J-A21045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.D.S.,                                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

R.J.S.,

                            Appellant             No. 648 EDA 2014


               Appeal from the Order Entered January 30, 2014
             In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2003-19168

BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED AUGUST 11, 2014

       R.J.S. (Mother) appeals from the order of January 30, 2014,1 which

transferred primary physical custody of S.S. (Child) from Mother to L.D.S.



                                               as moot; vacate the January 30,

2014 order; and remand for the entry of a custody order consistent with this

memorandum.

       Mother and Father married in September 1997, Child was born in

August 1998, and Mother and Father were divorced by decree entered in

November 2000.         At all times since the divorce, the parties have shared
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The order is dated January 29, but was not filed until January 30, 2014.
We have amended the caption accordingly.
J-A21045-14


legal custody of Child, and Mother has had primary physical custody of Child

in Montgomery County, Pennsylvania.          Father has resided in Alexandria,

Virginia, where he now lives with his wife (Stepmother), their two children




Child, as well as his exercise of that custody, are issues that the parties have

litigated in Montgomery County, by petitions to modify custody and for

contempt, since 2003.



schedule in Virginia included one scheduled weekend each month during the

school y



Father alternated major holidays from year to year. The September 2012

custody order also provided that Father and



      However, Child spent only a fraction of the scheduled time with Father,

and the ordered counseling neither commenced immediately nor occurred

with regularity or frequency.      The trial court summarized the resultant

continuation of the litigation as follows.


      requesting the visits between Father and [C]hild occur in

      Cont




                                      -2-
J-A21045-14



      fi



      of a Guar

      hearings] on the outstanding petitions on October 24, 2013 and
      January 14, 201[4]. On January 29, 2014, the [trial court]
      entered a custod
      reasoning behind the custody order) which kept the shared legal
      custody provision intact but [following the end of the school
      year,] awarded primary physical custody to Father subject to
                           cal custody for eight weeks in the summer,
      one weekend per month and five additional custody weekends
      that could be used any time during the year. The trial court also
      ordered Father and [C]hild to undergo counseling immediately
      and intensive counseling in the summer of 2014.

Trial Court Opinion, 3/24/2014, at 1-2.

      Mother timely filed a notice of appeal and a concise statement of

maters complained of on appeal on February 27, 2014, and the trial court

filed its opinion on March 24, 2014.

      Mother states the following questions for our review.

            1.    Did the trial court abuse its discretion and commit an


      favor on factors [3, 4, 9, and 10 of 23 Pa.C.S. § 5328(a)], when
      the same court, by custody order of September 5, 2012, found


            2.    Did the trial court abuse its discretion and commit an
      error of law in analyzing factors [1, 8, 13, and 16 of subsection
      5328(a)], and in its ultimate conclusion?

            3.
      physical custody to Father the result of partiality, prejudice, bias
      and ill will against Mother and the minor Child and in favor of
      Father?

                                       -3-
J-A21045-14



            4.    Did the trial court abuse its discretion and commit an

      with Mother was not well-reasoned?

                     -2 (suggested answers and unnecessary capitalization

omitted).

                           questions on appeal collectively, it is clear that she

is arguing that proper application of the statutory factors requires a



physical custody.     Thus, rather than examine each of her questions



that led it to the opposite conclusion to determine whether it committed an

error of law or abuse of discretion.

      Our standard of review of custody determinations is as follows.

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion.          We must accept
      findings of the trial court that are supported by competent
      evidence of record, as our role does not include making
      independent factual determinations. In addition, with regard to
      issues of credibility and weight of the evidence, we must defer to
      the presiding trial judge who viewed and assessed the witnesses
      first-hand. However, we are not bound by the trial court's
      deductions or inferences from its factual findings. Ultimately,
      the test is whether the trial court's conclusions are unreasonable
      as shown by the evidence of record.            We may reject the
      conclusions of the trial court only if they involve an error of law,
      or are unreasonable in light of the sustainable findings of the
      trial court.

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (quoting Durning v.

Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa. Super. 2011)).



                                       -4-
J-A21045-14




the best-interests analysis, a trial court is required to consider the factors

set forth at 23 Pa.C.S. § 5328(a). See E.D. v. M.P., 33 A.3d 73, 80 (Pa.




      The section 5328(a) custody 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

            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)
            education, family life and community life.

