweak of

their fifty-fifty arrangement (which provided for fewer

transfers) prove unsuccessful.

Regrettably, the parties are now back before the Court with

that arrangement having proved unsuccessful in the view of both.

By hearing the matter again in an additional full evidentiary.

hearing commencing less than two years after our January 30,

2014 evidentiary hearing we honor our pledge to the parties that

they could (and should) return should the arrangement prove

unsuccessful.

While the pretrial narratives of the parties emphasize that

neither of the parties was "happy" with the fifty-fifty

arrangement we acknowledge that (in our view) as we heard the

Father's testimony there appeared to still be a question in his

mind whether a fifty-fifty might actually still be best for

Because we have that perception we will address the

issue of a further continuation of the fifty-fifty relationship·

first.

As the parents. (hopefully) read again our January 30, 2014

opinion it should become apparent to them that while we believed

a continuation of the fifty-fifty relationship was best we

expr'e ss ed doubts several times in' our opinion whether this would

3
prove successful. Our caution that the fifty-fifty might prove

unsuccessful was based on the simple reality that fifty-fifty

relationships are rarely able to be maintained forever. We

spoke to this at length in our earlier opinion and will not

repeat everything we wrote earlier. The eventual "termination"

of fifty-fifty relationships for various reasons remains the

reality for most cases. As we noted in our earlier opinion,

howeve r , t,his case did not (again in our: view) fit--the-- -mold of

"most" cases.

As we offered in our January 2014 opinion at pages 7-8 we

outlined in detail our experience with fifty-fifty relationships

and the types of events which typically precipitate a

termination of the arrangement while noting at page eight of our

opinion that this case fit none of the traditional categories

familiar to our experience. In fact, we viewed the problem with

the fifty-fifty relationship which brought you before the Court

was a problem totally between you while the relationship itself

was still most beneficial t o A ,M.~. . Unfortunately, that is no

longer our view. In fact, the problems between you have now

reached a point where we are satisfied that you can no longer

co-parent in a fifty-fifty relationship successfully.

We base this on several fundame~tal realities. First, our

belief that the frequent transfers. (almost _daily) which were

occurring prior to our 2014 opinion would improve communication

4
has proven to be incorrect. The truth is that the band-aid

which we put by extending the periods to one week on/one week

off throughout the year bought only a few months of peace in

that by mid-2014 both sides were filing multiple petitions over

issues where even a modest ability to communicate would have
...~..,..;

allowed for agreement. Meanwhile, the tensions between you as

parents (and the Father's new wife) escalated to a point where

_pol.ice involvement occurred with a resulting increase in

tensions. As A.M.~. approaches his teenage years, none of this

has even the possibility of healthy parenting. While A.~.~.
appears to still be doing well according to all accounts, what

we have presently is a time bomb where his development -into.his

teenage years seems almost certain to trigger a reaction one way

or another. Worse, many of the advantages which we had in 2014

and especially the fact you both resided in the Tyrone School

District no longer exists. In the summer of 2015, in fact, the

Father moved into the Altoona School District. With that move,

a choice of school districts is inevitable due to the fact that

the transport either way by whichever parent was "a twenty

minute drive awayn is impractical generally and made even more

impractical because of l A.ft\,'>. ',s participation in sports

throughout the school involving numerous evenings due to the

wrestling schedule and his participation in various clubs.

Inevitably, these problems will only escalate as A,.M..~. gets

5
 older. For all of these reasons, we believe the parents are

correct in returning to the Court for resolution of the issue of

primary residential custody. We also believe the Father's

reluctance (as we perceive it) to commit fully to the

designation of a primary residential custodian is no longer the

appropriate view. Simply put, the history since January 2014

taken in total convinces us this is simply not going to work.

