J-A05015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

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


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

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

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

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

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

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

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

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

restate them.

       Father raises two issues for our review:

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


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

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

(Father’s Brief at 4).

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

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

                                  *    *    *

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

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

                                      -2-
J-A05015-17



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

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

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

        § 5328. Factors to consider when awarding custody

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

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

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

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

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

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

           (5)   The availability of extended family.

           (6)   The child’s sibling relationships.

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

           (8) The attempts of a parent to turn the child against
           the other parent, except in cases of domestic violence

                                    -3-
J-A05015-17


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

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

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

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

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

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

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

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

            (16) Any other relevant factor.

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

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

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

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

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

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

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


                                      -4-
J-A05015-17


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

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

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

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

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

opinion comprehensively discusses and properly disposes of the questions

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

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

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

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

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2017




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




        IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY,                            PENNSYLVANIA

     M.~.
                           Plaintiff

          v.                                                       :NO. 2006 GN 2267
                            .'
                            )

                           Defendant


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



                                              OPINION AND ORDER                                        f'...)
                                                                                                       0)

         This matter comes before the Court for resolution                                   of all

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

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

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

testified           to their positions            regarding       the   primary custody            of

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

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

presently           closed.

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

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

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

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

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



                                                         1
       Historically,     the parties'      custodial        arrangement is unusual

in our experience.        Both parents      agree their relationship          never

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

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

endured a separation        from a long term relationship              with another

man.     This developed     into a situation         (for different reasons

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

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

Mother estimates       this as more than two years while               the Father

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

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

quickly    evolved by early     2006     into essentially        a fifty-fifty

custody arrangement.        That fifty-fifty         relationship has continued

in various    forms through     our December 30,            2013 hearing.

       Presently,   the Mother      comes before the Court offering her

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

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

fifty relationship,       the Mother believes          the custody arrangement

should be that she has primary            residential        custody with the Father

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

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

Father two days     (with    overnights)        centered around his work

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




                                            2
this were accomplished,                   the Mother believes               the present

corrununication         difficulties            which     she is experiencing           with the

Father      since their last agreed                    order     in November     2012    and the

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

resolve.       The Mother believes                    these issues         of communication        and

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

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

suggests)      is now.

        In response,            the Father        acknowledges         he also would like to

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

fifty-fifty        relationship               which    has been     the parents' history

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

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

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

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

solve      the parties' existing                 communication         and control       issues by

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

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

under      their present fifty-fifty                     arrangement        so daily transfers           are

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

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

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

should be the primary residential                             custodian    with the Mother




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

positions.

        As always,           our paramount            concern    in a case whether             it

involves           custody    or visitation            is the best       interest       and permanent

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

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

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

and spiritual              well being.          In the interest of Tremayne                   Quame

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

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

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

best interest              of the children.             See generally         Commonwealth           ex rel

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

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

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

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

custody        disputes.          In children          custody     cases,     the Court must

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

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

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

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

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

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




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

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

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

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

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

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

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

foundation           for       the determination           of the       Court.       Augustine       v.

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

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

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

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

stability are important                     elements in a young child's emotional

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

(1982}.

        The principles                 enunciated        above     are time honored          in

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

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

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

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

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

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

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



                                                           5
     between   the child and another party.

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

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

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

5)   The availability    of extended family.

6)   The child's    sibling relationships.

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

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

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

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

11) The proximity    of the residences of the parties.

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

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



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

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

             16) Any other relevant     factor.

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

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

included    as part of the analysis.

                                   DISCUSSION

     At the outset of our discussion,           and before entertaining   the

statutory    factors as the primary format for this Opinion and

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

positions.

     As we discussed     with the parents at our hearing, virtually

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

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

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

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

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

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

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

pendency     of elementary    school when the parents see changes in

themselves     and their situations    which cause them to conclude one

situation     or the other is probably better for school and activity



                                        7
purposes.      Those few fifty-fifty            relationships which survive

elementary     school are probably most frequently               altered when the

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

that either precipitates         an agreement        or brings them to court for

a determination        which almost inevitably         disrupts the fifty-fifty

custody    arrangement.

