J-A03011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 J.E.C., JR.                               :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
               v.                          :
                                           :
                                           :
 K.A.S.                                    :   No. 1566 MDA 2019

              Appeal from the Order Entered August 28, 2019
    In the Court of Common Pleas of York County Civil Division at No(s):
                           2018-FC-001498-03


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                 FILED: APRIL 14, 2020

      K.A.S. (Mother) appeals from the trial court’s order awarding primary

physical custody of the two youngest of the parties’ three children to J.E.C.,

Jr., (Father) subject to Mother’s right to partial physical custody. After careful

review of the parties’ briefs, relevant case law and the record on appeal, we

conclude the Honorable N. Christopher Menges has properly disposed of

Mother’s issues on appeal, as set forth in his Pa.R.A.P. 1925(a) opinion.

Therefore, we affirm the trial court’s order based on Judge Menges’ opinion.

      Mother and Father are the parents of three (3) minor sons, W.C., born

in November 2002 (age 17), N.C., born in November 2005 (age 14), and A.C.,

born in June 2008 (age 11). The parties separated in 2014. At that time,

they resided in Maryland.

      On June 2, 2017, the parties entered into a consent order in Maryland

granting the parties shared legal custody and granting Mother primary
J-A03011-20



physical custody of all three children, subject to Father’s partial custody rights.

Mother relocated to York County, and the order was transferred to York County

on or about July 25, 2018.        In 2018, Father relocated to Alabama.1

       On February 27, 2019, Father filed a “Petition for Modification and

Relocation and Contempt.”         In his petition, Father sought primary physical

custody of the parties’ two younger children, N.C. and A.C., citing concerns

pertaining to the children’s education and Mother’s inability to control the

children and assure their school attendance.

       Trial was held on August 16 and 21, 2019, during which both parties

testified at length concerning the children’s education, attendance records and

steps taken to rectify any problems they were having in school. The court

interviewed the three children during the course of the proceedings. All three

children expressed a clear preference to remain in York County with Mother.

N.T. Custody Trial, 8/16/19, at 122, 127, 145.

       Both parties agree the oldest son, W.C., should remain in York County,

as he is the expected valedictorian of his high school class. N.C. however,

was diagnosed with ADD/ADHD and had various problems in the first year of

middle school as well as with several teachers. N.C.’s school implemented a



____________________________________________


1 We note these the trial court’s Rule 1925(a) opinion states Father relocated
in 2016, which is a typographical error. At the hearing, Father testified that
he moved in 2018.




                                           -2-
J-A03011-20



5042 plan, which helped, but it took the bulk of the school year to resolve the

issues he had. Mother testified that N.C.’s difficulties had a trickle-down effect

that caused A.C. to be late for school or the children would miss school

altogether. Despite this, A.C. excelled academically and he was invited to

participate in an advanced math program for the coming school year. Id. at

73. During the trial, W.C. testified that he believed his brothers should remain

in Pennsylvania with Mother. Id. at 122.         Father testified to receiving text

messages, which Mother acknowledged, regarding N.C.’s violent behavior,

which Mother could not handle. Id. at 58; N.T. Custody Trial, 8/21/19, at 80-

81.

        The court entered an order on August 28, 2019, awarding the parties

joint legal custody. The order also awarded Father primary physical custody

of the two younger children, N.C. and A.C., subject to Mother’s rights of partial

physical custody. W.C. remained in Mother’s primary physical custody. Mother

filed this appeal. Both Mother and the trial court have complied with Rule

1925.
____________________________________________


2Section 504 of the Federal Rehabilitation Act of 1973, as amended, 29 U.S.C.
§ 794 (1985), covers qualified students with disabilities who attend schools
receiving federal financial assistance. To qualify for protection under Section
504, a student must be determined to: (1) have a physical or mental
impairment that substantially limits one or more major life activities; or (2)
have a record of such an impairment; or (3) be regarded as having such an
impairment.    Section 504 requires that school districts provide a free
appropriate public education (FAPE) to qualified students in their jurisdictions
who have a physical or mental impairment that substantially limits one or
more major life activities.



                                           -3-
J-A03011-20



      On appeal, Mother raises the following issues for our consideration:

         (1) The trial court erred as a matter of law and/or abused
         its discretion in separating the three (3) minor children in
         the absence of compelling circumstances warranting the
         separation of siblings, particularly as the three (3) children
         expressed a preference to remain in Mother’s primary
         physical custody.

         (2) The trial court erred as a matter of law and/or abused
         its discretion by awarding Father primary physical custody
         of the parties’ two (2) youngest sons and in ignoring the
         long-established, continuing relationship and bond between
         Mother and the three (3) children as the primary custodial
         parent since the parties’ separation.

         (3) The trial court erred as a matter of law and/or abused
         its discretion in dismissing the clear preference expressed
         by the three (3) minor children to remain in Mother’s
         primary physical custody and in failing to afford the
         children’s preference the appropriate weight in its decision
         to separate the siblings and transfer custody of the parties’
         two (2) youngest sons to Father who resides in the [s]tate
         of Alabama.