·- -)\s. always, our paramount concern in a case whether it

involves custody or visitation is the best interest and

permanent welfare of the children. Commonwealth ex rel Pierce

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

considerations are deemed subordinate to the child's physical,

intellectual, moral and spiritual well being. In the interest

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

not have a property right in their children. Whatever claim

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

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

generally Common.wealth ex rel Children's Aid Society v. Gard, 66

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

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

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

has been to abolish presumptions in custody disputes. In

children custody cases, -the Court must cqntinually hew to the

polestar of a child's best interest eschewing presumption and

' 6
 surmise. Morris v. Morris, 412 A.2d 139, 141 (1979). The Court

.,,,,,~ should avoid mechanical determinations and focus its analysis on

a close scrutiny of all particular facts relevant to determining

the child's best interest. In Re: Custody of Hernandez, 376

A.2d 648, 653 (1977). Further, the ability to care for a child

is to be determined as of the time of the custody hearing, not

as of an earlier time. In Custody of Frank, 423 A.2d 1229

(19-80) . Decisions must be made on the basis of current facts

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

A.2d 373 (1978). The primary concern in custody matters lies

not with the past but with the present and future. Hooks v.
-
Ellerbe, 390 A.2d 791 (1978). Facts at the time of hearing are

the foundation for the determination of the Court. Augustine v.

Augustine, 34~A.2d 477 (1974). At hearing, each parent shares

the burden of proving by a preponderance of the evidence that an

award of custody to him or her would serve the best interest of

the child. Ramos_v. Rios, 378 A.2d 400 (1977). Continuity and

stability are important elements in a young child's emotional

development. Commonwealth ex rel Jordan v. Jordan, 448 A.2d

1113 ( 1982) .

The principles enunciated above are time honored in

Pennsylvania law. More recently, however, as a result of the

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

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

7
petition for modification of a custody order, the trial court

must perform a "best interest of the child" analysis corrs i.der-Lnq- )

·all of the Section 5328(a) factors. Those factors are as

follows:

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

2) The present and past abuse committed by a
party or member of t he party's household, whether
. .t.her e is a continued risk of ha rrru.t.o t.he.cch i ld or
an abused party and which party can better provide
adequate physical safeguards and supervision of
the child.

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

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

5) The availability of extended family.

6) The child's sibling relationships.

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

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

9) Which party is more likely to maintain a 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.

8
 12) Each party's ability to care for the child or
ability to make appropriate child-care
arrangements..

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

14) The history of drug or alcohol abuse of a pc:).,r.ty
or member of a party's household .

. . _ .15 l . The_mental and physical condi tien- ·of-a ..party
or member of a party's household.

16) Any other relevant factor.

As the language of the Act suggests, these factors are not

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

included as part of the analysis.

DISCUSSION

With the determination made that it is necessary in

best interest to determine a primary residential

custodian, we turn to the statutory factors as the primary

format for this opinion and order.

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

At the time of our January 30, 2014 writing we did not see

this as a major issue in the case. That opinion on our part was

solidly based on the remarkable achievement by these parents,

9
 who had little or no relationship before . A.1-1,-s.'~ birth, in

maintaining a fifty-fifty custody arrangement fo~ ten years

without much need for outside intervention. Unfortunately,

since our order of January 30, 2014 problems have become more

frequent because of fundamental communication and coritro1 issues

and have, in fact, increased difficulties. Issues such as

, A.~.~.'s possession and use of a cell phone which might have

. provided some_ r.elief .. _during the parents periods of . - s epar.at-Lon ·

from A.M,:4S. have ( instead) become a source. of difficulty. In

this regard, we reference our January 30, 2014 Opinion at page

twelve as follows:
- ..
Our issue is far more subtle than whether
these parties would follow a court order.
We believe they can pass that test. The
greater question is whether these parents
can achieve flexibility and resolve
communication and control issues
sufficiently for the fifty-fifty
arrangement to go on much longer. For
reasons which we will state later in this
Opinion we believe this_can and should be
attempted in A,/1\,i.\~ best interest.

The above represented our view of the party's situation

relative to encouraging and permitting future contact. At this

juncture they have failed that test. In fact, they have not

been able to achieve flexibility and resolve their control and

communication issues sufficiently for.us to believe with any

confidence that flexibility will ever occur.

10
 That said, the issue favors neither party to such an extent

that it would provide a sound basis (in itself) to favor one

party or the other. There are simply too many complaints each

way. This issue, however, does .r'e s ona t e as one of the primary

reasons why as A.~.$. enters his teenage years the fifty-fifty

relationship is .no longer appropria~e. A .-4\.~.'$ life into these

next few years will require a maximum of. flexi?ility as opposed

· ···-··- __ t::Q_J:.hose years when he was far more dependent; on each--e-f--hi-s-·----

parents to make the decisions during their periods of custody.