      (5)   The availability of extended family.

      (6)                                ps.

      (7)   The well-reasoned preference of the child, based on the


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


                                     -5-
J-A21045-14


       (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)
              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 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


       (15) The mental and physical condition of a party or member of


       (16) Any other relevant factor.

23 Pa.C.S. § 5328(a).



the factors challenged by Mother on appeal,2 it appears that little has

____________________________________________


2
 The only factor not challenged by Mother on appeal which favors one party
                                                               is that, where
possible, siblings should be raised together absent compelling reasons to do
               L.F.F. v. P.R.F., 828 A.2d 1148, 1152 (Pa. Super. 2003)

Gancas v. Schultz
policy is a consideration in, rather than a determinant of, custody
                L.F.F.
(Footnote Continued Next Page)


                                           -6-
J-A21045-14


changed factually.       Rather, the lack of improvement in the compliance of

Mother and Child with the custody orders led the trial court to conclude that

a new custody arrangement was necessary to force Child to have a

relationship with Father.



and continuity in education, family life, and community life.   In 2012, the

trial court emphasized the importance of this factor:


      which [the trial c]ourt hopes to provide with this custody order.
                                                        both parties to
      cooperate and enforce the order. [Child] has been enrolled in
      the Lower Merion school system for the majority of his school
      years. He has numerous friends, hopes to enroll in TSA or the
      Science Olympiad and therefore the [trial c]ourt is hesitant to
      remove him from this school system. Furthermore, [Child] has
      an IEP and is vested with the school system.

Order, 9/6/2012, at 4 (emphasis in original).        In 2014, the trial court

acknowledged that factor 4 continued to weigh heavily in favor of

maintaining primary physical custody with Mother, but concluded that it was



             The [trial c]ourt acknowledges the need for stability and

      Mother testified that while [Child] was initially diagnosed on the
                       _______________________
(Footnote Continued)

Virginia with Father. Father testified that Stepsiblings adore Child, and that
Child has a good relationship with them. Child testified that there is not

10/24/2013, at 120, who are both significantly younger than Child and have
never lived with Child full-time. Nonetheless, we note that this factor weighs
in favor of Father.



                                            -7-
J-A21045-14


     autism spectrum, she has worked hard as his educational
     advocate over the years and was successful in mainstreaming
     him into regular classes. [Child] has been enrolled in the Lower
     Merion school system for the majority of his school years, has an
     IEP, and achieves excellent grades. Mother testified that [Child]
     has significant extracurricular involvement to create ties to the
     community including weekend cleanups, working the polls on
     Election Day, and tutoring younger children. Father disagreed
     with this assertion and maintained that [Child] only recently
     began participating in some of these activities. Father presented
     testimony of the school district where he lives as well as the
     many extracurricular activities that are available for [Child].
     While the [trial c]ourt understands that [Child] has always lived
     in Pennsylvani

     significance of the father-son relationship, which is not being
     fostered in the present environment.

Findings of Fact, 1/30/2014, at 4.

     In deny

2012, the trial court stated as follows regarding factor 1 (which party is

more likely to encourage frequent and continuing contact between Child and

the other parent).

           Father testified that, if given primary physical custody, he
     would cooperate with Mother as it is his belief that the primary
     custodial parent has to be cooperative with the non-custodial
     parent to foster a relationship. While the [trial c]ourt was
     concerned about how, during trial, Mother was unable to put
                                                 -custodial parent and
     consequently unwilling to give Father more custodial time; the
     subsequent emails submitted to the [trial c]ourt demonstrated
     that Mother was willing to ensure Father received his summer
     custodial visitation.

Order, 9/6/2012, at 3.      In 2014, the trial court offered the following



frustration with Mother and Child.

                                     -8-
J-A21045-14


                                             that Father would be more
       likely to encourage and permit frequent and continuing contact
       between [Child] and Mother. Father testified that, if given
       primary custody, he would ensure that [Child] maintained
       contact with Mother. The [trial c]ourt did not find Mother
       credible when she testified that she has encouraged [Child] to
       visit Father in Virginia. [Child] consistently has not abided by

       weekend time with Father. For example, [Child] did not attend
       his summer custodial period with Father in 2012, and in 2013,
       after an emergency conference where [the trial c]ourt ordered
       [Child] to go to Virginia for three weeks, he still refused.
       Despite these blatant violations, Mother has not punished [Child]
       for his behavior, which leads [the trial c]ourt to believe that she
       does not believe his conduct is a problem. Moreover, according
                                            OurFamilyWizard[3] calendar
       with activities, trips and appointments that thwart his custodial
       time.

