J-S02007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
E.J. f/k/a/ E.F. :
:
Appellant : No. 1524 MDA 2019
Appeal from the Order Entered August 21, 2019
In the Court of Common Pleas of Franklin County Civil Division at No(s):
2015-3589
BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 11, 2020
E.J. f/k/a E.F. (Mother) appeals from the custody order entered August
21, 2019, that awarded Mother and B.F. (Father) shared legal custody of A.F.
(born in October of 2013) (Child). The August 21st order also awarded primary
physical custody of Child during the school year to Father, with partial physical
custody to Mother. During the summer months, the parties were awarded
physical custody of Child on alternating weeks. After review, we affirm.
The relevant scope and standard of review in custody matters 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
J-S02007-20
interfere with those conclusions unless they are unreasonable in
view of the trial court’s factual findings; and thus, represent a
gross abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)
(quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super.
2001)). Moreover,
on 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.
R.M.G., Jr., supra at 1237 (internal citations omitted). The test
is whether the evidence of record supports the trial court’s
conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super.
2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014). Moreover, “when making
a custody award, ‘[t]he court shall delineate the reasons for its decision on
the record in open court or in a written opinion or order.’” M.J.M. v. M.L.G.,
63 A.3d 331, 335 (Pa. Super. 2013). The court also is required to consider
the factors contained in 23 Pa.C.S. § 5328(a) when awarding custody.
Mother raises the following issue for our review:
Did the Lower Court abuse its discretion and not consider the
child’s best interests by relying upon two factors as grounds to
change custody of a minor child who had been in the Mother’s
primary care since the parties’ separation?
Mother’s brief at 6.
-2-
J-S02007-20
Here, in its opinion, the trial court set forth a procedural history of the
case and provided facts within the context of responding to the custody factors
set forth in section 5328(a). In addressing the custody factors, the court
explained its reasons for issuing the August 21, 2019 order now on appeal.
Most notably, the court mentions the high conflict and contentiousness of this
custody case caused by Mother that has not lessened over the life of this
matter.
The main thrust of Mother’s argument is that the trial court relied heavily
on two of the factors, namely, factors (a)(1) and (a)(13),1 both of which it
found weighed heavily against Mother and noted that the other factors
generally were not weighted in favor of either party over the other. It is
apparent that Mother’s argument is essentially requesting that this Court re-
find facts and re-weigh the evidence. However, our standard of review
____________________________________________
1 The pertinent language of 23 Pa.C.S. § 5328(a) provides:
(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.
. . .
(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.
-3-
J-S02007-20
requires that we “accept findings of the trial court that are supported by
competent evidence of record, as our role does not include making
independent factual determinations.” C.R.F., III v. S.E.F., 45 A.3d 441, 443
(Pa. Super. 2012). Rather, 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.” E.D. v. M.P., 33 A.3d 73, 76 (Pa.
Super. 2011). We do not conclude that that is the situation here. The trial
court’s findings are based on competent evidence contained in the record and
its conclusions are not unreasonable.
We have reviewed the certified record, the parties’ briefs, the applicable
law, and the thorough, well-reasoned opinion authored by the Honorable Todd
M. Sponseller of the Court of Common Pleas of Franklin County, dated August
21, 2019. We conclude that Judge Sponseller’s opinion properly disposes of
the issue presented by Mother in this appeal. Accordingly, we adopt the trial
court’s opinion as our own and affirm the custody order on that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2020
-4-
Circulated 03/02/2020 12:46 PM
IN THE COURT OF COMMON PLEAS OF THE 39th JUDICIAL DISTRICT
OF PENNSYLVANIA- FRANKLIN COUNTY BRANCH
Plaintiff, Case Type: Civil Action - Custody
v. Case No.: 2015-3589
G,.t: (of
f/k/a Judge: Todd M. Sponseller
Defendant.
OPINION AND ORDER OF COURT
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Before Sponseller, J.
-
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IN THE COURT OF COMMON PLEAS OF THE 39th JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Brian Funk,
Plaintiff, Case Type: Civil Action - Custody
v. Case No.: 2015-3589
Emily Jenkins f/k/a Emily Funk, Judge: Todd M. Sponseller
Defendant.
