J-S13029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.S.                                               IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

T.S.

                            Appellant                  No. 1700 WDA 2014


                   Appeal from the Order September 16, 2014
                  In the Court of Common Pleas of Blair County
                      Civil Division at No(s): 2007 GN 6039


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                                  FILED MAY 15, 2015

       Appellant, T.S. (Mother), appeals from the September 16, 2014

custody order that denied her request to modify the existing custody order,

entered January 26, 2011, with respect to her daughter, A.S., born in

November 2000, and her son, J.S., born in February 2006 (collectively, the

Children). After careful review, we affirm.1

       Following an evidentiary hearing in December of 2010, the trial court

entered the January 26, 2011 existing custody order granting C.S. (Father)

sole legal and primary physical custody and Mother partial physical custody

on alternating weekends.         In addition, the existing custody order granted

____________________________________________


1
  The Honorable Hiram A. Carpenter, III, presided over the proceedings that
resulted in the subject custody order as well as in the existing custody order.
J-S13029-15


Mother physical custody every Wednesday during the school year from 3:30

p.m. to 7:00 p.m. and, during the summer, from 9:00 a.m. to 8:00 p.m.

       On August 27, 2013, Mother filed a petition to modify the existing

custody order, wherein she sought primary physical custody of the Children.

The evidentiary hearing in this matter occurred on August 26, 2014, during

which Mother and Father testified. By opinion and order dated September

15, 2014, and entered on September 16, 2014, the trial court denied

Mother’s request for modification. Mother timely filed a notice of appeal and

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i).2

       On appeal, Mother presents the following issues for our review.

              I. Whether the trial court erred and/or abused its
              discretion in failing to place primary physical custody
              of the subject children in [] Mother under the law
              and the facts and the circumstances of this case[?]

              II. Whether the trial court erred and/or abused its
              discretion in its application of the custody factors to
              the facts and circumstances of this case in deciding
              not to place primary physical custody of the subject
              children in [] Mother[?]

              III. Whether the trial court erred and/or abused its
              discretion in failing to significantly expand the
              amount of time that the [ ] Mother has physical
              custody of the subject children in view of her
              availability and clear capability of caring for them
____________________________________________


2
  On November 10, 2014, the trial court filed a notice of its intent to rely on
the certified record and its previous opinions for purposes of Mother’s
appeal.



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J-S13029-15


            and meeting their needs during the times when []
            Father is unavailable[?]

Mother’s Brief at 4.

      The scope and standard of review in custody matters is as follows.

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

            R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
            Super. 2009) (quoting Bovard v. Baker, 775 A.2d
            835, 838 (Pa. Super. 2001)). Moreover,

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

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




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J-S13029-15


              R.M.G., Jr., supra at 1237 (internal citations
              omitted). The test is whether the evidence of record
              supports the trial court’s conclusions. Ketterer v.
              Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).


A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (parallel citations

omitted).

         Further, we have stated the following.

              The discretion that a trial court employs in custody
              matters should be accorded the utmost respect,
              given the special nature of the proceeding and the
              lasting impact the result will have on the lives of the
              parties concerned. Indeed, the knowledge gained by
              a trial court in observing witnesses in a custody
              proceeding cannot adequately be imparted to an
              appellate court by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006), quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004).

         The primary concern in any custody case is the best interests of the

child.     “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006), quoting Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004).

         The Child Custody Act (the Act), 23 Pa.C.S.A. §§ 5321-5340, became

effective on January 24, 2011. Because the proceedings in the instant case

occurred after the effective date of the Act, the Act is applicable. See C.R.F.

v. S.E.F., 45 A.3d 441, 442 (Pa. Super. 2012) (concluding that “where the


                                       -4-
J-S13029-15


evidentiary proceeding commences on or after the effective date of the Act,

the provisions of the Act apply even if the request or petition was filed prior

to the effective date[]”).

      Relevant to this custody case are the factors set forth in Section

5328(a) of the Act, which provides as follows.

            § 5328.      Factors to consider when awarding
            custody.

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


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

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

                  (2.1) The information set forth in section
                  5329.1(a)(1) and (2) (relating to consideration
                  of child abuse and involvement with protective
                  services).

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

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

                  (5) The availability of extended family.


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J-S13029-15



              (6) The child’s sibling relationships.

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

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

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

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

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

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

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

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

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




                                 -6-
J-S13029-15


                     (16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).3

       This Court has stated that, “[a]ll of the factors listed in section

5328(a) are required to be considered by the trial court when entering a

custody order.”      J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)

(emphasis in original).

              Section 5323(d) provides that a trial court “shall
              delineate the reasons for its decision on the record in
              open court or in a written opinion or order.” 23
              Pa.C.S.A. § 5323(d). Additionally, “section 5323(d)
              requires the trial court to set forth its mandatory
              assessment of the sixteen [Section 5328 custody]
              factors prior to the deadline by which a litigant must
              file a notice of appeal.” C.B. v. J.B., 65 A.3d 946,
              955 (Pa. Super. 2013), appeal denied, 70 A.3d 808
              (Pa. 2013)….

              In expressing the reasons for its decision, “there is
              no required amount of detail for the trial court’s
              explanation; all that is required is that the
              enumerated factors are considered and that the
              custody decision is based on those considerations.”
              M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.
              2013), appeal denied, 68 A.3d 909 (Pa. 2013). A
              court’s explanation of reasons for its decision, which
              adequately addresses the relevant factors, complies
              with Section 5323(d). Id.

A.V., supra at 822-823.          With these standards in mind, we turn to the

merits of this appeal.


____________________________________________


3
  The Act was amended, effective January 1, 2014, to include the additional
factor at Section 5328(a)(2.1).



                                           -7-
J-S13029-15


      All three of Mother’s issues pertain to the trial court’s discretion in

applying the custody factors under the Act to the facts of this case.

Specifically, Mother argues “there is no sound basis for not placing primary

physical custody of the children with her, together with substantial periods of

partial custody with Father consistent with his work schedule[.]”       Mother’s

Brief at 11.   Mother argues the current custody arrangement “results in

significant periods of time during which the [C]hildren are cared for by

babysitters and others.”       Id.   Further, Mother asserts that “although

Mother’s   behavior   may    be   unusual,   inconvenient,    uncomfortable,   or

somewhat disruptive; this should not be grounds for denying her request for

primary physical custody of [the C]hildren unless the conduct can be

specifically shown as having a detrimental impact on the [C]hildren,” which

Mother asserts it does not. Id. at 12-13.