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

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

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

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

pressure     which exists    regarding         the fifty-fifty custody

arrangement     in terms of its appropriateness            seems to center on the

inability of these parents            (undoubtedly     increasing in part because

of this custody litigation during the past year)                   to communicate

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

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

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

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

believe     the Father is correct.

        That said, the positions         of the parents come clearly into

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

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




                                               8
Conversely,         the Father believes                     the fifty-fifty               arrangement

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

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

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

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

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

Father     that longer             periods             of custody       would probably           be

beneficial.           This       is      consistent         with her presentation                    if not her

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

fifty-fifty         custody arrangement                     which       has represented              the norm in

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

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

         Unfortunately,               in making this determination                        there are some

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

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

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

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

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

other     fathers.           Although             each parent gives a differing                       version as

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

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

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

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




                                                                9
otherwise    under those circumstances.              This meeting, however,

beyond dividing        the Mother      and Father further, apparently had some

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

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

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

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

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

to the statutory         factors as enunciated        earlier in this Opinion at

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

discussion.

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

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

parties were never married             and their relationship was essentially

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

in our view) successfully             maintained   a fifty-fifty relationship

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

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

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

so.

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

reasons this hearing was probably necessary became more and more

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




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

the importance       of the other, they have lacked flexibility in

certain limited respects.           Each of the parents recounted to us

individual       events where they believe the other failed the test of

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

she believes       she has not been fully advised of certain medical

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

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

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

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

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

        These examples,    which we would view generally in the context

of a custody litigation       as minor obstacles, have become major

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

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

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

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

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

brings her petition.

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

in several of the instances         which the Mother raised he probable

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




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

arrangement    if we can fashion an arrangement which reduces the

tensions that are exacerbated         presently   by daily transfers.

       Our issue is far more subtle than whether these parties would

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

greater question     is whether these parents can achieve flexibility

and resolve communication         and control issues sufficiently    for the

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

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

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

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

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

allegation    of abuse by anyone against anyone either past or

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

wife           } as perhaps      (although not intentionally)   disturbing

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

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

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

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

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

impossible.     In fact, the flexibility already demonstrated by



                                        12
these         parents    in reaching            and maintaining         a fifty-fifty

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

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

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

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

litigation.

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

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

of the parents            seems      to have         participated       in all aspects        of

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

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

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

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

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

school         conferences       and medical           (notwithstanding         the recent

complaints         the Mother          has made).

         This     particular         strength - namely, the involvement                   of both

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

a fifty-fifty            relationship            which undoubtedly         has contributed

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

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

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

disruption         in the fifty-fifty                 relationship       will   inevitably         change



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

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

duties will be performed.

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

          This is an important         factor        in the case from several

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

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

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

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

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

and increasingly          as a child moves toward the teen years and

adulthood     so the child's         own agenda becomes increasingly                   important

as a factor.

      In considering         this factor, we also               acknowledge the parties'

fifty-fifty      historical        arrangement        has not been truly consistent

either.      The parents have at various times done                        alternating     four

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

what amount      to daily transfers during the school                        week and an

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

and thrive      in all these changes.

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

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

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



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

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

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

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

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

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

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

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

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

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

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

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

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

so already)     affect him.

     5)       The availability of extended family.

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

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

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

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

closest    residing     in Pittsburgh,      he is apparently a frequent

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

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

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




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

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

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

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

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

Mother's brothers.

       6)     The child's sibling relationships.

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

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

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

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

primary residential           custodian           of the other two children with their

fathers enjoying periods of partial custody.                                 The joinder of

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

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

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

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

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

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

particularly       influence      us and the situation                     (testifying) might not

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

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

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




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

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

confirm that as even the Father indicated              he believed these

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

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

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

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

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

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

would be one of the positives.

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

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

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

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

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

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

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

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

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

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

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

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

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



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

significantly     involved   in a decision of this magnitude.

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

         This is another area of almost remarkable strength between

these· parents.     While they were critical of their relationship

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

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

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

concerned.     Clearly,   the Father believes      his work ethic

demonstrated    through his long term employment with Houtzdale                   State

Correctional     Institution   as well as his wife's military background

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

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

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

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

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

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

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

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

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

difficulty    following the rules entering his household as just that

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




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

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

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

It seems the Mother achieves a successful integrated                     household

when the children        are together in a responsible             and loving

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

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

are undoubtedly       differences    in the households,        these differences

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

present time.