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

Issues of abuse have never been present in this case.

There has never been an allegation of abuse.against anyone past

or present. Rather, what. w·e have seen over the intervening two

years is a continuation of the poor relationship which exists

between the Father and the Mother as well as the Father's new

wife This has led to police involvement on at least

two occasions. Significantly, neither of these occasions

involved A.M.~. directly although he was present (obviously) at

the wrestling banquet where separate confrontations apparently

occurred between the Mother and. the Father and the Mother and

the step-mother. While these were certainly unhealthy for

A.M.~., they were far more indicative of the need to terminate

11 .
 the fifty-fifty relationship than in addressing the question of

who specifically should be the primary residential custodian.

Simply·put, they are demonstrative (very) of the reasons that

bring us he r e. Be yond that conclusion, however, the events do

little to decide an issue such as primary residential custody.

Indeed, to decide primary custody based on this type of isolated

occurrence would be a poor exercise of our discretion and

__ extremely unf.a ir__t_o__A_,_M,_,_,s,__ . In fact, to the extent they.. - - - --·- ---- --

represent "abuse" issues or simply the poor relationships

existing between these respective individuals they do not serve

as a primary basis for our determination of primary residential

custody.

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

This issue continues to be a strength f6r both patties.

Each of the parents participates in all aspects of A,M.~>s
life. That participation, in fact, was so strong by both of

these parents that it gave us pause at the time of our earlier

opinion (See page 13 of our Opinion and Order of January 30,

2014) in terminating the fifty-fifty relationship. Beyond that,

we do not view either parent more positively than the other in

terms of their willingness to perform parental duties. While.

their priorities with respect to A.M,S .. '-& involvement

(especially in sports) may be somewhat different, we have no

12
doubt that either parent would see that A.~.~. was actively

involved in those activities in which he wishes to participate.

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

This is probably the most important factor in the case as

it clearly represents the area where the most change has

occurred since our January 2014 Opinion. As noted previously,

at the time of our earlier opinion these parties lived blocks

from each other. Now, due-to the Father's move to the Altoona

School District not only is there a twenty minute drive involved

between their homes but·we confront a situation where if the

Father is designated the primary custodial parent a change in

school district to Altoona becomes a veritable

certainty. In fact, if that· change did not occur A.~.~. would

be subjected to numerous daily trips back and forth from Tyrone

to the Father's residence, which would requirs A.Ai\.~. to get up

earlier to go to school while (inevitably) putting him at a

distance from his friends and social life with his fellow

students. For these reasons, the Mother would offer more

stabi 1 i ty as the primary residential custodian if A. M .~. is to

remain where he has always been at Tyrone.

Because of the reality that A.k.s. would be transferred to

the Altoona Area School District or be exposed to significant

back and forth to Tyrone if the Father is primary residential

13
 custodian it becomes necessary to ask a very important question

- namely, is .A.~.~. better served in the Altoona Area School

District than he is in Tyrone? Considering that question, the

answer is clearly no. In fact, A·M.~. is better served

remaining in the Tyrone Area School District for numerous

reasons. First, and foremost, he is clearly succeeding there.

That is the testimony of everyone. To relocate a child away

·c,-·cc--c·,··cc:f-::r:Qm,:-ch-i-s,..,.,we-1-1 established relationships ( according to :-,\"';-"ft.\;'S-., h.rs: -- ----

best friends are in Tyrone) and a school district where he is

successful (according to everyone} requires reasons. Simply

put, from the standpoint of his development those reasons do not

exist. In fact, A.M,4$.. residing in the Altoona School District

and attending there would fundamentally change everything that

he has experienced to this point. While iA,M,s. is certainly

flexible, this factor is extremely important to us and to

In that important sense, this opinion is very different

from the one we entered earlier on January 30, 2014 where we

offered the following on the issue of stability and continuity:

We need to provide maximum stability and
continuity for A,A--i.~ .. We are assisted in
that by the fact these parents live only
four blocks apart so nothing we do will
require a change in school districts or
activities. We believe we can enter an
order that will satisfy A./.t,S,':s need for
stability and continuity whi~e reducing
some' of the parental tensions which will

14
 ultimately (if they have not done so
already) affect him.
(See Opinion and Order of January 30, 2014, pg. 15) .