      In its September 16, 2014 opinion and order, the trial court fully

addressed all of the Section 5328(a) custody factors in light of the evidence

presented during the hearing on August 26, 2014.             Trial Court Opinion,

9/16/14, at 6-20. In addition, the trial court incorporated its opinion dated

January 26, 2011, with respect to the existing custody order. Specifically,

the trial court explained its rationale as follows.

            [B]ased on the record created at the present hearing
            that Opinion remains extremely accurate as to the
            issues in the case and, given this opportunity, we
            would not change a single word of our earlier writing
            (notwithstanding the passage of almost four years)
            as accurately reflecting the situation both as it

                                       -8-
J-S13029-15


              existed then and as it exists now. In fact, most of []
              Mother’s presentation involved a repeat of what we
              heard at that time.

Id. at 5-6.    In the January 26, 2011 opinion, the trial court stated that,

“[a]t the outset, we acknowledge that [M]other’s mental health condition

and her resultant behaviors are key issues in this case…. They affect both

her thought process and her judgment.” Trial Court Opinion, 1/26/11, at 5.

        In   the   instant   matter,   Mother’s   mental   health     condition   was

undisputed. In her brief, Mother states she suffers from “certain disabilities

resulting from an accident when she was a teenager….”               Mother’s Brief at

10.     Further, at the custody hearing, Mother testified she had a traumatic

head injury and acknowledged that she suffers from short-term memory

loss.    N.T., 8/26/14, at 68, 101.       Mother also testified she suffers from

Attention Deficit Hyperactive Disorder (ADHD), for which she is prescribed

Adderall, and she suffers from Post-Traumatic Stress Disorder (PTSD). N.T.,

8/26/14, at 68.        Finally, Mother testified she is under the care of a

psychiatrist whom she sees on a monthly basis. Id.

        With respect to Mother’s mental health, the trial court noted that

ADHD and PTSD “were not established as the diagnosis in [Mother’s] medical

records[.]     [However,] the impulsive behavior, acting without regard to

consequences, and disorganized thinking on the part of the Mother which are

documented in the mental health records were on full display both through




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J-S13029-15


[] Mother’s testimony and reviewing her actions where the [C]hildren are

concerned.” Trial Court Opinion, 9/16/14, at 17.

       In considering all of the Section 5328(a) custody factors, the trial court

found that the most relevant ones weighed in favor of Father.4 Significantly,

with respect to Section 5328(a)(4), the need for stability and continuity in

the Children’s education, family life and community life, the trial court found

that Mother’s mental health difficulties “impact dramatically the stability and

continuity which she could offer the [C]hildren.”          Trial Court Opinion,

9/16/14, at 11. The trial court found that, “[a]ll of [the Children’s] stability

revolves around [Father’s] household and, in fairness, the established

visitation schedule with their Mother.” Id. at 10. In addition, the trial court

found that Mother “does not presently have a home in which the [C]hildren

could be placed even if the [c]ourt were inclined to do so.” Id. at 12. The

trial court found that Mother’s present residence “is red tagged[5] and she

offered no specific plans for moving to another property which she owns in

Hollidaysburg located near the Father.” Id.



____________________________________________


4
  The trial court found that Section 5328(a)(5) and (6) did not favor either
party. Further, it found that Section 5328(a)(7) and (11) are not relevant to
this case.
5
  Mother acknowledged on cross-examination that the gas for her home was
red-tagged, or shut off, during the past winter and remained red-tagged at
the time of the subject proceedings. N.T., 8/26/14, at 102-103, 133-134.



                                          - 10 -
J-S13029-15


      With respect to Section 5328(a)(9), i.e., assessing which party is more

likely to maintain a loving, stable, consistent and nurturing relationship with

the [C]hildren adequate for their emotional needs, the trial court found that,

“Mother is so caught up in her own issues, bogged down by her own

difficulties, and unable to maintain structure … that she can make no case

she would be remotely equal to [ ] Father who demonstrates all those

qualities in abundance.” Trial Court Opinion, 9/16/14, at 14.

      The trial court summed up its decision to deny Mother’s petition for

modification of the existing custody order by stating as follows.

             In closing, as we noted in December 2010, this is an
             extremely difficult Opinion to write. No fact finder or
             [c]ourt could take pleasure in confronting this Mother
             with the harsh reality of her own behavior when, in
             fact, we are convinced she has very little control
             over it due to her mental health issues. However,
             we cannot change the fact that custody opinions are
             about the best interest of children and not in the
             best interest of a mother who clearly needs to be
             affirmed and feels she has been taken advantage of
             by everyone involved at every opportunity. The best
             we can do for this Mother is affirm that we believe
             her intentions are good.       Her performance and
             demonstrated       abilities,   however,      establish
             overwhelmingly that the best interest of the
             [C]hildren lies with remaining in the primary
             [physical] custody of their Father.

Id. at 20.

      Upon careful review of the certified record, including the notes of

testimony, the parties’ briefs, the trial court opinions entered September 16,

2014, and January 26, 2011, and the applicable law, we discern no error of


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J-S13029-15


law or abuse of discretion by the trial court in its custody decision.6

Accordingly, we adopt the trial court’s opinions as dispositive of Mother’s

issues on appeal.       See Trial Court Opinions, 9/16/14 and 1/26/11.      The

parties are directed to attach a redacted copy7 of the trial court’s opinions in

the event of further proceedings.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2015




____________________________________________


6
  To the extent Mother argues that the trial court erred by describing her
mental health condition within the context of Section 5328(a)(14), the
history of drug or alcohol abuse of a party, we conclude that this error was
harmless. The subject proceedings did not reveal any drug or alcohol abuse
by either party. Likewise, the trial court did not find any drug or alcohol
abuse by Mother or Father. We recognize that the trial court discussed
Mother’s mental health in the context of Section 5328(a)(14), rather than
under Section 5328(a)(15), the mental and physical condition of a party, but
we conclude that it did not result in any prejudice to Mother as drug or
alcohol abuse by either party was not a basis for the trial court’s conclusion.
7
 The copies shall include the redacted names of Mother, Father, and the
Children.