              Rather,    Mother    consistently   files   petitions    to   modify

       though the judges of this Commonwealth have emphasized the

       excuses for [Child] as to why he cannot spend the requisite time
       with Father (for example, activities, trips, etc.). At the January
       14, 2014 hearing date, Mother testified that she would like a

       shortened to six weeks (no longer than one or two weeks at a

       Mother also testified that she believes it is preferable if Father
       travels to Philadelphia for his custodial time even though Father
       is remarried with two young children and has a full-time dental
       practice where he is on call at the hospital for dental related
       traumas.


       custodial rights has been an ongoing problem.                  In the [trial
____________________________________________


3
                                  -based website which is designed as a
medium for divorced or separated parents to communicate and manage
issues regardi                    Wilcoxon v. Moller, 132 So.3d 281,
284 n.1 (Fla. App. 2014).



                                           -9-
J-A21045-14



     Mother imposed no consequences on [Child] for his defiance of
     authority and advised her to adopt structure and disciplinary
     techniques. That has not occurred. Instead, [Child] continued
     to violate [the

     [Child].

Findings of Fact, 1/30/2014, at 2-3 (footnotes omitted).

     Factor 7 considers the well-reasoned preference of Child.            Child

indicated both in 2012 and in 2014 that he preferred to remain with Mother.



           The [trial c]ourt interviewed [Child] on July 24, 2012 and
     found him to be mature with good judgment. To protect the
     confidentiality of this communication, the [trial c]ourt will not
     reveal all the details but will state that [Child] relayed that
     Mother does encourage him to spend time with Father and that
     she has tried everything to make him comply. However, [Child]
     revealed that his disinterest [sic] in spending time with Father

     family which make him uncomfortable and that [Stepmother]
     and Father speak derogatorily about Mother and her family. It
     appears that [Stepmother] has a derogatory nickname for
     Mother that upsets him. [Child] feels that the questions Father
     asks are not sincere but are geared toward the custody battles.
     [Child] agreed to return to Virginia to make an attempt to work
     out his differences with Father. On or about August 3, 2012,

     concerns, and the parties are directed to set up counseling with
     Father and [Child].

Order, 9/6/2012, at 4-5.    However, in 2014, the trial court changed its



           Most recently, [Child] testified before the [trial c]ourt on
     October 24, 2013 and January 14, 2014. On January 13, 2014,
     [Child] stated that he did not want the custodial schedule to
     change.    However, the [trial c]ourt did not conclude that
                                   -reasoned. For example, at the

                                   - 10 -
J-A21045-14


       October     24,   2013     hearing      [Child]   testified   that   Father

       of any incidents, [Child] testified that father told him to go to his
       room and stay there. During spring break [in] 2013, [Child]

       even though Father was not home at the time that the police
                                                                        ed
       that he has not spent any time with Father and that Father is not
       nice to him. The [trial c]ourt did not find [Child] credible as the

       tainted and [Child] has a tendency to exaggerate incidents.

Findings of Fact, 1/30/2014, at 5 (footnote omitted).

       Pursuant to factor 8, the trial court is to consider the attempts of a

parent to turn Child against the other parent. In 2012, the trial court found

that

       both parents may engage in that type of behavior to some
       degree. As already discussed, [Child] testified to the derogatory
       comments made by Father and his family. However the [trial
       c]ourt was concerned about the story relayed by Lisette Parks[4]
       where [Child] allegedly stated that Mother did not want him to
       speak to Lisette who has an obvious love and affection for
       [Child] and cherished her relationship with him. Furthermore,
       the [trial c]ourt finds the chain of emails, as to which parent is
       actually using [Child] to obtain information, is also despicable.

Order, 9/6/2012, at 5. The trial court offered the following analysis of factor

8 in 2014.