         (4) The trial court erred as a matter of law and/or abused
         its discretion in its analysis of the factors set forth in 23
         Pa.C.S § 5328(a) (relating to custody factors) and 23
         Pa.C.S. § 5337(h) (relating to relocation factors) and,
         therefore, erroneously determined that Father should have
         primary physical custody of the parties’ two (2) youngest
         children and in granting Father’s request for relocation to
         the [s]tate of Alabama.

Appellant’s Brief, at 6.

      This Court reviews a custody determination for an abuse of discretion.

In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse

of discretion “merely because a reviewing court would have reached a different

conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial



                                      -4-
J-A03011-20



court abuses its discretion if, in reaching a conclusion, it overrides or

misapplies the law, or the record shows that the trial court’s judgment was

either manifestly unreasonable or the product of partiality, prejudice, bias or

ill will.” Id.

       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.

       With any child custody case, the paramount concern is the best
       interests of the child. This standard requires a case-by-case
       assessment of all the factors that may legitimately affect the
       physical, intellectual, moral and spiritual well-being of the child.

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

       The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, requires a trial court

to consider all of the Section 5328(a) best interests factors when “ordering

any form of custody.” 23 Pa.C.S. § 5328(a) (1)-(16). In reaching its decision

to award Father primary physical custody of the two younger children, the trial

court analyzed each factor as it pertains to the circumstances of this case, and

set forth his reasons why awarding Father primary physical custody of the two

youngest children was necessary to promote the children’s best interests and

permanent welfare.        Judge Menges carefully evaluated the custodial

environments of each parent, and thoroughly considered which placement was

                                       -5-
J-A03011-20



in the overall best interests of the two younger children, N.C. and A.C.      See

Trial Court Opinion, 10/11/19, at 10-14 (court noted Father’s testimony that

the environment in Mother’s home was “chaos,”            that Mother expressed

concern about N.C.’s violent behavior toward her and her inability to manage

him physically, that he “keeps locking me out of the house[,]” that lack of

impulse control is part of N.C.’s ADHD and Mother has not been able to teach

him impulse control, while Father has had no significant problems with him

during his 8 weeks in summer; court also found particularly disconcerting

Mother’s failure to follow through on N.C.’s need for recommended therapy,

including partial inpatient hospitalization; court stated in its analysis of factor

six that it was “with great hesitance and pause” that it was separating the two

younger kids from oldest brother, but noted the two younger boys were more

bonded and the oldest was leaving for college in two years; court also found

N.C.’s preference for staying with Mother was based on the “lax” environment,

and, finally, court noted factor one (which party is more likely to encourage

frequent and continuing contact with children and other party) and          factor

eight (attempts to turn child against other parent), both weighed in favor of

Father).

      Judge Menges determined that awarding Father primary physical

custody of N.C. and A.C., and allowing Mother to retain primary physical

custody of W.C., was in the children’s best interests. We agree with the court’s

assessment that compelling circumstances existed in this case warranted

separating the children.

                                       -6-
J-A03011-20



        We also agree with the court’s determination that this was not a

relocation, as neither parent was proposing to change their residence. See

Trial Court Opinion, supra at 18. The parties were operating under a consent

order, wherein Mother had primary physical custody of Child. The issue here

was whether primary custody of two of the children should be changed from

Mother to Father.    Cf. D.K. v. S.P.K., 102 A.3d 467, 477-78 (Pa. Super.

2014) (“[A] custody case where neither parent is seeking to relocate and only

the children would be moving to a significantly distant location if custody

shifted from one parent to another does not per se trigger section 5337 of the

Child Custody Act.”).     Rather, any relevant relocation factor not already

incorporated by the court's consideration of the custody factors may be

addressed under the catchall section 5328(a)(16) (any other relevant factor).

        Judge Menges properly weighed the statutory custody factors and

clearly articulated his considerations in making the custody award.         The

evidence of record supports his decision, and we do not find that his judgment

was manifestly unreasonable or the product of partiality, prejudice, bias or ill

will.   In re K.D., supra. We find no error or abuse of discretion. J.R.M.,

supra. We rely upon Judge Menges’s opinion to affirm the custody order, and

we direct the parties to attach a copy of that opinion in the event of further

proceedings.

        Order affirmed.




                                     -7-
J-A03011-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/14/2020




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               IN THE COURT OF COMMON PLEAS OF YORK COUNTY, P NNSYLVANIA
                                    FAMILY DIVISION

                                                                                 No. 2018-FC-001 98-03
                      JI            E. C                 , JR.,
                                                    Plaintiff
                                           vs.                                                                           CZ

                                                                                 Action in Custod
                      K                    A. S        ,
                                                    Defendant
                                                                                                                    Lo    r:4
                                                                                                                    CD    7I
                  MEMORANDUM OPINION IN SUPPORT OF ORDER PURSlikNT TO RULE
                      1925(a)(2)(ii) OF THE PENNSYLVANIA. RULES OF APPELLATE
                                              PROCEDURE

                     AND NOW, this           10th   day of October, 2019. the Cowl is in rece pt of Mother's

              Notice of Appeal and Concise Statement of Errors Complained of Pursuant to Rule of

              Appellate Procedure 1925(b) filed on September 26, 2019. Tho Court loreby reaffirms

              its Order entered on August 28, 2019.