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                                                                          Circulated 04/29/2015 11:17 AM




 c. s.                                              COURT OF COMMON PLEAS OF
                                                    BLAIR COUNTY, PENNSYLVANIA
                        Plaintiff

                        vs.                          07 GN 6039

·T.S,
                        Defendant




 HON. HIRAM A. CARPENTER III                        PRESIDING JUDGE

 EDWARD·E. ZANG, ESQUIRE                            COUNSEL FOR PLAINTIFF

 LUCAS KELLEHER, ESQUIRE                            COUNSEL F9R DEFENDANT




                                    OPINION AND ORDER

         This matter comes before the Court on request of the mother for an Evidentiary

Hearing to determine custody of the parties' children, A.S.                 born November

14, 2000, and J.   S.          born February 22, 2006. An Evidentiary Hearing was held to

a conclusion on December 21, 2010. We interviewed A,S,             on December 22, 2010.

The record is closed and the case is ready for decision.

         At the outset, we note that although the mother petitioned for this evidentiary

hearing, each of the parents believes the parties' present custody arrangement reflected by

the Court Orders of September 1, 2009, and June 21, 2010, are not serving the best interest

of these two minor children.

         From the mother's perspective, she believes that an Order either establishing her as

the primary custodian or reflecting a custody arrangement closer to 50/50 would be best.

She also believes the father's extensive use of babysitters when he is working is not in the

chilchildr en chi91d
                                                                           Circulated 04/29/2015 11:17 AM




 children's best interest and those times should be spent with her. The mother has little

 respect for the father.

        She has a firmly entrenched belief the father is not 'there" for the children.   The

 mother suffers from a personality disorder which is a major factor in the case.

        The father presents as having made reasonable efforts to work with the mother

 where custody is concerned to little avail. Presently, he believes the numerous exchanges

 involved in implementing the present custody Orders are not in the best interest of the

'Children. He suggests the mother's time be reduced to one night a week for a few hours

together with every other weekend.

        The case was unusual in that the father's former counsel (Attorney Lee Sill) testified

as to the circumstances surrounding their September 1, 2009, Order. The mother believes

she was taken advantage of in that negotiation by father's counsel when she was

unrepresented. Although we heard this testimony, it is not critical to our determination for

two reasons. First, if the mother offers the testimony to demonstrate it was always her

intention to serve as primary custodian, we would believe her even without this testimony.

We do not question the mother's sincere interest in the children irrespective of whatever

Order might have been entered on September 1, 2009. Second, significant time has passed

(over sixteen months) since that Order was entered. Simply put, the case is not about

whether the Order entered in September, 2009 was appropriate - rather, the case is about

the best interest of the children as we sign this Opinion and Order in January, 2011.

Finally, while our observation of the mother at our hearing of December 21, 2010, suggests

that negotiating with her was risky, we acknowledge we did not see her in September, 2009

nor were we a party to what extent other family members may have been involved on her

behalf in helping her understand the document to which she "agreed."      In any case, we are
                                                                              Circulated 04/29/2015 11:17 AM




 neither bound by the September 1, 2009, Order not do we conclude from it that the mother

 was "abandoning" her children.

         Finally, we interviewed A.S.          as part of the case. We will discuss that

 interview later in this Opinion.

                As always, our paramount concern in a case whether it involves custody or

 visitation is the best interest and permanent welfare of the child. Commonwealth          ex rel

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

-subordinate to the child's physical, intellectual, moral and spiritual well being. In the

 interest of Tremayne Quame !dress R., 429 A.2d 40, 43 (1981). Parents do not have a

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

 visitation rights, is to be tested by what is in the best interest of the child. See generally,

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

 decree is not meant to punish a parent or anyone else, its only purpose is to help the child.

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

presumptions in custody disputes. In child custody cases, the Court must continually hew

to the polestar of a child's best interest eschewing presumption and surmise. Morris v.

Morris, 412 A.2d 139, 141 (1979). The Court should avoid mechanical determinations and

focus its analysis on a close scrutiny of all particular facts relevant to determining the

child's best interest. In Re: Custody of Hernandez, 376 A.2d 648, 653 (1977). Further, the

ability to care for a child is to be determined as of the time of the custody hearing, not as of

an earlier time. In Custody of Frank, 423 A.2d 1229 (1980). Decisions must be madeon

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

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

the present and future. Hooks v. Ellerbe, 390 A.2d 791 (1978). Facts at the time of hearing


                                                3
                                                                              Circulated 04/29/2015 11:17 AM




 are the foundation for the determination     of the Court. Augustine v. Augustine, 312 A.2d

 477 (1974). Past conduct is not relevant unless it will produce an ongoing negative effect on

 the child's welfare. In Re: Leskovich, supra. At hearing, each parent shares the burden

 of proving by a preponderance of the evidence that an award of custody to him or her

 would serve the best interest of the child. Ramos v. Rios, 378 A.2d 400 (1977). The burden

 of proving superior fitness as a parent rests equally with both parties. In Re: Custody of

 Hernandez, supra. In considering a change, the trial court is required to consider the

 advantages and risks where the minor child is concerned.        Continuity and stability are

 important elements in a young child's emotional development.         Commonwealth      ex rel

 Jordan v. Jordan, 448 A.2d 1113 (1982). The fact that a stable, long-continued        and happy

 relationship is developed between the child and one parent may be of critical importance to

 the formulation of an appropriate decree. Pamela J.K. v. Roger D.J., 419 A.2d 1301.

. However, while stability is a factor, it is not the sole criteria in a custody action. The fact

 that a child has not lived with a parent for a considerable length of time will not alone

 defeat that parent's right to custody. In Re: Custody of Hernandez, supra. The

obstruction of a non-custodial parent's right to contact with a child is an extremely serious

matter, especially when it violates Court-ordered visitation or partial custody. Pamela J.K.

v. Roger D.J., supra. A custodial parent's obstruction of the non-custodial parent's right to

visit the child may serve as the basis of an Order changing custody. Pamela J.K. v. Roger

D.J., supra. Additionally, where shared custody is being considered by the Court four

criteria are set forth for the hearing consideration.   In Re: Wesley J.K., 445 A.2d 1243

(1982).
                                                                            Circulated 04/29/2015 11:17 AM




                                           DISCUSSION

         At the outset, we acknowledge that the mother's mental health condition and her

 resultant behaviors are the key issues in this case. They are matters of great concern to

 everyone involved. They affect both her thought process and her judgment. They also

 affect her attitude toward the father. This last finding as to her ability to work with the

 father is critical. A 50/50 sharing of custody requires considerable ability on the part of the

 parents to work together.    In this case, we have exactly the opposite situation.   In fact, not

 only is there an absence of respect and cooperation with the father there is deliberate

 undermining of his role.