             The [trial court] is concerned that Mother fosters and/or is
       content with an atmosphere that relegates Father to a lesser
       status in the eyes of [Child]. While both parties claim not to
       make derogatory comments about the other parent in the
       presence of [Child]; [Child] testified that father and his family
____________________________________________


4
 It is unclear to this Court who Lisette Parks is. It appears that she might
be a relative of Stepmother.



                                          - 11 -
J-A21045-14


     make derogatory comments about Mother and call her names in
     Spanish. While Father did acknowledge that some comments
     were made about Mother; the [trial c]ourt did not find that the
     comments were outrageous or ongoing. Although there is no
     evidence that Mother is openly degrading Father to [Child]; as
     discussed in detail in 23 Pa.C.S. §

     violations of the custody orders has enabled [Child] to refuse to

     visits.

Findings of Fact, 1/30/2014, at 5.

     Factor 9 requires the trial court to weigh which party is more likely to

maintain a loving, stable, consistent and nurturing relationship with Child



requires the court to determine which parent is more likely to attend to the

daily physical, emotional, developmental, educational, and special needs of

Child. In 2012, the trial court offered the following discussion of factors 9

and 10.

     It was evident to the [trial c]ourt that both parties love [Child]
     and either would maintain the relationship appropriate for his

     rigidity and need to make points. This became evident through
     his testimony, emails and conversations. Father needs to be
     cognizant that [Child] is now a teenager with his own ideas,
     needs and opinions and the [trial c]ourt is hopeful that
     counseling will help Father and [Child] develop the means for a
     healthier and more mutually acceptable mode of communication.

                                     ***

           As noted above, it was evident to the [trial c]ourt that both
     parties love [Child] and either would maintain the relationship

     the [trial c]ourt finds that Mother would be more likely and able
     to attend the physical[,] emotional and educational needs of

                                     - 12 -
J-A21045-14


      [Child]. [Child] has always lived with Mother and attended the
      same school district. [Child] really likes his school and is excited
      about the new school year. There was no testimony presented

      tended to and Mother appears to have the time and ability to be
      available for [Child].

Order, 9/6/2012, at 5-6. The testimony offered at the hearings leading up



through with the court-ordered counseling, and his relationship with Child

had deteriorated.    Nonetheless, the trial court analyzed factors 9 and 10

quite differently in 2014.

            Both parties are capable of maintaining a loving and
      nurturing relationship with [Child]; however, Mother must realize

      with Father. Father testified to his belief that [Child] is under a
      great deal of pressure to make Mother happy. For example,
      Father testified that [Child] will not let Father take pictures of
      him having a good time in Virginia.


      Father, his persistence in not spending time with him and the
      vastly different stories that are told by Father and [Child]. For
      example, Father testified to the loving relationship between his
      Virginia family and [Child] and the great time everyone had on
      Thanksgiving. When [Child] testified, he indicated that he did
      not feel close to his half-siblings and he begged his aunt and
      uncle to let him go home with them. At this point, without
      substantial counseling, the [trial c]ourt has concerns about
      whether Father can solely repair the relationship with [Child]. If
      Father is willing and committed to engage in serious and
      meaningful therapy with [Child] (which he says that he is), [the
      trial court] believe[s] that father would be able to institute the
      structure necessary to maintain a more stable and consistent
      relationship for [Child].

                                     ***




                                     - 13 -
J-A21045-14




       [Child] in 2007 and mainstreaming him thereafter. Father
       attends the yearly IEP meetings by phone.     As primary

       developmental and special needs (regarding schooling);
       however, the [trial court] believes that Father is also capable of
       attending to these needs if [Child] is in his primary custody.



       conclusio

       have contact with both parents.

Findings of Fact, 1/30/2014, at 5-6.

       The level of conflict and cooperation between the parents is the focus

of factor 13.      Again, nothing appears to have changed over the years

regarding this factor. The trial court noted the high degree of conflict and

lack of cooperation both in 2012 and in 2014.

              Testimony revealed that there is a great level of conflict
       between the parties and their unwillingness and inability to
       cooperate with one another. The parties are both obviously
       intelligent and bear considerable anger against each other. It
       was very apparent that their respective strong wills make[] it
       nearly impossible to encourage co-parenting strategies.
       Furthermore, the [trial c]ourt noticed an underlying difference in
       the ideologies the parties have for parenting [Child]. At one

       struc
       defying authority (for example, for reading legal mail or for not
       attending custodial visitation with Father), Mother had no

       punishments.[5] As [Child] is now a teenager and entering high
____________________________________________


5
  This appears to be overstatement by the trial court. Child is a straight-A
student and is active in the community. There is nothing in the record
(Footnote Continued Next Page)


                                          - 14 -
J-A21045-14


      school, Mother will need to provide more structure to ensure that
      [Child] has the support he needs as he faces the challenges that

      inability to cooperate and provide a semblance of consistency in
      parenting [Child] is even more harmful to [Child].