                            STATEMENT OF FACTS AND PROCEDURAL 111S7 PRY

                     Plaintiff, J           E. C            , Ir,,.("Pather") and Defendant, L               A. S

             ii("Mother"), are the natural parents of W               C             , born Novem er          2002

              ("W.C."), N             C              , born November         , 2005 ("N.C."), aria A

              C            born June        , 2008 ("A..C.").

                     The parties separated in spring of 2014. A stipulated order for 47stody was

              entered by the parties on June 2, 2017 in Baltimore County, Maryland ( ransferred to

              York County, Pennsylvania on or about July 25, 2018), and provided th t Mother had
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               primary physical custody of the children, subject to Father's rights      Op             al physical

               custody on alternating weekends and extended periods of time over the summer. Father

               moved to Alabama in 2016 and Mother moved to York County,            P011320    lvania in2018,

                       On or about February 27, 2019, Father filed a Petition for Mod! cation;

               Relocation and Contempt An Interim Order for Custody, Pending Tri               I   was entered on

               April 2, 2019, which provided the patties with shared legal custody of t e children, and

               Mother with primary physical custody, subject to Father's rights of p               41   physical

               custody of N.C. and A.C. from June 10, 2019. through August 4, 2019, nd custody of

               W.C. from July 21, 2019 through August 4, 2019.

                       A custody trial was held on August 16, 2019 and August 21, 20 9.                  Asa result of

               the custody trial, the Order subject of this appeal was entered on Augur 28, 2019. The

               said Order provided the parties with shared legal custody of the childr             and Father with

              primary physical custody of the parties' two (2) youngest children,                  and A,C,, and

              granted Father's request for relocation to Alabama. The parties agreed                at the oldest

              child, W.C., soon would be 17 years old and was going to stay in Moth            is primary
              physical custody in Pennsylvania.

                       It is undisputed by the parties, and the evidence supports   a   finding that the parties'

              oldest child, W.C., is doing well in Mother's primary physical custody. In fact, he is

              ranked   I   out of 284 in his class. kleg Tr, August 21, 2019 at 5. During the in-camera

              interview with W.C., he stated he understood that he would be staying           h Mother's
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                primaiy custody and wanted his brothers to remain in Mother's prima                         custody as wall

                In fact, all three (3) of the children expressed a desire to stay in Mother                 s   primary

                physical custody, When asked by the Court how he felt his brothers m ving to Alabama

                would impact their relationship with one another, W.C. responded that                            believed that it

                would have a negative impact on their sibling bond.                 1-   rte' Tr., August 6, 2019 at 122.

                When speaking about his younger brothers, N.C. specifically, W,C. described him as

                "just   a   difficult sort of kid."     it at 116.   Following the in -camera intery ew with W.C.,

                the Court interviewed N.C. who admitted that he had difficulty with sc ool this past

                school year. He Mated that the difficulties were caused by "disagreeme ts" and a

                "conflict ef interests" with his teachers, specifically his science teacher and math teacher,

                due to his ADliD.       La:   at 127-128. Lastly, in -camera the Court intervim ed the youngest

                child, A.C. Like his older brothers, he echoed the desire to stay in Mot ier's primary

                physical custody. He further stated to the Court that N.C. had difficult waking up for

                school in the morning because, he stayed up until sometimes 3;00 a.m.                       1    ying video

                games or watching movies.               g at 144.
                            The parties both testified that N.C. ended the school year with a cumulative 01)A

                of 81:5 and passed to the        fith   grade; and that A.C. had been accepted int, an accelerated

                math program and passed to the             5th   grade. The parties also agreed that            C,'s academic

                and attendance issues were worse than the previous sohool. Father t                             ed that in

                October of 2018, the Truancy Officer for Spring Grove School District ontacted him

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               becauSe A.C. had missed almost a week of school and N.C, had numero                         s


               unexcused/unlawful absences from school.                    at 14. The progress report for first

               marking period for A.C. indicated that he had a total of 13 absences (9 xcusod,                        4


               unexcusul/unlawful) and    3   tardies.       a   at 15, A.C.'s teacher noted on           e progress report

               that there were numerous missed homework assignments.                    a   at 16. A.          's progress

               report for the final marking period indicated that A.C.'s total absences                   ere 18.5 (12.5

               excused, 6 unexcused/unlawfii1) and 12 tardies. Id,                With respect to N C., his progress

               report for the second marking period indicated he had              3   excused absene            5


               unexeuseclAmlawful absences, and          3   larches.    a   at 17. It was noted on           .C.'s second

               marking period progress report that he was capable of doing better qua                          work than

               what he was generating, homework was not being completed, and he w                         s    having

               behavioral problems. Id. Father testified that N,C, was eventually cite for violating the

               school's compulsory attendance policy.             a     at 21. Additionally, during is testimony,

               Father described the environment at Mother's house as being "chaos".                             at 22. Father

               stated that he has received numerous texts and e-mails from Mother sa ng that she could

               not get N.C. up in the morning to go to school. Id. Father further state that Mother has

               expressed concerns to him regarding N.C.'s violent behavior towards                         flier, and that

               N.C. was getting too big for her to manage him physically.                a   at 57.       e youngest

               children, N.C. and A.C, Spent the majority of the summer with Father                       Alabama.