        After hearing the case, we are satisfied of the father's good intentions; his

willingness to work with the mother; his willingness to work with the extended family; and

his high level of involvement with the children.    The mother acknowledges none of this.

Instead, her testimony suggests that the father was not there for the children and that he

abandons them for babysitters when he was working. She suggests he has been involved in

relationships which are detrimental to the children despite his obvious high level of

involvement and interest. This represents exactly the type of situation where a 50/50

sharing of custody traditionally does not work. Indeed, were.we to implement such an

arrangement we are satisfied it would not be in the best interest of these children.        There

is also the matter of the mother's decision making. Restricting ourselves to the two years

preceding our hearing, the mother has entered the father's home unauthorized, stolen

property from that residence, required the father to seek a PFA simply to protect his

privacy, received a DUI charge and repeatedly made questionable decisions in most aspects

of her life where relationships   (including her relationship with the children) are concerned.
                                                                           Circulated 04/29/2015 11:17 AM




 matter what efforts the father (or the mother's extended family) would make they would

 not be enough.

          The reality is that rather than a 50/50 sharing of parental duties these children need

 a parent who is in charge. That parent has to be the father. Fortunately, the father is well

 positioned to accomplish the role. He has made considerable       adjustments with his work in

 recent months which allow him to be home much more with the children.          He is in all other

 respects willing and able. He is willing to work with the mother (as best anyone can)

 whatever Order the Court enters in spite of the mother's undermining his attempts at new

 relationships and generally making a nuisance of herself in his personal life.

          Children need stability, permanence, consistency, and support. They also need to be

 kept out of custody cases. They are not getting that under the present arrangement.

Unfortunately,     the mother's unpredictable behavior extends to them. Recently, the mother

has returned the children to the father on two occasions because of her inability to adjust to

behavior by the children she did not approve. This included most recently returning

A.   S,       to the father together with three bags of her clothes on Thanksgiving Day as a

punishment.      The message that is sent by such an action is not one of discipline but rather

one of rejection. This type of impulsive action by the mother is the rule and not the

exception. One need only read her E Mails to the father (of record in the case) and listen to

her testimony to see how fixed her views are and how impulsively she will act on them.

While we would never accuse the mother of being deliberately physically dangerous to the

children, we have no hesitancy in declaring her behaviors dangerous to their mental health

and well being.
                                                                           Circulated 04/29/2015 11:17 AM




         For all of these reasons, we reach the same (unfortunate) conclusion that the father

 reluctantly offered. That is, that the mother's time with the children must be reduced

 given the consistent stability, permanence, and support children need.

        This decision is regrettable and unpleasant. We are aware the mother has

 supportive parents and siblings who would offer every assist. However, we cannot help but

 observe that this same extensive support system was in place when she committed every

 single misjudgment which has occurred in the approximately two and one half years

 leading upto this hearing. Simply put, the mother is unable to control her behaviors

 notwithstanding a support system which is there to prevent them.

        Finally, we interviewed A.S,          That interview (unfortunately) was also·

 revealing of the mother as we described her. It was clear A . .S.      did not want to be

interviewed.   She was clinging to her mother as tightly as her mother seemed to be clinging

to her as we approached her. She left her mother's side only when she was advised by the

mother that the Court was "on our side." Given A. S.           's level of fear, we needed to

know why she was afraid. We asked A, S.            what she thought we would talk about.

She told me "you just want to meet me" and to discuss with her "where she would be

residing."   Of course, those of you in the room (Counsel and extended Family) will recall

that we did tell everyone we wanted to "meet A.S,          " but we would not be discussing

with A~S.         where she wanted to live. There is no nuclear rocket science involved in

concluding the mother planted this seed with A. S.~__ ; None of this is surprising as we

have observed the mother: She clearly has trouble interpreting what she hears and

maintainingclear thinking.

       Unfortunately, we acknowledge our decision will undoubtedly be hard on the

mother. Much like the father when he testified that he was pleased to see-the mother
                                                                           Circulated 04/29/2015 11:17 AM




involved in new male relationships because they could make lier more stable, we suspect

the children provide an anchor for her as well. However, our test is not what will help the

mother - our test is what helps the children. We would recommend to the mother that she

counsel so she can function more appropriately and become a better role model for the

children.   If there is to be growth in the ability of the mother to offer these children some

level of consistency it lies in getting help.

       Accordingly, consistent with all of the above, we enter the following Order.

       1. The father shall have the legal and physical custody of both the parties' minor.

       children.

       2. The children shall reside primarily with the father.

       3. The mother shall have periods of partial custody every Wednesday during the

       school year from 3:30 p.m. until 7:00 p.m ..

       4. During the summer months, when the children are out of school, the mother shall

       have every Wednesday from 9:00 o'clock a.m. until 8:00 o'clock p.m ..

       5. The mother shall have partial custody from 3:30 p.m. every other Friday until

       Sunday at 6:00 o'clock p.m. year round.

       6. The mother shall have one week of vacation with the children in the summer

       where her regular weekend visitation will be extended from Friday at 3:30 until the

      following Friday at 3:30.

      7. The parties shall share Holidays by agreement. However, in no event will the

      mother have less than four hours with the children on the Holidays of Christmas,

      Thanksgiving,    and Easter. Memorial Day, the 4th of July, and Labor Day will be

      rotated. In odd numbered years the mother shall have Memorial Day and Labor

      Day from 8:00 a.m. until 9:00 o'clock p.m. The father will have the 4th of July
                                                                      Circulated 04/29/2015 11:17 AM




 Holiday. In even numbered years the father will have Memorial Day and Labor

 Day and the mother will have the     4th   of July from 9:00 o'clock a.m. until after the

 fireworks when they would be returned to the father.

 8. Transportation shall be shared with the party having the children to drop them

 off at the drop-off point. Transfers shall take place at a public store such as~

 Sheetz convenient to the parties by mutual agreement.        Both parents may designate

 an adult to perform transportation if their personal attendance is prohibited.

 9. The children shall be with the mother on Mother's Day from 9:00 o'clock a.m.

 until 6:00 o'clock p.m. and with the Father on Father's Day from 9:00 o'clock a.m.

 forward. The schedule for these days will take precedence over the normal

 schedule.

 10. The children's birthday will be spent with whoever has the child on that day.

11. Each party shall keep the other informed of their current address and telephone

number.

12. Each party shall have access to school performance and medical care which shall

be done through the schools and the medical providers who are directed to provide

the information to both parents.