What was true then is no longer true. This case has, to

some extent, become a relocation case. Given A.M.~ s
1

familiarity with the Tyrone School District, his friendships in

the Tyrone area, and his successes to this point it is clear

that this factor strongly favors A.M.~. being placed in the

---pr±ma~ry-,-custo-ay--ocf-,-his Mother where that stability exists.

5) The availability of extended family.

While there was testimony as to some changes, both the

testi many and our interview with A.M.~, suggest. that these

relationships all continue to be positive. This is not a major

factor in our decision.

6) The child's sibling relationships.

At the time of our earlier hearing, as part of the Mother's

case for designating her as the primary residential custodian

she emphasized that this would place all three of her children -

, and A.Ni.~. - under one roof. Although '5.~i-.. and

d°'...."';i~er have other fa the rs, the Mother was at the time of our

earlier writing and continues to be their primary residential

custodian. The joinder of siblings becomes an important

consideration when considered in the light of the fact that the

Father has moved to Altoona which places additional separation

between these siblings than-existed when they were four blocks

1.5
 apart. As occurred at our earlier proceeding, the Mother again

offered her sorl s testimony in support of these

relationships~ We (again) declined to hear him·based on ~o~~

minority. In that regard, we are also guided by the fact the

Father made no claim these relationships were not healthy. As

we noted previously, if we award the Mother primary custody this

would be one of the positives. (See Opinion and Order of

----Janua=i::-y-,-3-0,,,---2-0,14, pg. 17) .

7} The well-reasoned preference of the child, bas~d on
the child's maturity and judgment.

Once again, as we had at the time of our earlier opinion,

we did interview A./11\, ":;. Obviously, having had the opportunity

to interview him with respect to our January 30, 2014 Opinion,

we were curious as to his development. We were also interested

in assessing how the parents' ongoing difficulties (clear to

everyone} might have impacted A Jv,., -s. Further, knowing that

was entering counseling (directed by the Father) at the

conclusion of our earlier proceedings we were anxious to assess

this as well.

In the interest of completeness, having raised the issue of

the counseling, we note the counseling did not appear to be

indicated after it was commenced .and it was terminated by the

counselor (Peggy Nadenick). The counselor did not testify at

our proceeding or submit any report.

16
 Our interview witl:· A..M._~r- was significant in two respects.

Although the Mother had indicated she believed A.~.~. preferred

her as the primary residential custodial parent, he did not make

any attempt to choose between his parents. Instead, when we

asked him generally whether there was anything we (the Court)

could do to assist him he suggested that "we help his parents

get along better" as his recommendatibn. A response of this

nat-ur-e ,suggests several things. First, that .-:::fA·,f!..,~,.---:-c: is very

aware of the extent of the difficulties between his parents.

-Second, that they have begun to affect him to the extent that he

would make such a comment to the Court. Third, that ,A,M,~. is

thinking about his situation in a mature fashion and clearly

recognizes that his ability to.remain in a "fifty-fifty

custodial relationship" is at issue.

Beyond that, while choosing neither parent specifically

A,M.~. did indicate a clear preference for remaining in the

Tyrone School District. Obviously, this is extremely

significant to our determination. Certainly ~.~.~. can hardly

be blamed for taking that view. He was clear that his friends

and activities are primarily Tyrone based. His success (again

according to everyone) in Tyrone as opposed to marching off into

the wild card which the Altoona School District would inevitably

represent again demonstrates maturity. In this regard, .A.~.1.

17
 did impress us in terms of his ability to provide something

meaningful to this deliberation.

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

Although the difficulties between these parents have

increased in terms of the tension level, the issue of alienation

is not a point of emphasis for either. There wa s.e no claim that
-- -------- --·---- ----------- ·-··-·

either parent has attempted to turn A,A.~ against the other

parent or win favor with him where custody was concerned. As we

noted previously, the Father continues to believe his work ethic

demonstrated through his long term employment with Houtzdale

State Correctional Institution as well as his wife's military

background provides a disciplining atmosphere to A.P..,~. which is

positive. The Father's role as coach and mentor of, A.~.~- and

his relation with him in those regards also remains clearly

established.

For her part, the Mother's situation remains remarkably

unchanged. The Mother continues to tailor her work to meet the

needs of her three children. She also continues to receive

child support from all three fathers as an additional source of

income.