               During that time, Father testified that he had no problems getting the                 c   ldren up and to
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             day camp during the week while he was at work.         Lt at 30-31. Additio    ally, Father made

             sure that A.C. read for at least 15 minutes most nights and logged his re ding progress.

                 at 45. It is noted that Mother in her testimony raised concerns that a cording to

             A.C.'s reading log, the number of pages being read each entry seemed 11 w in her opinion.

             Hr'g Tr, August 21, 2019 at      7-B.


                      Mother testified that she lost her job in late October of 2018 due to frequently

             being late.    a   at 86. Mother stated that while she was looking for empl yinent, at the

             time of the custody trial, her only source of income was child support, a imony, and a

             portion of Father's military pension.    a   at 37. Additionally, in October of 2018, N.C.

             was taken to crisis care.       at 49. It was recommended at crisis that N.    .   be partially

             hospitalized, or as an alternative, receive intensive outpatient therapy.          at 55. As of

             the date of the hearing, N.C. had only attended five (5) therapy sessions, because there

             was not access to any additional services.    Li at 56.   With respect to N.   's treatment,

             Mother stated       could have taken him to York Hospital and I could hay told them that

             he was having severe emotional distress and issues and they would have put him             in on a


             psychiatric hold so he would have gotten additional services, I didn't fa      I   like it was

             appropriate to do that."    a   Further, Mother testified that NC, was on a        ailing list for

             months to see a psychiatrist or counselor.   a     at 57. Mother stated that i was

             recommended that N.C. do a partial day program, but the only programs that would take

             the child's insurance were in Hershey and Baltimore. ld. Mother stated it was not
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              feasible for her to drive him there and pick him up everyday, because s e was working.

              Id

                     Regarding the issues that N.C. was having in school, Mother de cribed the

              science teacher's behavior towards N.C. as "egregious."r at 59. Mot tar testified as to

              several meetings with N.C.'s teachers, and she felt like "they were gang ng up on him

              and blaming him for his learning disability."       a   at   it.
                     The Court was presented with evidence of N.C.'s behavioral pro lcms in

              Mother's home.

                             "THE COURT:            Ma'am, I have a question. That sa e exhibit Q, the
                                                    page after Attorney Hunter just re erred to, I see  .




                                                    where I think you texted `[N.C.] i. getting out of
                                                    control with his behavior because won't let him go
                                                    to a friend's house or give his con puter back
                                                    because he's grounded, He keeps 1 eking me out of
                                                    the house. Slamming doors and of icr objects,
                                                    throwing things and using extrem ly crude
                                                    language.' Was that April 26th, 21 199

                             THE WITNESS:           Probably.

                             THE COURT:             So he went to crisis in October of 018., 6 months
                                                    later this was still that bad.

                             THE WITNESS:          That was, believe it or not somew at of an
                                                   improvement.

                             THE COURT:            Ne's locking you out of the house.

                             THE WITNESS:          Yeah. He has a hair trigger, If he    ets mad about
                                                   something, he blows up like that :    I d then usually

                                                   within about 20 minutes he calms        own and 99.9
                                                   percent of the time he will actuall     be the one to
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                                                       come to me and apologize for his ehavior. He's
                                                       definitely remorseful and undcrsta, ds that his
                                                       behavior is inappropriate. But I an told that impulse
                                                       safety is part of the AXED and thit he just blows
                                                       up and takes him longer to get control over his
                                                       emotions and his behavior than otIlcr people.

                               T      COURT:           Okay. Go ahead,"
              ,ld, at 80-81.

                      Mother testified that in May of 2019, she began researching residential treatment

              programs for N,C, due to his behavioral problems at home and that she 4iscussed             this


              treatment option with Father. M. at     6Z.   Additionally, Mother testified cis to other

              remedial steps she was taking to correct some of the behavioral problerris that N.C. was

              displaying, such as a consultation with a learning center for academic st port services;

              and applying a more restrictive setting to the children's electronic devic s.     1. at 9, 74-
              75,

                                                  ISSUES ON APPEAL

                      On September 26, 2019, Mother filed her Concise Statement of rrors

              Complained of Pursuant to Rule of Appellate Procedure 1925(b), which provided               the


             following:

                               1.   The trial court erred as a matter oflaw and/or abuge, its discretion in
                                    separating the parties' three (3) minor children in 1h absence of
                                    compelling citettinStanceiwamanting the separation of
                                    particularly as the three (3) children expressed a preference to remain
                                    together to Mother's primary physical custody.