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

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

Clearly,    as this    Opinion    suggests throughout        each of the parties

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

capability     of maintaining     a loving, consistent,            stable and

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

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

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

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

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

present    time.      Our interview with him developed             little on that

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




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

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

about his emotional         needs and be able to make more                reasoned

decisions     than we are in a position              to do presently.

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

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

essentially     successful       is what     is our alternative.           The Mother

comes before     the Court with the direct                 response that the correct

alternative     is her achieving primary residential                   custody.      The

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

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

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

did he suggest        he was the superior primary residential parent if

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

from a factor        finder's perspective           our hearing was somewhat

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

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

prepared to discuss         their respective          positions      as to continuing

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

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

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

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

of time talking        about how his household              is superior    to the




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

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

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

Mother as a primary          residential        custodian    nor does it adequately

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

communication        problems    and control issues which everyone agrees

are the primary         source   of difficulty          presently.     This leaves the

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

record    in those regards and especially                 if we make a final

determination        as to primary residential             custody.     This is

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

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

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

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

recently married         also complicates            the situation    since this is a

major change to his situation.

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

continue to be attempted            with modifications         designed to assist the

control    issues and communication              problems which       represent the only

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

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

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

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




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

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

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

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

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

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

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

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

which     he should            reside   if we terminate the fifty-fifty

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

While we acknowledge                this reality, we are uncomfortable              choosing

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

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

hold     a hearing which            emphasized     the comparative         strengths and

weaknesses        of each household           far more than the record we created

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

our    view the       fifty-fifty         relationship     should   presently     be

maintained         (although        altered   to try to improve        the situation for

everyone).

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




                                                   22
       Everything     we have said on the preceding            factor would apply

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

this issue.

       11)    The proximity    of the residences         of the parties.

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

the parties      reside only several blocks apart within easy walking

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

that they are even more accessible               in the same town envirbnrrient

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

changes      of school district,    church or activity structure for

A,fa\.~.   are implicated.

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

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

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

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

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

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

to make appropriate         childcare   arrangements when those are

required.

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




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

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

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

all     of its alternations          and the reality these changes have made

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

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

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


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

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

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

unreasonable)         that the communication           problems         and control           issues

have reached the point             where the fifty-fifty               relationship           cannot

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

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

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

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

parties     cannot resolve         their communication               issues and control

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

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

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

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

subject      to so many transfers         and exchanges that the parents'




                                                24
problems     are necessarily            exacerbated    and we believe unnecessarily

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

this easier.

         When we questioned         the Father specifically       as to why he

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

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

erroneous.      Specifically,           we assumed when the Father wanted this

arrangement     his work schedule            (rotating two days off involving

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

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

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

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

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

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

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

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

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

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

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

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

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

between    parents who have communication               problems and control issues

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




                                              25
            In fact, weekly transfers will almost assuredly make this

 better           and we intend to implement them immediately              with exchanges

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

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

 repetitive           transfers and resulting changes in his situation                    which

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

 him over an extended              period     of time and especially while the

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

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

 between them with opportunities                    for tensions to arise.        Phone

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

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

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

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

 school and sports              schedule     they are both actively       involved.           That

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

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

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

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

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

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

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

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




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

accomplishes                          that same purpose     should suffice to maintain an open

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

probably needs a hearing                            at which our focus would be which

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

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

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

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

matters do not improve with the implementation                                     of longer periods

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

status quo into the future.

        We acknowledge                       this decision may be something of a

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

the appropriate primary                            residential    custodian.       We are simply

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

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

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

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

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

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

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

         This is not particularly                           an issue in the case.




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

        This is not particularly              a factor in the case.

        This concludes         our discussion        of the statutory factors.      We

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

 relationship         with significant        alterations    (to weekly exchanges

 from the present schedule)              represents      the best alternative to test

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

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

 we invite them back and we will certainly hear their positions

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

 breakdowns         in communication      and control.       They are inevitable at

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

 of their last agreement            in November 2012 which included the

 Father's marriage          appears to have exacerbated the communication

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

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

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

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

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

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

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

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

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



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

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

     1.   The parents    shall share the physical and legal custody

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

          Residential    custody of the minor child shall be shared.