13. Neither party shall engage in any conduct which presents to the children a

negative or hostile view of the other, nor shaJJ they aJJow any third party to act in

such a manner that would hamper the natural love and respect of the children for

either parent.

14. The parties may decide different time arrangements and make decisions for the

children whenever they mutually agree to do so. Nothing in this Agreement is

understood   to limit or restrict the ability of the parties to mutually .agree on


                                            9
                    5933038                               JlJI:EE Q",RPENTER Circulated 04/29/2015 11:17 AM
                                                                                                       PAGE   11




      terms of this ~· agreement will be followed.
                          . . ;...   ·.~. ;:
      15. ALL HO::f.,fflAY
                .,,·._:,::.11f:'r:-:,,··
                                         SCHEDULES.
                                          •
                                                    SH..,U,LSUPERSEDE ANY OTHER TIME




     16. \~ijµ'rtON                      OF THIS ORDER BY ANY PERSON MAY RESULT IN CIVIL

     MrilCRIMINAL
      '\?{:'::.:::··<·.·
                         PENALTIES., INCLUDING PROSECUTION PURSUANT TO
       •   l~ ...




     sk:i;noN
      ........
               2904. OF THE PEN~SYL VANIA CRIMES CODE, INTERFERENCE

     'WITH CUSTODY OF CHJLDREN.

     17. Jurisdiction of the children shall remain with the Court of Common Pleas of

     Blair County, Pennsylvania, unless or until jurisdiction would change under the

     Uniform Child Custody Jurisdiction Act,

                                                    BY THE COURT,




SA




                                                     10
                                                                              Circulated 04/29/2015 11:17 AM




       IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY,                   PENNSYLVANIA

c.s.
                   Plaintiff

         v.                                         NO.     i007 GN 6039

TJS,
                   Defendant


         HON.    HIRAM A.    CARPENTER,    III   SENIOR JUDGE

        EDWARD ZAi'-iG, ESQUIRE                  COUNSEL      FOR PLAINT I FF

        TERRY DESPOY,        ESQUIRE             COUNSEL      FOR DEFENDANT



                                    OPINION AND ORDER

        This matter        comes before    the Court on request of the

Mother for an evidentiary              hearing to determine          custody of the

party's        children    - A,S.                        , born November       14,   2000

and .Y, S.                   , born February     21,     2006.      An evidentiary

hearing was held to a conclusion              on August       26,    2014.     The

record is closed and the case is ready                   for decision.

        Essentially,        the Mother    comes before      the Court        offering

that an order entered establishing               her as the primary            custodian

of the.minor        children would be in their best interest.                     The

Mother        offered a number of re~sons        why she believes            this is

true.     Although        the Mother's    present~tion      was somewhat        hard to

follow        (and inconsistent· in certain regards)             her "main"

argument        for a change in custody       is the Mother's         belief she is




                                                 -21-·
                                                                                                            Circulated 04/29/2015 11:17 AM




 more      available        to the         children                than    the         Father      due    to his           need

 to work       and resulting               use of babysitters                           to supervise             the

 children.

           In response,            while     the        Father            agrees         he     is required            to use

babysitters           and does         have        to work            as     the       only means          of

 supporting       the       children         financially,                    he does not                believe        a

change       in primary           custody          is        presently           indicated.               On the

~ontrary,        he believes               the present                arrangement                which     has     been

the order in the case                      since        our Opinion of January                            26,     2011

should       be continued            in     all     of its            particulars.

           As always, our paramount                           concern in a case whether                            it

involves       custody        or visitation                    is     the best               interest      and
                                                                                   (

permanent       welfare           of the children.                         Commonwealth              ex rel        Pierce

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

considerations              are    deemed         subordinate                to the            child's      physical,

intellectual,           moral and spiritual                           well       being.           In the ·interest

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

do not have a property                     right         in their            children.              Whatever            claim

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

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

generally       Commonwealth               ex rel            Children's                Aid     Society      v.     Gard,

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

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

In   Re:    Custody     of        Temos,      4~0 A.2d               111     (1982).             The clear          trend



                                                               2
                                                                      -22-
                                                                                                                   Circulated 04/29/2015 11:17 AM




 has     been     to     abolish            presumptions                 in custody              disputes.                  In

 children         custody             cases,         the    Court must continually                                hew to the

 polestar         of a child's                     best interest              eschewing               presumption                and

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

 Court should avoid                     mechanical                determinations                     and focus           its

 analysis         on     a close            scrutiny         of       all     particular                facts       relevant

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

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

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

 custody         hearing,         not as            of an earlier                   time.            In Custody             of

 Frank, 423 A. 2d 1229                        (1980).             Decisions              must be made               on the

 basis     of current             facts            and not         the       past        conduct         of      ~he    parties.

 In Re:     Leskovich,                385      A.2d        373     (1978).               The primary               concern         in

 custody         matters         lies not with the past but with the                                              present          and

 future.          Hooks     v.        Ellerbe,             390 A.2d           791 (1978).                  Facts        at the

 time     6f hearing            are the             foundation               for     the       determination                 of    the

 Court.          Augustine            v.     Augustine,               312 A.2d            477        (1974).           At

 hearing,         each     parent            shares         the       burden        of proving                 by a

 preponderance             of     the evidence                   that        an award           of custody              to       him

 or her wou~d serve                    the best interest                       of the child.                      Ramos v.

 Rios,     378     A.2d     400         (1977).             Continuity              and stability                  are

· important        elements            in a young child's                          emotional             development.

Commonwealth              ex rel           Jordan      v.        Jordan,           448        A.2d     1113        (1982).




                                                                         -23-
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                                                                              Circulated 04/29/2015 11:17 AM




            The· principles    enunciated    above are time honored             in

Pennsylvania           law.   More recently,     howev~r,       as a result of the

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

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

petition        for modification      of a custody order, the trial court

must perform a "best interest               of the child" analysis

considering           all of the Section 5328(a) factors.                 Those factors

are as follows:

                 1)    Which party is more likely to encourage
                       and permit frequent and continuing contact
                       between the child and another party:
                                                       .   ·-
                 2)    The present and past abuse committed by a
                       party or member of the party's household, whether
                       there is a contin0ed risk of harm to the child or
                       an abused party and which party can better
                       provide adequate physical safeguards and
                       supervision of the child.

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

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

                5)     The availability     of extended         family.

                6)     The child's    sibling relationships.