                               2.   Thetrial court erred as a matter of law and/or abused its discretion by
                                    awarding Father primary physical custody ofthe parries' two (2)
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                                        youngest, sons and in Ignoring the long-establi.shed,. c ?? thru ing
                                        relationship and bond'between Mother and the three 3) children as
                                        the primary custodial parent since the parties' separi tion,

                              3.        The trial court erred as a matter  of law and/or abuse      its discretion in
                                        dismissing the clear   preference expressed by the thre     (3) minor
                                        children  to remain  h  Mother's  prim)   physical oust    idy and in failing
                                        to afford  the children's preference in appropriate we      hi in its
                                        discretion to separate the siblings and iran.Tfer auto       of the parties '
                                        two (2). youngest sons to Father who resides in the St     to ofAlabama.


                              4. The trial court erred as a mailer of law and/or abuse                 its discretion in
                                 its analysis ofthe factors set forth in 23 Pa. CS. §53            a(a) (relating to
                                 the custodyfactors) and 23 Pa, CS. §:5337(h) (retail-             g to the
                                 reocation factors) and, therefore. erroneously deter?             ined that Father
                                 should have prtinaty physical custody of the parties                   o (2) youngest
                                        children and in granting Father's request far relocat          n to the State of
                                        Alabama.

                                                           DISCUSSION

                      An abuse of discretion is more than just an error in judgment an             ,   on appeal, the

              trial court will not be found to have abused its discretion =leas the reoo d discloses that

              the judgment exercised was manifestly unreasonable, or the results of p ttiality,

              prejudice, bias or ill -will. Baysmore      v.   Brownstein, 771 A.2d 54, 57 (Pa. Super. 2001)

              (internal citations omitted).

                     An appellate court has broad review in custody oases, and tries, i not bound by

             the deductions or inferences made by a trial court from the facts found, or must the

              appellate court accept a finding of fact for which there is no competent videneeto

             support it. Piton     v.   non, 492 A.2d. 59, 59-60 (Pa. Super.        1985). Howc vor, this broad
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             scope of review by the appellate court was never intended to nullify the act finding

             function of the trial court.   AL,


                               1.   The trial court erred as a matter of law and/or at us d its discretion
                                    in separating the parties' three (3) minor children it the absence of
                                    compelling circumstances warranting the separactiot of siblings,
                                    particularly as the three (3) children expressed a preference to
                                    remain together in Mother's primary physical custody.

                       It is denied that the Court erred as a matter of law and/or abused is discretion in

             separating the parties' three (3) minor children. It   is   further denied that here was an

             absence of compelling circumstances warranting the separation of the o ldren.

                       "[T)he cardinal concern in all custody matters is the best interest nd permanent

             welfare of the child, in this case, children. It has always been a strong p hey in our law

             that in the absence of compelling reasons to the contrary, siblings shoul be raised

             together whenever possible." Ld.at 6D. "The requirement of showing  Et           f 'compelling

             reasons' might appear synonymous with the `clear necessity' requirerne t of the Juvenile

             Act...lf one is 'compelled' to do something,     it might be said that [it} is   etossary'   to   do

             it. Moreover, the term "compelling' is defined as 'tending to convince o convert by or

             as   if by forcefulness of evidence.' "Id.   The question then becomes whe her it was

             necessary to separate the children and whether the evidence was force            in that regard.

             Id
                      The Court's decision to grant Father primary physical custody o the parties' two

             (2) youngest children, N.C, and A,C., was necessary to promote the.best interest and
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              permanent welfare of those particular children, because evidence was presented at the

              custody trial indicating that Mother could not control the parties' naidell child, N.C., and

              the educational, mental/emotional, and physical needs of the parties'       t     (2) youngest

              children were not being   satised in Mother's       care. The Court stated its   tidings and

              reasons for believing that the best interest and permanent welfare of the hildren would

              be promoted by the Order of August 28, 2019 in open court, on the reco d, pursuant to

              the custody statute at §5328, as follows:

                                             "The first factor is which party is      lilt      y to encourage
                                     and permit frequent and continuing   contact  betwe          the children

                                                              _pattern a
                                     and the other party. We find this factor in favor o
                                     clear that mother has. engaged in a
                                     children to have a good and healthy relationship
                                                                                      no
                                                                                               father since it is
                                                                                               encouraging the
                                                                                               ith the father.

                                             The second factor is present or past abuse and there was a
                                     stipulation that there had been no abuse. So that i. not a factor.

                                            Factor 2.1 is involvement with protective erviees and there
                                     was no evidence of that and therefore that is not factor.

                                             Factor three, the parental duties performer by each party on
                                    behalf of the child. This is at best a mixed bag. F er has not for
                                    three years or maybe not quite that long, has not r at least the last
                                    year or two bad the cbildron during school time d mother has.
                                    However, the parental duties go beyond nurturing children and
                                    providing for them and making gore they get to w ere they need to               .