     2.   The time arrangements     for the Plaintiff and Defendant

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

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

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

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

                Sundays, with the Mother's            first week to commence

                Sunday, February 16ili,       2014.

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

                Order leading up to January 12th with his Mother.

                We understand    this will be a partial week which

                unnecessarily    exists due to the date of our Order.

     3.   Holidays   -

          a.    Christmas   - In even numbered years, the Father

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

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

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

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




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

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

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

     26~ at 3:00 p.m.

b.   Thanksgiving   - In even numbered years, the Mother

     shall have the minor child the day before

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

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

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

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

     the Father shall have the minor child the day

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

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

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

     Thanksgiving   at 3:00 p.m.

c.   Memorial   Day and Labor Day - In even numbered

     years, the Father shall have the minor child from

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

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

     years, the Mother shall have the minor child from

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

     p.m. on Memorial   Day/Labor Day.




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

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

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

          years, the Father shall have the minor child from

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

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

          have the minor child the Saturday before Easter at

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

          numbered   years, the Father shall have the minor

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

          Easter Sunday at 7:00 p.m.

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

          Mother shall have the minor child from December 31st

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

          numbered years, the Father shall have the minor

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

          pt at 7:00 p.m.

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

     reasonable   times and intervals when the child is in the

     custody of the other parent.

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

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

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




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

      birthday     shall celebrate     the child's birthday with the

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

      birthday     shall celebrate     the child's birthday with the

      child on the next date that they have custody.

7.    Transportation     to and from the place of physical custody

      with the subject minor child shall be shared by mutual

      agreement    of the parents.

8.    If either party is unable to exercise their physical

      custody rights at any point and time,        they shall provide

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

      other party in the absence of an emergency.

9.    Each party shall keep the other informed of their

      current address and telephone number.

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

      health, progress     in school, school activities and

      general welfare    and shall consult the other parent

      concerning    major decisions     affecting the child, to

      include education,     religious training    and medical

      treatment.     If an emergency or illness requiring a

      physicians    attention   should occur to the child while in

      their physica~    custody, each party must notify the other

      party.




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

      health care providers,       or other relevant sources,

      information    concerning    the child.

12.   The parties shall not argue or engage in heated

      discussions    in the presence       of the child.

13.   Neither party shall engage in any conduct which presents

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

      nor shall they allow any third party to do or say

      anything that would hamper the natural love and respect

      of the child for the other.

14.   Each parent shall encourage         the child to comply with

      this parenting    agreement      and foster in the child a

      positive view of the other.

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

      encourage,    prepare and have the child available at the

      designated    times and places so visitations occur

      smoothly.     Likewise,   the party exercising partial

      custody or visitation       rights should encourage, prepare

      and return the child promptly at the designated times

      and places.

16.   THE PARTIES MAY DECIDE DIFFERENT         TIME .ARRANGEMENTS AND

      MAKE DECISIONS    FOR THE CHILD WHENEVER THEY MUTUALLY

      AGREE TO DO SO.     NOTHING      IN THIS AGREEMENT   IS UNDERSTOOD




                                  33
      TO LIMIT OR RESTRICT       THE ABILITY   OF THE PARTIES TO

      MUTUALLY    AGREE ON ALTERNATIVE    PARENTING ARRANGEMENTS.

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

      THE CONSENT AGREEMENT      WILL BE FOLLOWED.

17.   ALL HOLIDAY SCHEDULES       SHALL SUPERSEDE ANY OTHER TIME

      ARRANGEMENT    UNLESS THE PARTIES MUTUALLY AGREE TO DO

      OTHERWISE.

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

      CIVIL AND CRIMINAL PENALTIES,       INCLUDING PROSECUTION

      PURSUANT TO SECTION 2904 OF THE PENNSYLVANIA CRIMES

      CODE, INTERFERENCE     WITH CUSTODY OF CHILDREN.

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

      Common Pleas of Blair County, Pennsylvania, unless or

      until jurisdiction     would change under the Uniform Child

      Custody Jurisdiction       Act.

20.   No party shall relocate the children unless every

      individual     who has custody rights consents to the

      proposed     relocation,   or the court approves the

      relocation.      Any party who desires to relocate with the

      children     shall first notify every other individual who

      has custody rights.        The party who desires to relocate

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




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

            Blair County Custody Office).