OPINION
I. OVERVIEW
Before the Court is the matter of custody of A.F. ("Child"), age 5. The trial in this matter
75.P.
was held on July 25 and July 26, 2019, at whichflli•••("Father") was represented by
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Nathaniel F. Spang, Esq., and•••••f/k/a I § I., ("Mother") was represented by
James K. Reed, Esq. The Court heard testimony from multiple witnesses for both sides and
admitted numerous exhibits into evidence. Additionally, at the conclusion of the proceedings, the
Court allowed both parties to submit briefs to the Court drawing upon the best interest factors
found at 23 Pa. C.S.A § 5328(a). The Court finds that Father initiated this custody action
because Child has reached school age and the current custody Order is no longer feasible as the
parties live in different school districts. After considering the evidence, the relevant law and the
arguments of counsel, the Court finds that the best interests of A.F. would be served by allowing
Mother and Father to share legal custody of A.F. and by allowing Father to exercise primary
physical custody of Child with Mother exercising custody every other weekend during the school
year and for Mother to have alternating weekly periods of physical custody throughout the
summer. The Court's reasoning for this schedule is set forth in the Opinion below.
....._.
II. PROCEDURAL HISTORY
This matter has a long and highly litigated history involving multiple protection from
abuse matters filed in this Court as well as in Maryland, in addition to the current custody
litigation. For the purposes of clarity and concision, this Opinion will include only the procedural
history upon which the trial in this matter was predicated but will necessarily involve a
discussion of the surrounding protection from abuse petitions which have implicated custody.
On January 15, 2019, Father filed a Petition to Modify Custody. On January 23, 2019, this
Court entered an Order of Court and Directive for Conciliation, scheduling a conciliation
conference to take place on February 28, 2019. On March 8, 2019, Conciliator David Rahauser,
Esq. proposed his Conciliation Report to this Court, recommending no changes to the current
custody Order, as the parties could not agree to any modification. On March 11, 2019, Father
filed a motion requesting a Pre-Trial Conference, which this Court set for May 17, 2019. The
Court convened the pre-trial conference and set the trial date for July 25 and 26, 2019.
In May, 2019 the parties submitted pre-trial memoranda and exhibit lists. On July 25 and
26, 2019 the Court convened the trial in this matter. Throughout the trial, we heard testimony
from both of the parties, reviewed all relevant exhibits and evidence and reviewed the applicable
law. On August 16, 2019, the parties each submitted their post-trial memorandums. This matter
is now ripe for decision.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The law is clear that "the paramount concern in a child custody case is the best interest of
the child, based on a consideration of all factors that legitimately affect the child's physical,
intellectual, moral, and spiritual well-being and it can be made on a case-by-case basis." Staub v.
Staub, 960 A.2d 848, 853 (Pa. Super. 2008). The Court, when determining what is in the best
2
interests of the child, must consider all of the factors that have been codified at 23 Pa. C.S. §
5328 as well as all other relevant factors. See 23 Pa. C.S. § 5328(a). In making a custody
determination, the Court does not give preference to any party based on gender. See 23 Pa. C.S.
§ 5328(b).
1) Best Interests Analysis'
a) WHICH PARTY IS MORE LIKELY TO ENCOURAGE AND PERMIT FREQUENT AND CONTINUING
CONTACT BETWEEN THE CHILD AND ANOTHER PARTY?2
The Court finds that Mother's conduct is openly hostile toward Father. This Court heard
credible testimony that Mother attempted to thwart contact between the Child and Father on
several occasions. Specifically, Mother obtained a protection from abuse order against paternal
grandmother and grandfather, thereby providing a manufactured justification for withholding the
Child froin Father and paternal grandparents. The allegations which supported Mother's
protection from abuse petition were shown to be false during a subsequent contempt hearing
before this Court. Mother has also filed a protection from abuse action against Father in the State
of Maryland on December 17, 2018, which was also ultimately dismissed. During Mother's
cross-examination in the instant trial, she admitted to this pattern of conduct. On one occasion
wherein Mother filed for a protection from abuse against Father in this county, this Court did
enter a final protection Order. However, we note that it was entered into voluntarily by Father
and without an admission as to the allegations in the Petition. Based on her past conduct, we find
that Mother has employed the protection from abuse process both in the Commonwealth of
Pennsylvania and in the State of Maryland in her efforts to prevent Father from exercising
custody time with the Child.
1
23 Pa.C.S. § 5328(a).
� 23 Pa.C.S. § 5328(a)(l).
3
-
Additionally, Mother frequently contacts Father in a manner that hinders, rather than
helps, the collaborative effort between the parties in co-parenting A.F. Mother frequently
&.O:
includes•••-•�•••••••••), her current husband, in the communication
between her and Father, which proves to be detrimental to the relationship between the parties.
These communications are discussed in detail below. See section "n," infra.
During the trial, Mother took ownership of her conduct and claimed that she has changed
in a way that will allow her to cease participating in her aggressive conduct toward Father.