                                    go and so -forth. Parental duties also refers to soya c sense of
                                    discipline and fostering and teaching children so control. Quite
                                    candidly mother has done a poor job of that. Tb e is at least one
                                    text or e-mail we saw in the exhibits that we look d at on Friday in
                                    which mother conceded that her house was chaos We saw a text
                                    today where in April just a few months or so ago other was
                                    texting father that Nate is out of control and is lo c1,ing her out of
                                    her own home. Mother provides many excuses fo why this is
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                                  going on and that she has drop her best and of co rse the Court
                                  believes that on some level she has done her best, But the Court
                                  believes mother is incapable of providing the disc Ono these
                                  children need, The Court was very troubled at tod y's testimony
                                  where mother tied to explain away the text in Ap 112019 where
                                  Nate was destroying furniture and locking her out of the home and
                                  she gave as reason for that Nate'S impulse safety hick is a part of
                                  his ADM). Impulse safety is why many murders lappen. Part of a
                                  child growing up is to learn to control his or her h ipulses. It was
                                  'Iota 5, 7 or 10 -year-old. This is a 13 -year -old au1d the Court is
                                  most troubled that mother has not been able to teeh this child any
                                  impulse safety control. We heard from father and ather's fiance
                                  that father had no substantial problems with Nate a the eight
                                  weeks ho had him this past summer, The Court is also most -
                                  troubled by mother's haying the child go to crisis :s au intervention
                                  in October of 2018 but could not get the child to ny therapy in
                                  spite of the fact that partial hospitalization was th
                                  recommendation, mother could not get the child t any therapy for
                                  almost six months- four months really. At any ra e, she gave the
                                  Court all kinds of reasons and excuses including ut not limited to
                                  the lack of insurance coverage. Maybe the Court s old fashion but
                                  if my child or grandchild bad to go to crisis and p rtial
                                  hospitalization was recommended, I would find a me way to pay
                                  for that out -of any pocket regardless of 'mina= overage, We just
                                  find mother's lack of getting this child to any tiler py unbelievable.
                                  That is unfortunately reinforced by the fact that o looked at the
                                                                                    N


                                  April 2019 text by mother where the same child 1 ate was locking
                                  her out of her house and although therapy had sta ed by then
                                  according to mother's testimony, she also test-J.6e there has only
                                  been five sessions from February 2019 to the pre ant in August of
                                  2019. In any event, the parental duties in one sen a have been
                                  performed well by mother, in another sense are a rely laoldeg and
                                  need a different parent to perform those duties an thereforo we
                                  find this factor heavily in favor of father.

                                          Factor four, stability and continuity in the children's
                                  education, flimily life, and community life, Both arties had really
                                  exhibited a fairly high degree of stability. Father ad some
                                  instability over the last several years as to where he lived but

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                                 mother just lost her job and her ability to support ersolf seems a
                                 bit suspect. In any event, we find that a neutral fa tor.

                                         Factor five, the availability of extended fa ily,
                                 Unfortunately, the Court even has to find this fao or in favor of
                                 father. Mother's mother and brother and family li a in Georgia and
                                 father arranged for the children to visit with their arnily in Georgia
                                 during his time of custody. That tells the Court th t the father
                                 values not only his extended family but mother's xtended family
                                 highly and enough to take some of his time of his summer custody
                                 schedule to make sure these children see mother' family in
                                 Georgia.

                                         Factor number six is the children's sibling relationships,
                                 This is another tricky factor. The Court is fully e gnizant of the
                                 fact that the court is separating these two children from their oldest
                                 brother [W.C.). It is with great hesitance and pat e that the Court
                                 does that. But it is very obvious that [W.C.] will e going to
                                 collage in not only two years, about a year and th ac -quarters and
                                 therefore that will get severed somewhat then as way. The Court
                                 is counting on the parents to try to do everything ey can so that
                                 [W.C.] and his brothers spends some time with e oh other on the
                                 summer vacation and with the family on some of le breaks. In any
                                 event, the Court did find that [N.C.] and [AL.) a p closer in age
                                 and closer bonded than the two younger children e with [W
                                 Again, [W.C.] is a completely different kind pfc ild, He's a nerd.
                                 He's number one in his class. He's very studious, las concrete
                                 plans for the future. And this does set him apart s meWhat from
                                 the other two younger children.

                                          Factor seven, the well-reasoned preferenc of the children.
                                  Again, is with great pause. This Court is orderin a schedule that is
                                  contrary to the children's stated preference. All t ee children
                                  stated they wanted to stay in Pennsylvania with other. Of course
                                                                                     NV



                                  [W.C.'s] preference is really irrelevant. [N.C.'s] reference the
                                  Court finds is primarily because he enjoys mothe s very lax and
                                 'lenient life and enabling [N.C.) to do pretty Imo whatever he
                                  wants. Interestingly, (A.C.) did express a preferepee to stay with
                                  his mother in Pennsylvania but did not appear it I.Vas a big deli if it
                                  was to go the other way. [A.C.] seemed flexible tmd the extreme
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                                  circumstances of [N,C.'s] problems not only in the school but his
                                  behavior problems are so extreme that we have t order a schedule
                                                                                        I




                                  that is contrary to the children's preferences and tgierefore this
                                  factor is in effect neutral.