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

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

                9)     Which party is more likely to maintain                a ioving,



                                            4   -24-
                                                                                  Circulated 04/29/2015 11:17 AM




                         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, physic~l,  emotional, developmental,
                      educational and.~pecial  needs of the child.

                  11) The proximity     of the residences               of the parties.

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

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

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

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

                  16) Any other    relevant     factor.

            As the language     of the Act suggests,             these    factors     are    notI




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

   included      as part of    the analys~s.



                                      DISCUSSION

            At the butset,     we acknowledge     this     Court     also heard this

   matter     previously     at a custody evidentiary            proceeding         over

   three     and a half    years ago on December         2.1.,   2010    and December

· · 2 2,   2 010 to a conclusion.-·   ·We .i ncorpo r at;e 1:hcJ.t Opi n j on in its




                                            5
                                                 -25-
                                                                    Circulated 04/29/2015 11:17 AM




entirety as part of our current Opinion.              Indeed, based on the

record created     at the present hearing         that Opinion remains

extremely accurate     as to the issues in the case and,            given this

opportunity,     we would not change a single word of our earlier

writing   (notwithstanding     the passage   of almost four years) as

accurately     reflecting   the situation both as it existed then and

as ·it exists now.     In fact, most of the ~other's        presentation

involved a repeat of what we heard at that time.

      In updating    the matter, which is essentially        what occurred

at this hearing,     this can be fairly accomplished        using the

statutory custody     factors as our format.         Accordingly,     we

proceed to a discussion      of the individual       factors as the format

for this Opinion.

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

     This issue clearly favors the Father.             In fact,   the

Father's testimony     that he receives many requests for

additional    time beyond the every Wednesday         and every other

~eekend   time which is presently       ordered    for the Mother is

confirmed by her.      The Father's response        to those requests        is

telling as to his attitude.       Since the requests are numerous,

he evaluates    them on a case by case basis.          He tries to be fair

considering    what people are involved      in the extra time, what

activities    might be fuh for the children         with their Mother,        the



                                    6     -26-
                                                                                                                Circulated 04/29/2015 11:17 AM




 event     or situation             which         triggers                 the     request         for additional

 time,     and his          own plans            (if any).                  Frankly,            this     response            by

the     Father        is not only              reasonable                  but     comi~endable           given         what      he

is confronting               - namely;-actions                         on the part of the                       Mother

which      would make most parents                             "over         the edge"            and probably

involve         the police.               We     site        to two          specific            examples          from      the

testimony         which       are    typical            of          what this            Father        is forced          to

confront.            The first            is    the Mother's                     admission         she         appears       at

the    Father's            house    on numerous                     occasions            (and     randomly)             to get

the    children            off to school               even          though         the     children            reside       with

him.       To accomplish             this,            she     not only waits at                        the      bus stop

but goes        to the        Father's           home         and knocks                 on the        door.           In her

testimony,           the Mother            not     only         confirms             this        behavior         but

believes        it is justified                  as     "she          just        wants to         see       the kids''.

It could        hardly        get more           obtuse              than        that.          Despite         this     clear

invasion        of    his     privacy           and     his          own     demonstrated               ability          to get

the    children        off     to school               in an orderly                     fashion,         the     Father          is

remarkably           poised        and restrained                     in dealini            with        this.          The

Father     is    ~learly           sensitive            to the             Mother's         situation,             her

impulsive        tendencies,              and her             consistent                 behavior         which

suggests        she does not understand                               the        consequences             of     her

actions      (all      confirmed               by her        mental              health     records).

         For her       p~rt,        the        Mother,          while            offering         she would            "be

flexible",           has    shown     herself               to be anything                  but.         At hearing,



                                                            "" .7          -27-
                                                                                                    Circulated 04/29/2015 11:17 AM




 the Father         produced         Defendant's             Exhibits        #1 and            #2 as examples

of the       difficulty            in working        with      the     Mother.            The bottom          line

of these       exhibits            shows    that     when      the     Father        wished        to move       the

pick up. time         for the Mother               from summer              camp one-half                hour on

Friday       to allow       A.S.              to participate                 in a field            trip while

offering       one-half        hour        on Sunday          at the        time     of        the children's

return       (to balance           any     loss    of time) he met with                         resistance.

To encounter          that over such               a simple           change       which         could    be so

fairly       implemented           and was so well explained                        in counsel's             July

5,   2011     proposal       offers         a concrete          basis        for    a conclusion             the

Mother,       in fact,       lacks         flexibility          where        the children            are

concerned.           Nothing        has     occurred          since     that       incident         which

suggests       otherwise.             In fact,       the Father              offers        he has        "given

up" trying          to ask for           any flexibility              in the        order         so it is       all

on·his      shoulders        if any flexibility                  is to be achieved.

         That reality          which       the Father confronts                     is     certainly        a

large       (and justifiable)              reason        why he was resistive                      to counsel

for the Mother's             overtures            that       the Mother        be      used      more     during

periods.when         babysitters            are involved              than     she        is    presently.

In fact,      the Father testified                   he had attempted                     this     and it had

been a "disaster"              as he characterized                    it.      Thus,           the Father's

request      that    the     status        quo continue              to be the order                while       he

attempts      to achieve            what flexibility              he can working                  with the




                                                         8
                                                                -28-
                                                                                          Circulated 04/29/2015 11:17 AM




Mother     while    at the same         time having         some control            over the

situation makes          sense.

      2)  The present and past abuse com,~itted by a party or
member of th~ party's hou s eho Ld, whether there is a continued
risk of harm to the child or an abused party and which party
can better provide adequate physical safeguards and su;perv:i~ion.
of the child.

        Neither    of    these parents         claims       that     abuse     is    a major

issue     in the case.        The     Mother does,          however,      question             th~

safeguards       and supervision           provided       by the Father in his use of

babysitters.        In    this      regard,    the Mother           has not     hesitated                to

be an active       intervenor         by going       to   the      Fath~r's·horne           (without

permission),       checking       on __ who   is doing       the babysitting,                  and on

at least     one   occasion       per   the Mother's             testimony      getting             "into

it" with the mother           of one of the babysitters.                      All this              is

again indicative          of the Mother's            impulsive        behavior           and lack             of

consideration       of the consequences               of that behavior.