Whether Mother's claims are genuine or not remains unclear at present. However, after
reviewing the evidence and listening to the testimony of the parties we find that Father does not
reciprocate this behavior toward Mother. In fact, it appears that Father attempts to communicate
with Mother in a way that is straightforward and focuses on co-parenting the Child and relevant
issues relating thereto.
This Court realizes that Mother's communication with Father does not directly interfere
with the Child's ability to have frequent contact with Father. However, we also realize that
Mother's communication does not foster an environment whereby the Child is encouraged to
communicate with Father. We do find that Mother has used the judicial system to keep Father
and his family from seeing the Child. On the other hand, due to Father's lack of hostility toward
Mother, we find that Father is more likely to permit and encourage frequent contact between
Child and Mother. Therefore, this factor falls strongly in favor of Father.
b) THE PRESENT AND PAST ABUSE COtv!M!TIED BY A PARTY OR MEMBER OF THE PARTY'S
HOUSEHOLD, WHETHER THERE IS A CONTINUED RISK OF HARM TO THE CHILDREN OR AN
4
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\
ABUSED PARTY AND WHICH PARTY CAN BETIER PROVIDE ADEQUATE PHYSICAL
SAFEGUARDS AND SUPERVISION OF THE CHILD.3
The Court heard no evidence which supports a finding that either party is likely to be abusive
to the Child. Mother has made numerous allegations of abuse against Father and Father's
parents. We find those allegations to be non-credible and Mother's protection petitions to be
meritless and/or frivolous, if not fraudulent. Therefore, this factor does not fall in favor of either
party.
c) THE INFORMATION SET FORTH IN 5329. l(A) AND (2) (RELATING TO CONSIDERATION OF
CHILD ABUSE AND INVOLVEMENT WITH PROTECTIVE SERVICES).4
The Court heard no evidence that any abuse of the Child took place or that any agency has
had involvement with the parties regarding the care of A.F. Therefore, this factor does not fall in
favor of either party.
d) THE PARENTAL DUTIES PERFORMED BY EACH PARTY ON BEHALF OF THE CHILD.5
It is evident that both parties performed parental duties on behalf of the Child. The Court is
cognizant that, due to the fact that Mother has had more custodial time of the Child, she has
performed more of these duties. However, this Court finds that each party is able to adequately
care for the Child. Thus, this factor does not weigh in favor of either party.
e) THE NEED FOR STABILITY AND CONTINUITY IN THE CHILD'S EDUCATION, FAMILY LIFE, AND
6
COMMUNITY LIFE.
3
23 Pa.C.S. § 5328(a)(2).
4
23 Pa.C.S. § 5328(a)(2. I).
5
23 Pa.C.S. § 5328(a)(3).
6
23 Pa.CS. § 5328(a)(4).
5
It is clear to this Court that stability and continuity are positive attributes in any child's
life, including A.F. 's. The Court notes that both Mother and Father are stable in where they live.
Nonetheless, the parties do not live within the same school district or community.
Father lives in Greencastle, Pennsylvania and has lived here for the entirety of Child's
life. The Child is familiar with Father's home and the community where Father's home is
situated. If the Child were to live with Father she would attend the Shalom Christian Academy,
which is located near Father's home. Moreover, Father provided evidence and testimony that he
allows the Child to engage in community-based events and consistently encourages the Child to
become rooted within the Greencastle area. By reviewing Father's ability to provide stability for
the Child, the Court notes that Father satisfies this custody factor.
Similarly, Mother also has a stable life. Mother lives in Mount Airy, Maryland, as she has
for several years. The Child is also familiar with Mother's house and neighborhood. If the Child
were to live with Mother she would attend either Little Traveler's School or Lisbon Elementary
School. Like Father, Mother also allows the Child to participate in various community activities.
Mother fosters an environment of stability and continuity for the Child with regard to this factor
and satisfies it.
Based on the above discussion, this factor does fall in favor of either party.
f) THE AVAILABILITY OF EXTENDED FAMILY.7
This Court heard testimony that each party has extended family in the area. Therefore,
this factor does not fall in favor of either party.
g) THE CHILD'S SIBLING RELAT!ONSHIPS.8
7
23 Pa.C.S. § 5328(a)(5).
8
23 Pa.C.S. § 5328(a)(6).
6
A.F. has one half-sibling on Mother's side. The Child has no siblings on Father's side.