                                         Factor number eight, the attempts of a par .nt to turn the
                                 child against the other parent. As we stated in fac or number one,
                                 mother seems to have engaged in a very subtle au d tacit attempt to
                                 have the children not have as good relationship vd 'di their father as
                                 they should and therefore this is also a factor in f vor of father_

                                         Factor number nine is which party is mor likely to
                                 maintain a loving, stable, consistent and nurturin relationship with
                                 the children, adequately for the children's emotion al needs,
                                 Candidly but for the last several words of that farAor we would find
                                 that probably slightly in favor of mother. Agaln other has done
                                 some things very well. But [not] adequate for the children's
                                 emotional needs. Emotional needs take in a lot a things including
                                 behavior and mother has not maintained the prop r home and rules
                                 and discipline for the children's emotional needs nd therefore this
                                 factor actually has TO lean towards father.

                                         Factor number ten is which party is more           ikely to attend to
                                 the daily physical, emotional, developmental, ed           catioual and
                                 special needs of the children. We're going to call           at a neutral
                                 factor. Mother again has done some things very              ell. But father
                                 seems to be able to take excellent bare of those c         ildren during the
                                 summer and therefore it is a neutral factor.

                                          Factor number 11, the proximity of the re         idences of the
                                 parties was stipulated to I think if I remember co          ectly it was 924
                                 miles. Which will necessitate probably a lot of tb          going back and
                                 forth to he by air but it also can be driven in a 2-       ay Drive. In any
                                 event, it's a actor but it doesn't lean towards mo          ar or towards
                                 father.

                                        Factor 12, each parties availability to care for the children
                                 and make appropriate child care arrangements. B th parties have
                                 been able to do that just Lie and that's a neutral otor.

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                                                  Factor 13, level of conflict between the p es. And the
                                          willingness and ability of the parties to cooperate ith each other.
                                          The Court has read the exhibits, the e -mails and t xts and while a
                                          few of fathers communications were not as friend y as they should
                                          have been, there were times when mother didn't c en bother to
                                          respond to some of father's communications. Mo er seems to
                                          have many excuses for why the communications etween mother
                                          and father are so poor. And again we cannot say they is without
                                          fault but a lot of the problems with the comrnunic tions seem to be
                                          on the part of mother. Therefore, this is a factor it favor of father.

                                                  14th and 15th factor, drug and alcohol ab se and mental
                                          and physical condition, we [have) a stipulations tl at those are not
                                          issues and therefore they are not factors.

                                                  16 any other relevant factor. Again, we've dealt with all      the
                                          factors and therefore that is not a factor."

                Hr'gTr,, August 21, 2019        at 111-118

                                  The Court believes that the record speaks for itself, and t rat the Court's

                decision to award Father primary physical custody of the two (2) young st children was

                necessary to promote the best interests and permanent welfare of the chi dren. However,

                the Court would like to add that while the Court did consider Mother's namployment in

                factor four, the stability and continuity in the children's education, faruil life, and

                community life to be a neutral factor between the parties, the Court did ear testimony

                that Mother lost her employment due to frequent tardiness to work cans d by Mother's

                inability to get the children   10   school on time. Thus, the Court did not e Ted as a matter

                of law and/or abused its discretion      in separating the parties' three (3) m   or children,

                because evidence was presented at the custody trial indicating that corn ening

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              circumstances existed in this case which warranted separating the chair.           ,   and the

              decision was nbt manifestly unreasonable, or the results of partiality, pr. udice, bias or



                             2.   The trial court erred as a matter of law and/or airs d its discretion
                                  by awarding Father primary physical custody of the artier' trio
                                  youngest sons and in ign.aring the long-established, continuing
                                  relationship il)a hand between Jilother and the titre (3) children as
                                  the primary custodial parent since the parties' sepa       411011.




                      It is denied that the Court erred as a matter of law and/or abused its discretion by

              awarding Father primary physical custody of the parties' two (2) young' st children and

              ignoring the Jong-established, continuing relationship and bond between Mother and the

              three (3) children as primary custodial parent since the parties' snparati

                     To the contrary, as stated above in the Court's recitation of the c stody factors

              pursuant to §5328, Mother has done some things vary wellwith respect to her care of the

              children, The Court acknowledges that the parties' oldest child, W.C. b        s   done and

              continues to do very well in Mother's primary physical custody. The C urt does not

              ignore or deny that there is a bond between the three (3) children and b           een the

              children and Mother. However, not all bonds arc healthy bonds. Speer cally, as stated

              in factor seven (7) the well -reasoned preference of the child, the Court      and that N.C,'s

              reference to stay with Mother was based on the lax environment at Mot er's house and

              that N.C. was free to do pretty much whatever he wanted, and he does,              demonstrated

              by him looking Mother out of her own house and breaking various obj is in the house_
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              N.C. seems to place blame on others for his actions, like doing poorly           school. Mother

              likewise shifts blame from N.C, to any bystander nearby. Mother's ina lity to hold N.C.

              responsible for his conduct and protecting him from the consequences o his conduct by

              blaming others is not healthy. Additionally, the parties' oldest child, W C. will most

              likely be going off to college after high school, and the children would         e   have to

              transition to being separated at that time as well. The Court also ebsery d, as stated in

              the recitation of the custody factors, that when interviewing the children N.C. and A.C.

              appeared to have   a   closer bond with each other than they did with W.C. While the Court

              is hesitant to separate siblings, given the facts of this case, the Court bel eves that it is

              appropriate.