        Seen from       this perspective,            the Mother's         intrusiveness

makes     this   more difficult         for    the    Father        in attempting              to

achieve     an orderly      situation         for the      children       while providing

the supervision          necessary      for    him to work.            Indeed,           the

Mother's     interventions          seem to know no boundaries.                          Even the

day of this hearing           she    had been at the Father's                   home as             the

children     were leaving         (since      it was      the first       day       of    school)

without     permission      and unannounced.               While this may                or may not

constitute       some form       of abuse     by the       Mother,      this        type       of



                                                9
                                                          -29-
                                                                                                Circulated 04/29/2015 11:17 AM




 interventi6n         by    her is both typical                 and     viewed       by the Mother            as

appropriate.           The Father        deals with it                as    best     he can while

offering_      that    the Mother's          unannounced              appearances           do make

AJS,            3nxious       - especially        since           the visits can be

accompanied       by argumentative              beh~vior.

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

       While     the parties          were     together           (prior      to our 2010

hearing)      the Father supported               the Mother's                primary       role.

Presently,      the        Father    clearly     performs             all    duties       and there          is

nothing      to suggest the children                  are       neglected          in any way or

have any issues in his hous~hold,                          at    school       (where       both are

remarkably      successful),           or with their babysitters                          from     his

perspective.

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

       This factor favors the Father overwhelmingly.                                        The

children have now spent                the majority              of their school                time     in

the primary custody             of their       Father.            All of their stability

revolves     around his household               and,        in fairness,             the established

visitation      schedule        with their Mother.                    While        the    Mother       offers

that   the children           need    family    and     religion and that                   they       are

not getting      the latter, the fact                 is        she   does     not       take    them    to

church when she has them on Sunday herself                                   as she testified.

As to the      performance           of parental        duties,             no claim       is    made by



                                                 10         -30-
                                                                        Circulated 04/29/2015 11:17 AM




the Mother that the Father is not providing                 adequate    care in

any specific regard.

      While we will discuss the Mother's                mental health    issues

later in this       Opinion,     it is more than fair to say those

difficulties       impact dramatically       the stability     and continuity

which she could offer the children.               Indeed, basic concerns           as

to the children being where they need to.be, when they need to

be there, and with the appropriate              tools for the event are all

issues were they in their Mother's              care.    In fa~t, the Mother

demonstrated       real difficulty     simply staying focused and on task

in response to counsel's           questions    (this is repeated       over and

over again in the record).            Her inability      to stay on task on

any particular       current issue as opposed to relapsing              into old

themes and behaviors           (all of which occurred prior to our

December    2010 hearing)       was the overwhelming       impression

listening    to her testimony.         In fact, the Mother       clearly

believes    everything    which occ~rred        since 2010 was contrary          to

establishing       stability    and continuity     for the children       and was

based on lies,       alterations    of court records,       her being taken

advantagi    of by counsel, and her being manipulated             by the

Father through the court system.               Her beliefs in this regard

are fixed and unchanging. _ We heard them in detail               in December

2010 and listened       to them repeated        (no matter what the original

question    was)   again and again at our hearing.            It is hard to



                                        11      -31-
                                                                     Circulated 04/29/2015 11:17 AM




believe a mother     so fixated and suffering          from the obvious

intellectual     deficits   from which this Mother suffers with

resulting    impulsive    behavior   could provide      stability    and

continuity     for children of this age.

     Beyond that, primary        residential     custody for now could be

fairly decided without more on the basis the Mother does not

presently    have a home in which the children could be placed

even if the Court were inclined to do so.              Her present

residence    is red tagged and she offered           no specific plans for

moving    to another property     which she owns in Hollidaysburg

located near the Father.        At·hearing,      she testified      both ways

in response     to questions    regarding    the children's    schooling.

First, she offered       she would use Baker School at her present

residence    while later offering      she would fix the home up in

Hollidaysburg     and move there so the children could maintain

their present     school district     in Hollidaysburg.       This type of

presentation    is not reassuring      when the home where she has

resided the past twenty-five         years is presently     red tagged with

no explanation    by the Mother how or why she allowed that to

occur or what plan she has to remedy the situation.                 tompared

to the Father's     stable residence,       the alternative   offered by

the Mother is chaotic to say the least.

     5)      The availability    of extended     family.




                                      12
                                              -32~
                                                                                                   Circulated 04/29/2015 11:17 AM




          Both       extended          families      are       available         and important          to the

children.             While hone          of the extended                family appeared             at our

hearing,         we have         every     reason to believe                    they are interested

and (especially                on the Mother's                 side)     supportive        of these

children         (if     not     the    Mother's          custody        of them).

          6)         The child's         sibling relationships.

       The children's                  sibling relationship                 involve        entirely        their

interaction            with      each    other.        The Father           resides        with     the two

children.             There      is    no one      else        residing     in his       residence.           The

Mother         has had significant                 others        in     the past but        presently

resides alone             (except        when the children                 are with her).              The

children         spend        all of their time                with their Father             together         as

well   as the Mother's                  visitation          periods.            We heard     nothing         to

suggest        the     relationships              between        them     are not     normal        and

appropriate            between         a girl entering                 eight~    grade    and      a boy

entering         third        grade.

     ~)   The well-reasoned preference                                    of the child, ba~ed on
the child's maturity and judgment.

       We did not              interview        the children              in this     case at the

request        of the     parents.           We agree with                that decision.              Frankly,

this   is not          (and may never be)                 a child         preference       case.

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




                                                                  -33-
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                                                                  Circulated 04/29/2015 11:17 AM




      While neither parent made a claim the other parent was

 trying to turn the children against them, the Mother's              behavior

 of appearing    at the Father's household        uninvited,   unexcused,

and remaining     there even after being requested        to leave on some

occasions    certainly   create a possible       issue in terms of both

parents'    relationships    with the children over time.

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

     As to maintairiing a loving relationship,           both of these

parties are committed       in that regard.      The problem where the

Mother's    request for primary    custody is concerned        is .that there

is no real basis to believe       the relationships      if she were

primary    custodian would be stable, consistent,         and nurturing.

The Mother is so caught up in her own issues, bogged              down by

her own difficulties,       and unable to maintain     structure     (even

when testifying    in a court environment)        that she can make no

case she would be remotely equal to a Father who demonstrates

all those qualities      in abundance.    In fact,    the Father's

stability    at work, consistency    with the children,        and tolerance

of many of the Mother's behaviors        while acknowledging       the

children    enjoy their time with her all speak to his superior~ty

on this issue.

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



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         This is clearly           the Father for all              of     the reasons       stated

to   this      point     in this Opinion           (and the additional               reasons     which

will     follow    later).         In fact, there          is no suggestion             by anyon~

the children's           needs     are not    being met           presently.          Further,

there     is no claim        the    children       have any special needs beyond

those needs children               in their age          group would         normally

experience.