The Court is satisfied that the Child has a strong bond with her half-sibling. Based on the Child's
relationship with her half-brother on Mother's side, this factor slightly favors Mother.
h) THE WELL-REASONED PREFERENCES OF THE CHILD, BASED ON THE CHILD'S MATURITY AND
JUDGMENT.9
The Court did not interview the Child, due to her tender age. Therefore, the Court does
not consider this factor.
i) THE ATTEMPTS OF A PARENT TO TURN THE CHILD AGAINST THE OTHER PARENT, EXCEPT IN
CASES OF DOMESTIC VIOLENCE WHERE REASONABLE SAFETY MEASURES ARE NECESSARY TO
PROTECT THE CHILD FROM HARM. o
1
The Court heard evidence of a strained relationship between the parties. Specifically, the
Court finds that Mother has instigated this conduct and has now enlisted her current husband in
her harassing conduct, via repeated text messages. However, the evidence presented at trial did
not suggest that Mother or Father attempted to turn the Child against the other party. The Court
notes that Mother sent Father a video message of Child in an attempt to "guilt" Father into
changing his periods of custody of Child. In essence, the video message was comprised of the
Child asking Father to let the Child go to a birthday party with Mother, during Father's custodial
weekend. The Court does not consider this to weigh against Mother as an attempt to turn the
Child against Father. However, this is only because the Child is so young and is unlikely to
realize Mother's attempts at manipulation of Father. Therefore, the Court cautions Mother
against this pattern of conduct in the future, because it contributes to a hostile relationship
between the parties.
9
23 Pa.C.S. § 5328(a)(7).
10
23 Pa.C.S. § 532 8(a)(8).
7
''-- ...........
Barring the above-mentioned video message from Mother to Father, no evidence
presented at trial addressed the efforts of the parties to tum the Child against the other party.
Therefore, this factor does not weight in favor of either party.
j) WHICH PARTY IS MORE LIKELY TO MAINTAIN A LOVING, STABLE, CONSISTENT. AND
NURTURING RELATIONSHIP WITH THE CHILD ADEQUATE FOR THE CHILD'S EMOTIONAL
NEEDS.11
Each party provides a loving, stable, consistent and nurturing relationship for the Child.
Therefore, this factor does not weigh in favor of either party.
k) WHICH PARTY IS,MORE LIKELY TO ATTEND TO THE DAILY PHYSICAL. EMOTIONAL,
DEVELOPMENTAL. EDUCATIONAL, AND SPECIAL NEEDS OF THE CH!L0.12
Both of the parties have the ability and willingness to attend to the physical, emotional,
developmental, educational and special needs of the Child.
Mother has had more time, up to this point, to bond with the Child and provide for the
Child's needs. She testified credibly that she is able to provide for all of the Child's daily needs
and has done so for several years after the couple separated. This is further evidenced by
Mother's training and continuous work in the field of education, which undoubtedly helps
Mother navigate and assist A.F. in her daily goals and developmental benchmarks. Furthermore,
as discussed above, Mother has a stable environment for the Child and has a plan for where to
send the Child to school, if she were to maintain primary custody.
Father is also a very stable person. He is able to provide A.F. with all aspects of support
in her daily life. Father spends time and resources in planning outings with A.F. and has
researched the school where he would like A.F. to attend in the next school year. Father has a
11
23 Pa.C.S. § 5328(a)(9).
12
23 Pa.C.S. § 5328(a)( 10).
8
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stable job and owns the home where he lives and raises A.F. Therefore, this Court is confident
that Father can provide for all of A.F. 's needs from day-to-day.
The Court does not find that this factor favors either party.
1) THE PROXIMITY OF THE RESIDENCES OF THE PARTJES.13
The patties live about an hour apart. The Court has considered this factor in reaching its
decision.
m) EACH PARTY'S AVAILABILITY TO CARE FOR THE CHILD OR ABILITY TO MAKE APPROPRIATE
14
CHILD-CARE ARRANGEMENTS.
Based on the evidence presented during trial, it appears that each party has the ability to
appropriately ensure child-care arrangements for the child when such arrangements are
necessary. This factor does not weigh in favor of either party.
n) 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 lS NOT EVIDENCE OF UNWILLINGNESS OR INABILITY TO
COOPERATE WITH THAT PARTY.15
It is clear that a high level of conflict exists between the parties. At trial it was established
that Mother has utilized the domestic violence protection system in two states for waging the
instant custody war upon Father. Further, Mother involves her current spouse in her efforts at
sending degrading, harassing and offensive text messages to Father.