Order, 9/6/2012, at 6-7.

             There is a high level of conflict and a seemingly
      nonexistent level of cooperation between the parties.            In
      actuality, this case ranks as one of the highest conflict cases the
      [trial court] has ever presided over. The case was originally filed
      in 2003 and, including the [trial court], there have been seven
      judges who have presided over this matter.

           The parties do not communicate over the telephone, rather
      they only communicate via text or email. Father restricted

      for her use; however, Father testified that he only checks that
      email address every two to three days. Father also testified that
      he does not regularly check the OurFamilyWizard program,
      which was ordered as of September 5, 2012. Father seemingly

      then readily admits he does not consistently track any of the
      avenues of communication. Mother, on the other hand, assumes
      that Father should be aware of certain events by virtue of the
      fact that the event is plugged into the OurFamilyWizard
      calendar. Mother must realize that even if she inputs an event

      separate email requesting that Father relinquish his custody

      Merely inputting the event into OurFamilyWizard
      custodial time does not mean that Father has agreed to the
      event.

            The parties blame each other for the conflict and neither
      can see his or her contribution to the problems. For example,
      while Mother complies with the order to communicate and uses
                       _______________________
(Footnote Continued)

related to the instant appeal that suggests that Child has misbehaved, and
thus warranted punishment, in any way unrelated to his refusal to spend
time with Father.



                                           - 15 -
J-A21045-14


      OurFamilyWizard
      complains that he does not receive information but rarely checks
      his email or the OurFamilyWizard calendar
      communication has caused negative consequences such as
      misunderstandings with train schedules and ongoing problems
      with custody schedules.

Findings of Fact, 1/30/2014, at 7.

      Factor 16 allows the trial court to expound on any other factor it finds



includes no discussion under factor 16. In 2014, the trial court offered the

following.



      first order issued by the [trial court], dated April 25, 2012,
      directed Father and [Child] to attend joint counseling. Pursuant
      to this order, the parties were to submit the names of counselors
      and agree on a therapist. The [trial c]ourt agreed to make
      several concessions to Father (such as scheduling at the end of
      the day, finding a therapist close to the train and/or allowing
      Skype sessions) considering the fact that Father was traveling
      from Virginia. After the counselor was changed (for a variety of
      reasons), on September 21, 2012, [the trial c]ourt ordered
      Father and [Child] to commence therapy with Dr. Talia
      Eisenstein. Unfortunately, the therapy did not commence until
      late January 2013 and subsequently broke down.13 From August
      through September, the [trial court] entered an additional order
      directing Father to commence counseling. Despite these orders,
      Father apparently attended only one session in November.
      However, Father produced several emails from November
      through January showing several attempts on his part to
      schedule both in person and Skype sessions with Dr. Eisenstein.

      schedule and lack of availability.
           _____
           13
              Dr. Eisenstein submitted a written report to the [trial
           court] on April 17, 2013 citing various difficulties with the

             Philadelphia for sessions and the ineffectiveness of Skype

                                     - 16 -
J-A21045-14


               sessions. Dr. Eisenstein noted that she did not believe she
               could effectively provide therapy under the circumstances.

                Father testified that he believes the therapy (with Dr.
         Eisenstein) is being used as a club to interfere [with] and
         sabotage his custody. He testified that when he tries to discuss
         issues with [Child], he is told by [Child] that they have to wait to
         discuss it in therapy. He felt that the therapy was not helpful
         because it is being used to thwart and delay custody since [the
         trial c]ourt stressed the need for both father and son to attend.
         The [trial c]ourt agrees with Father that the therapy (or lack
         thereof) is being used, to some degree, as an excuse for

         c]ourt believes that a stringent course of therapy is required for
         Father to repair the father-son relationship. If Father does not

         intensive therapy, the [trial c]ourt will consider vacating its order
         and reinstating the previous order.

Findings of Fact, 1/30/2014, at 8-9.




                                                                   conclusions are

unreasonable under the circumstances of this case, and ultimately the trial

court abused its discretion in awarding Father primary physical custody of

Child.