         11)     The proximity of the residences                        of the parties.

         In terms of the present              custody arrangement,                  distance       is

not a factor           in the case since           it appears           to limit neither

party in        implementing       the current           schedule.          If the    Mother

moves     from Altoona        closer    to the Father,              while      this may cause

an increase        in problems        for    the    Father        in maintaining         his

household        (due to    the Mother's           invasion of it)             it   would    not

impact      a custody      schedule.         Of course,           the   Mother's      inability

to move into the home in Hollidaysburg                            would    be an issue

regarding        the children       attending           school     there    and their

situation       become somewhat         problematic          were       we to transfer

custody        since we do not really know                 where th~ Mother             would

actually       reside.

     12) Each parent's ability to care for the child or
ability to make app~opriate child-care arrangement$.

        The Father is· well grounded                    as to what        he must do to

maintain       his household.          It is apparent he is                 devoted      to the

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children      one hundred     percent     when he is not working.

Otherwise,      a combination        of school,        daycare,         camps,     and

babysitters      fill in     the blanks.

       From the Mother's          standpoint,      clearly            she is basically

available      for the children         full    time    and seems to possess the

ability to      use family     members     and others when necessary.                      None

of this appears         to be inappropriate            in any particular.

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

       The Father       appears     before the     Court        (just as he did in

December      2010)    as remarkably      restrained        in dealing           with this

Mother and      willing    to continue         on that course.             Meanwhile,       the

Mother     continues     her same patterns         described           in our earlier

Opinion      of disregarding        the Father's        role,     invading        his

privacy,      ahd generally making         a nuisance           of herself        in his

household.       All the·while,         she continues           her    fixed belief that

she   has somehow "been abused".           by everyone           involved        in this    in

terms of denying        what she views as almost her right tQ custody.

We do not see this changing             so that        the key to positive

interaction      between    the parents        falls on the            Father despite         the

fact the     Mother's     actions    do not always         recognize         his

significance.         One change from the earlier hearing in the

Mother's     testimony     was that     she several        times        referred to the



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Father as a "good dad"·.       This admission    was not forthcoming

from her earlier when we heard the matter           in 2010.

Notwithstanding,     what might seem to be some progress         in her

recognition     of the Father her actions speak louder than her

words that the Father still stands accused of everything

contained     in our earlier Opinion.

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

     Frankly, this issue       (without more) would cause the Court

grave concern were we required       to place these children        with

their Mother     (let alone placing them there when the Father is

behaving    positively) .    The Mother, by her own descriptions,

suffers from ~DHD,     PTSD, and trauma from her 1985 motor vehicle

accident    at age sixteen.     While.the    ADHD and PTSD were not

established    as the diagnosis    in the medical    records, the

impulsive behavior,     acting without      regard to consequences,        and

disorganized    thinking    on the part of the Mother which are

documented    in the mental    health records were on full display

both through the Mother's       testimony    and reviewing   her actions

where the children     are concerned.       In this regard, this Opinion

is almost cruel to th~ Mother       in that we do believe       she wants

to do none of these things and is,          in fact, well intended

toward the children.·       The fact this is our.belief,       however,

does not change the fact the Mother         is simply unable to perform




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in a manner which demonstrates              acceptance       of the present

situation,     support of the Father, or             (lacking the first two)             an

ability on her own part to truly serve as primary residential

custodian    at this point in time together                 with the Father.

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

      Consistent      with the above, it is apparent               the current

situation    should be maintained.               When everything        is considered,

not only does the Mother fail to demonstrate                    her own capacity

to serve as primary          residential        care parent but there is a

clear showing the children are doing well in the custody of

their Father     (babysitters notwithstanding).                 In fact, we

believe    to change residential          custody now would be little more

than disastrous       since we would be removing              the main source of

stability    from the children's          lives.         Accordingly,    we affirm

the current order in all of its particulars.

     In taking this action, we recognize                    this continues the

Mother's    present    difficulty       which she expressed        at hearing that

the Father is limiting her Wednesday                night visits by scheduling

a cheerleading       camp for    A.S.            on Wednesday     evening.       While

this is regrettable,          the Mother's       claim that this is something

deliberately    set up by the Father is simply untrue.                     In fact,

the Father outlined          in detail the importance           of competitive

cheerleading    to    A.S.   and how the combination            of changing teams



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                                           18
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and the coach                  changing        nights evolved                  into a situation                     where

beginning             this. s umme r A,S,' · s practices                        were       scheduled              on

Wednesday             night.          Given       that     reality,            the Father                (because        of

his     work)         could      not get A.$ ..            to the Wednesday                   practices                so if

he offered              the    Mother       a different               night         than     Wednesday

A.S.                  simply      cannot        go to cheerleading.                          In     effect,            he gave

the Mother              the    choice       as to        whether         or not A.S.                           would      go

by leaving              it on her          night.          It    would         be    easy enough               for

A,S,               to simply            be removed from competitive                                cheer leading if

this      is    the      Mother's          wish     on her           evening.          We affirm that.                        It

seems      to us         the    Father         is empowering               the Mother              to make           the.

decision         how      her evening             with      the       children         is spent.                 If we

give      the Mother            a different              night,        A.s.·                 cannot         go to her

cheerleading              in    any     event       since        the     Father        cannot            get    her

there.          It is         about     that      simple         and we         leave it to the Mother

whether         A; S,               goes       to cheerleading                  or whether               she does not.

At hearing,             although          we    invited          an alternative                   solution,            no one

offered one.

          In closing,            as    we noted           in .December               2010,        this is an

extremely          difficult           Opinion           to write.             No fact            finder or Court

could take            pleasure         in confronting                  this         Mother        with      the      harsh

reality         of her         own behavior              when,       in fact, we are convinced                                she

has    very      little         control        over       it due        to     her     mental            health

issues.         · However,        we cannot              change        the fact            that     custody



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opinions      are about the best       interest of children          and not         in the

best      interest   of a mother who clearly needs to be affirmed                      and

feels she has been taken          advantage        of by everyone     involved        at

every     opportunity.     The best we can do for this             Mother       is

affirm .that     we believe     her   intentions      are good.     Her

performance      and actual     demonstrated       abilities,     however,

establish      overwhelmingly     that the best        interest of the         children

lies with      remaining   in the primary      residential        custody of their

Father.



                                         BY THE COURT:




FILED:
ajh




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