For his part, A.M.~. seems content in both households and

speaks positively about both of them.

18
 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.

At the time of our earlier writing it was not clear to us

which of these parents was more likely to maintain a loving,·

stable, consistent and nurturing relationship with A.M.~. We

could offer little more than commending each of them for doing a

(mostly) good job to this point.

-,-------------------------_-W-h-i.,.l-e,.,.,we---retain that view where each of. the-parents is------;---

concerned individually, we no longer question (as we did at

length in our earlier opinion) (See pgs. 20-22 of the January

30, 2014 Opinion and Order) "what is our alternative". ~rn fact,

we are now of the view that an alternative is necessary.

As this opinion developed, it became clear that the

Mother's household is favored over the Father's for reasons of

stability and continuity. This view, however, is not based on

the stability and continuity within either household. Rather,

it has to do with A,111,::S.'~ success to this point in the Tyrone

School District and the risk of changing what has been a

successful formula for him. To take such a risk, we would have

to be satisfied there were substantial reasons for doing so.

Simply put, in his presentation in terms of primary custody, the

Father has failed to convince us relative to this issue that, in

fact, his household is superior to the Mother's.

19
 We have now held the hearing which we discussed in our

earlier Opinion of January 3 o, 2014 ( at .p~ge 2 4) wh-ere we would

emphasize "the comparative strengths and weaknesses of each

householdu to determine any potential superiority. In fact, at

this juncture we believe neither of the households has been

established as sufficiently superior to justify finding an award

of custody based on this factor one way or the other. In fact,

---- ·------·- ----aet-h---,--,---(-i-nc-:-ca·na,-,---eJ-,-t-Jaemse,1-ves ) are st ab 1 e , 1 ovi-ng, --GGns-i-s-t-e-nt;,-,--,,-a-nG.-------,c---

nurturing environments. As a result, this factor is not a basis

to determine the issue of primary residential custody one way or

the other.

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

As we opined at the time of our earlier opinion of January

2014, everything we have said on the preceding factor would

apply with this factor as well.

11) The proximity of the residences of the parties.

This strength in the case, of course, no longer exists with

the Father's move to Altoona. In fact, there would be changes

in A.~.~~ ; school district, activity structure, and social

network which would inevitably result from placing A.I"\.~. with

his Father. Simply put, we would have to have substantial

reasons to make this change.

, 20
 12) Each parent:.' s a:bility to care for the child or abil_ity
to make appropriate child-care arrangements.

This is not an especially important issue in this case. As

we observed previously, both parents have the ability to care

for ~ A../11\, ~. and make considerable sacrifices to do so. We have a

positive view of both parent's ability to make appropriate child

care arrangements when those are required.

13) The level of conflict between the parties and the
---,-.-,---c_c,_,w-i-:--1-l-,---i-ng-ness and al>i:l_:i,t:.:Y--Of the parties to co:9_p,E!_,;:',a,t_E!=wLt!:i,,P~.e:--c_-,- _
another. A party's effort to protect a child from abuse by
another party is n6t evidence of unwillingness or inability to
cooperate with that party.

The level of conflict in this case is, of course, a primary

issue. In fact, the communication problems and control issues

have reached the point in our judgment where the fifty-fifty

relationship should not continue and, in fact, we should

designate one of the parents as the primary residential

custodian.

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

This is not an issue in the case.

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

This is not an issue in the case.

CONCLUSION

Having concluded our di$cussion of the statutory factors,

it seems clear based on our conclusions that the primary

21
.................. --------- .. 2_. __The __ r_esidential custcdy of the mi.nor' child sha1l_be

-w-ith the Mother, with the Father having periods of

partial custody as follows:

a. During the school year, A.M.~. shall be with the

Father on an every other weekend basis from

Friday after school (or sports if he is

practic_ing that day) until Sunday at 7:00 p.m.

-------------,--------_-_ ~--- --·---,----:::-==-b-_,--_-Dll-:r;...ing the summer, -A,M,";,, aha.Ll }:le,-,-with.,...his

parents on the same week on/week off basis

existing presently with Sunday transfers. This

schedule shall commence the first Sunday after

school ends at 5:00 p.m. until 5:00 p.m. the

following Sunday and with this alternating

schedule ending timed so that A,l'l.,