                      Therefore, the Court did not erred as     a   matter of law and/or abus d its discretion

              by awarding Father primary physical custody of the parties' two (2) you gest children,

              and the Cotut did not ignoring the long-established, continuing relation rip and bond

              between Mother and the three (3) children, because the decision to sepa ate the three (3)

              children was supposed by the evidence presented at trial and not the r -- It of

              unreasonableness, or partiality, prejudice, bias or ill -will on the part of e Court,

                              3. The trial court erred as a matter of law and/or abus          d its discretion
                                  In dismiSsint the clear preference expressed by the          zree (3) minor
                                  children to remain in Mother's primary physical a            Cody and in
                                 failing to afford the children's preference in appro          late weighi in
                                  its discretion to separate the siblings and transfer C           ody of the
                                 parties' Iwo (2) youngest sons to Father who reside           in the State of
                                 Alabama.

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                        It is denied that the Court erred as a matter of law andior.abused 'ts discretion in

               dismissing the clear preference expressed by the three (3) minor childr         to remain   in


               Mother's primary custody and it is further denied that the Court failed t afford the

               cliildren's.preference the appropriate weight in its discretion to separate he siblings.

               Factor seven (7), the well -reasoned preference of the child pursuant to   §   328 means

               plainly what it states: the well-reasoned preference of the child. While be Court

               believes that WC., the parties' oldest child's reasons for wanting to stay in Mother's

               primary physical custody and not be separated froM his brothers      is wail - easoncd,W.C.

               did tell the Court that N.C. was a "difficult sort of kid."       Tr., Augtt t 16,2019 at

               116. Moreover, since W.C.'s custodial position was not changing, his p         demon has

               little to no weight in the overall evaluation of the children's preference.     s previously

               Stated above, N.C.'s preference to stay with Mother the Court did not be eye was well -

               reasoned, but rather based on the fact that Mother could not control him rid allowed him

               to de whatever he pleased at Mother's home. Finally, the Court found           .C. is preference

               to be somewhat passive. AL. expressed a desire to stay in Mother's pri ary physical

               care, but could have easily transitioned to Father's home as well, Thus,        e    Court did not

               erred as a matter of law and./or abused its discretion in dismisSing the el ar preference

               expressed by the three (3) minor children to remain in Mother's primary custody, because

               the children's preferences were not well -reasoned and the Court gave th children's

               preference the appropriate weight it deserved in weighing the custody fa tors,

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                              4.   The trial court erred as a mailer of law and/or abus its discretion
                                   in its analysis of the factors sotforth. in 23 Pa. C.S. 5328(a)
                                   (relating to the custody factors) and 23 Pa. C.S. §53 7(h) (relating to
                                   the relocation factors) and, therefore, erroneously d tertnined that
                                   Father should have primary physical custody of the ladies' two (2)
                                   youngest children and in granting Father's request or relocation to
                                   the State of Alabama.

                              It is denied that the Court erred as   a   matter of law and/or bused its

              discretion in its analysis of the factors set forth in 23 Pa. C.S, §328(a) a d 23 Pa. C.S.

              §5331(h). The Court presents that the evidence and testimony presented at the custody

             trial adequately provided the basis for the analysis of the custody factors set forth                   in 23


             Pa. CS. §5329(a). Such evidence and testimony can be found in their a tirety in the

             custody record regarding this matter. Additionally, the Court stated at           e custody trial

             that it did not consider relocation to be applicable to this case, because " a do not have a

             parent relocating, I'm relooating the children." Hr'g Tr, August 21, 20           9   at   1   I   I.


             Neither party objected at the time of the custody trial to the relocation fa tors not being

             addressed, nor had either party objected to the issue of whether or not       a   olocation had

             even occurred. Therefore, the Court did not err as a matter of law and/or abused its

             discretion in its analysis of the factors set forth in 23    P. CS,   §5328(a) and 23 Pa. C.S.

             §5337(h), because the evidence and testimony presented at the custody trial set forth the

             basis for the Court's analysis of the custody factors under §5328(a), and the relocation

             factors under §5337(h) were not applicable in this matter.


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                                                  CONCLUSION

                     After review of the record and for the foregoing reasons, the Co rt hereby

              reaffirms its Order entered on August 28, 2019.



                                                          BY THE C URT,




                                                          N.    H                       crs; SCE




                                                        19