         As noted, the facts have not changed much between the 2012 and

2014 orders.      Chi

aspects other than his refusal to spend time with Father. Mother still does




                                        - 17 -
J-A21045-14


Virginia. Father still has not attended more than sporadically the counseling

with Child that the trial court has ordered repeatedly,6 and does not check

his email or OurFamilyWizard

schooling and activities.

                                                     the custody factors, what



failure of Mother and Child7 to obey its prior custody orders. It appears that

____________________________________________


6
  The trial court ordered counseling to begin by order entered in May 2012.
Other orders requiring Father to participate in weekly counseling were
entered in 2012 and 2013. According to Mother, Father attended exactly
two sessions. The testimony is unclear whether this number includes all
sessions with all counselors over the entire time counseling was ordered.
However, Father admitted to attending only two sessions in the thirteen
months prior to the October 2013 hearing. If Father had participated in
weekly counseling, he would have attended at least four sessions each
month for twenty months.
7
    For example, the trial court had the following exchange with Child.

              [Trial Court]:
        child who is just not obeying my orders. And I have worked with

        done everything you wanted me to do.       Everything you asked

        agreement, kind of a contract, that I was going to give you the
        safety measures that you needed and you were going to

        the bargain at all. So you tell me what we need to do to make
        you comply with these orders.

                                          ***
              If you were an a

        want to do that.
(Footnote Continued Next Page)


                                          - 18 -
J-A21045-14


                                                                                  s

decision to place Child with Father. See, e.g., Findings of Fact, 1/30/2014,




                                           r may be an appropriate foundation for a



Clapper v. Harvey, 716 A.2d 1271, 1275 (Pa. Super. 1998). Rather, such

                                                                             ent so

obstructs the visits between the child and the non-custodial parent that the

                                                                English, 469 A.2d

at 273 (quoting Pamela J.K. v. Roger D.J., 419 A.2d 1301, 1309 (Pa.

Super. 1980)).

                       _______________________
(Footnote Continued)


             [Child]:        Am I allowed to be put in jail?

            [Trial court]:
      can assure you, I would never do that to you, okay, but at some
      point you have to start cooperating with me.

N.T., 10/24/2013, at 147, 150.




                                           - 19 -
J-A21045-14


       Here, Mother pleaded with Child to spend the ordered time with

Father.    Her error was declining to punish or otherwise coerce Child to go

when Child refused.       The trial court has the power to sanction Mother for

                                                      he custody orders. The

proper question for custody modification, however, is what custody




best interests.



remain with Mother as not well-reasoned.

             The weight to be accorded a child's preference varies with
       the age, maturity and intelligence of that child, together with the
       reasons given for the preference. Moreover, as children grow
       older, more weight must be given to the preference of the child.
       As this Court has recently reaffirmed, where the households of
       both parents were equally suitable, a child's preference to live
       with one parent could not but tip the evidentiary scale in favor of
       that parent.

B.C.S. v. J.A.S., 994 A.2d 600, 604 (Pa. Super. 2010) (quoting Wheeler v.

Mazur, 793 A.2d 929, 937-38 (Pa. Super. 2002)).8




____________________________________________


8
    It has been said that a child of 16 or 17 is like an elephant - he sleeps

have to recognize the limitations of their power in determining where older
teenagers must reside.




                                          - 20 -
J-A21045-14


                                                                  incidents with

Father is supported by the record.9 However, Father admitted to such things

as yelling at Child so loudly that Child called the police, N.T., 1/14/2014, at

98; asking a police officer who showed up one of the times Child called to

arrest Child for assault because he thought having Child arrested was in



held in contempt and adjudicated delinquent, N.T., 10/24/2013, at 44-45;

and threatening to send Child to military school, N.T., 1/14/2014, at 41.

Thus, Child is not imagining that there is conflict.

       Further, the trial court ignored other reasons Child offered for not

wanting to move to Virginia:


       here, everything I worked for, my family loves me up here,
       everything, everything I do, my school, my life. And if you just
       take that away from me and you move me down there, there

       friends.   My dad, I


N.T., 1/14/2014, at 268.10          Given that Child is a teenager, preparing to

begin his junior year of high school, and he spoke of issues which are not

____________________________________________


9

10/24/2013, at 115.        Upon further questioning, Child indicated that what

         Id.
10
  Child has an expressive language disorder. See, e.g., N.T., 1/14/2014, at
278. Although he wished to read a statement that he had written at the
(Footnote Continued Next Page)


                                          - 21 -
J-A21045-14


only reasonable, but expected for a child his age, his preference deserves

consideration.