First, it was shown that Mother filed for protection from abuse petitions against Father
and his parents in both Maryland and Pennsylvania. One such petition was entered against Father
by stipulation and without admission. However, the other protection from abuse petitions were
13
23 Pa.C.S. § 5328(a)(1 I).
14
23 Pa.C.S. § 5328(a)( 12).
15
23 Pa.C.S. § 5328(a)(13).
9
dismissed as meritless. Mother continues to use the Protection Order in Franklin County as a
sword against Father, taunting him, being argumentative with him and threatening him with
contempt proceedings if he fails to comply with her demands. One specific demonstration of this
was when Mother went so far as to have contempt proceedings initiated against Father in
Maryland, only to fail to appear for the hearings and apparently abandoned her claims, after
Father spent money on legal representation and missed work for two separate court appearances.
We find that this misuse of a system that is meant to protect individuals sincerely in danger of
actual domestic violence and abusive behavior to be particularly repugnant and causes this factor
to weigh heavily against Mother.
Second, this Court heard testimony that Mother harasses Father via text messages
�.:;r,
wherein Mother and her husband,
�.I�·
, "double team" Father and criticize him about
various issues related to parenting A.F. In one text thread I lectured Father about the
meaning of "respect," implying that Father was not raising A.F. in a way that comported with
6,- . .:,.� mother
E] I · 5 parenting style, accused Father of lying to him and and told Father that Child "is
&.�
living under a · roof and will be raised [in a manner that comports therewith]." In a
different text message thread, Mother engaged Father in a discussion regarding the Child's
education but, when Father asked about why Mother was late for a custody exchange, Mother
threatened Father by stating "you need to stop bud[ ... because] you are dangerously close to a
G-,J.
PF A violation." In yet a different text message conversation, and Mother ask Father
about whether he bathed, fed and put Child to sleep for a nap. When Father did not answer,
G,,-. -:f.
••• claimed that he and Mother would "take [Father's] silence as a[ ... ] simple co-parenting
failure" and ranted on that the Child has "an odor" that Mother had to address when Mother
exercises her period of custody.
JO
The Court, having reviewed the above-mentioned evidence, finds that Mother's conduct
in this regard is reprehensible. As is customary, we reviewed the evidence in the instant matter
holistically, placing the communication between the parties in its original context. When doing
so, this Court finds that Father-despite being met with consistent opposition by Mother
regarding his care for the Child--
during her testimony at trial. This conduct is so one-sided that we are compelled commend
}.,
,,
Father's lack of hostility toward Mother, despite not b:ing offered the same decency in return.
As such, the Court finds that Mother's conduct troubling. Likewise, the Court finds that
�-� �
Mother's involvement of in her communication with Father to be troubling. This
G,.;T,
is so given the fact that¢( b · is not a named party to this custody dispute and, but for being
married to Mother, would not be involved in A.F's upbringing. Consequently, this Court has
taken the unusual but necessary step of ordering Mother to only contact Father alone, regarding
A.F. and not with or by any third party, including her husband. See the attached Order of Court.
We find that this factor weighs heavily in Father's favor and weighs heavily against Mother.
o) THE HISTORY OF DRUG OR ALCOHOL ABUSE OF A PARTY OR MEMBER OF A PARTY'S
16
HOUSEHOLD.
There was no evidence presented that Father or Mother or any members of either party's
household has a history of substance abuse. This factor does not weigh in favor of either party.
p) THE MENTAL AND PHYSICAL CONDITION OF A PARTY OR MEMBER OF A PARTY'S
17
HOUSEHOLD.
There was no evidence presented that Father or Mother• have physical ailments. Bothlt
parties appear to be in good health. This factor does not weigh in favor of either party.
16
23 Pa.C.S. § 5328(a)(l4).
17
23 Pa.C.S. § 5328(a)( 15).
11
\_
FACTOR.18
q) ANY OTHER RELEVANT
In making its determination, the Court considered all relevant factors that affect the
children's well-being.
IV. CONCLUSION
The Court finds that both parties have provided for all aspects of the health of A.F. This
is evidenced by the testimony and evidence at trial. It is evident that both parties care for the
Child and we are confident that the parties will continue to provide for the Child in the future.
However, the Court is also aware that an ongoing conflict exists between Mother and Father. The
Court, after reviewing the evidence in this matter, finds that the hostility comes from Mother
against Father. Nonetheless, the Court finds that Father meets Mother's hostility without
responding in kind and, instead, seems to maintain the mindset that the Child is the most
important party in this matter. The Court finds that Father's approach to his communication with
Mother demonstrates an overall positive mentality that will be helpful to the Child. An Order of
Court consistent with this Opinion follows.
18
23 Pa.C.S. § 5328(a)(l6).
12