        Next, the trial court strongly emphasized the importance of counselling




10/24/2013, at 151. Indeed, it went so far as to conclude that Father was



Findings of Fact, 1/30/2014, at 6.

        Yet, as noted above, see note 6, supra, Father has spent two years

disobeying orders to participate in counseling. He testified in October 2013

that he does not believe that having participated in the ordered counseling

would have made any difference to his relationship with Child.        See N.T.,

10/24/2013, at 43; id. at 44 (stating that one hour a week is not going to

change anything; it would not be any different than no counseling at all).



just coming down to live with you is going to change the entire relationship

                                                    Id. at 44.11

                       _______________________
(Footnote Continued)

suggestion of Dr. Eisenstein, the trial court would not allow it.          N.T.,
1/14/2014, at 272.
11
     Father also testified that he wants Child to move to Virginia because Child


           Id. at 236.     The testimony bears out the trial co
(Footnote Continued Next Page)


                                           - 22 -
J-A21045-14


belief that Father suddenly will comply with orders to attend counseling, and

its decision to predicate a change of custody on that belief, is unreasonable

                       -standing antipathy.




emotional needs is unsupportable.                Father has to develop a loving and

nurturing relationship with Child before he can maintain one. Although the



exaggerated or unwarranted, it is unquestioned that Child is emotionally

distraught about his interactions with Father. At times, Father appears to be

oblivious to the effect his actions have on Child:

      You know, that night which you speak of that, you know, I raised
      my voice at him I thought I connected, I got through and, you

      our nails done. We ate dinner. I said good night. He would go

      and the police are at my house.

N.T., 1/14/2014, at 98.

              Id. at 263. Forcing Child to live with Father primarily, without

Father having participated in the ordered counseling to work on their

communication issues, is almost certain to traumatize Child emotionally.


                       _______________________
(Footnote Continued)


focus being on structure and discipline.




                                           - 23 -
J-A21045-14




However, the trial court wen

Mother and Father to work together with the Virginia school system to



                      Id.                                           pon Mother

and Father being able to cooperate simply cannot be justified in light of the



conflict and a seemingly nonexistent level of cooperation between the

          Id. at 7.




enjoyed   in   a   long-standing   custody     arrangement,   and   the   happy

relationships a child has developed with a parental figure and others may be

                                              E.A.L. v. L.J.W., 662 A.2d 1109,

1117 (Pa. Super. 1995). See also K.L.H. v. G.D.H., 464 A.2d 1368, 1373




                                   E.A.L., 662 A.2d at 1117 (quoting English


                                     - 24 -
J-A21045-14


v. English, 469 A.2d 270, 273 (Pa. Super. 1983)).       See also Masser v.

Miller, 913 A.2d 912, 921 (Pa. Super. 2006) (quoting Johns v. Cioci, 865



benefits of continuity and stability in custody arrangements and to the

possibility of harm arising from disruption of longstanding patterns of



      In the instant case, there is no discussion by the trial court about the

possibility of harm to Child in uprooting him from the care pattern he has

known his entire life and sending him, against his will, to live with Father.

Even Father acknowledged that moving Child to Virgin



that Child would be taken away from his school and his friends his junior

year of high school, and placed in a home that he has spent two years trying

to avoid, or, when he is there, seeking any means of leaving as soon as

possible.

      We do not minimize the benefit and importance of Child establishing

and maintaining a healthy relationship with Father. Nor do we discount the

harm that Mother has allowed to o

relationship with Father. If she does not improve in this regard, a finding of

contempt and sanctions against her could be appropriate. Nonetheless, with

                                                               eractions with




                                    - 25 -
J-A21045-14




Mother during the school year.             In all respects other than his relationship

with     Father,   Child   is   thriving    in   his   environment   in   Pennsylvania.

Accordingly, consistent with this memorandum, we remand this case for

entry of a new custody order granting primary physical custody to Mother.12

In the meantime, the provisions of the September 2012 custody order shall

apply.

       Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2014




____________________________________________


12
     Because we file this memorandum prior to the beginning of the school
                                                  or Stay.



                                            - 26 -