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

interest    under the arrangement         which we are presently         ordering.

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

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

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

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

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

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

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

you in the most important        testimony           which you have repeated

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




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

be necessary      to conclude an arrangement              where that is the reality

based on your own problems         of communication           and control rather

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

necessary     adjustments.

                                          BY THE COURT:




FILED:
ajh




                                            35
                                                                     Circulated 02/22/2017 04:47 PM




    IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA

   M.~.
                          Plaintiff

      v.                                            :NO. 2006 GN 2267

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



HONO_RABLE HIRAM A. CARPENTER,              III     SENIOR JUDGE

TERRESSA      E. GEORGE, ESQUIRE                    COUNSEL FOR

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

                                      OPINION·AND    ORDER

      This matter comes before the Court for resolution of the

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

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

the matter commencing October 30, 2015, which afforded both

parents the opportunity               to testify to their positions regarding

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

interviewed by the Court several months before the conclusion of

the school year which formally closed proceedings.                    After the

conclusion of these proceedings,                  the parties were then afforded

several months to determine whether or not a further agreement

could be reached between them which would have eliminated the

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

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

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

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

agreement                  now having been reached,      the record is presently

closed and the matter is ripe for determinatio~                       before the

Court.

              As the record will reflect, this Court has previously

authored                  a thirty-five    page opinion regarding the custody of

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

incorporate                  that opinion in its entirety in the opinion we

author presently                  noting that with respect to many of the matters

discussed                  in our January 30,    2014 opinion our views remain

unchanged.

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

parents                  have performed    remarkably   and steadfastly with respect

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

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

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

time of our earlier writing that some continuation of the

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

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

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

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



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

about the viability       of the arrangement.      Knowing this, we

invited the parties back before the Court should our tweak of

their fifty-fifty       arrangement   (which provided for fewer

transfers)    prove unsuccessful.

     Regrettably,       the parties   are now back before the Court with

that arrangement    having proved unsuccessful        in the view of both.

By hearing    the matter again in an additional        full evidentiary.

hearing commencing      less than two years after our January 30,

2014 evidentiary    hearing we honor our pledge to the parties that

they could    (and should) return should the arrangement prove

unsuccessful.

     While the pretrial narratives           of the parties emphasize that

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

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

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

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

           Because we have that perception         we will address the

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

first.

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

opinion    it should become apparent to them that while we believed

a continuation    of the fifty-fifty        relationship was best we

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



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

unsuccessful         was based on the simple           reality     that fifty-fifty

relationships         are rarely able to be maintained               forever.        We

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

repeat everything         we wrote earlier.            The eventual       "termination"

of fifty-fifty         relationships       for various reasons           remains the

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

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

"most"     cases.

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

outlined     in detail our experience              with fifty-fifty        relationships

and the types of events which typically precipitate                         a

termination         of the arrangement        while noting at page eight of our

opinion     that this case fit none of the traditional                     categories

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

the fifty-fifty         relationship       which brought      you before         the Court

was a problem         totally   between     you while the relationship               itself

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

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

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

co-parent     in a fifty-fifty           relationship     successfully.

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

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

occurring     prior to our 2014           opinion would improve communication



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

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

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

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

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

allowed for agreement.                Meanwhile,     the tensions between you as

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

_pol.ice involvement occurred with a resulting increase in

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

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

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

teenage years seems almost certain to trigger a reaction one way

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

and especially               the fact you both resided in the Tyrone School

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

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

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

the transport               either way by whichever parent was "a twenty

minute drive awayn is impractical                   generally and made even more

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

throughout     the school involving numerous evenings due to the

wrestling    schedule and his participation                in various clubs.

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



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

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

 primary       residential    custody.     We also believe the Father's

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

 designation       of a primary residential          custodian is no longer the

 appropriate       view.     Simply put, the history since January 2014

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

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

 involves custody or visitation             is the best interest and

 permanent       welfare of the children.           Commonwealth ex rel Pierce

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

 considerations          are deemed subordinate       to the child's physical,

 intellectual,       moral and spiritual well being.            In the interest

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

 not have a property          right in their children.         Whatever claim

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

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

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

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

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

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

 has been to abolish presumptions                in custody disputes.     In

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

 polestar       of a child's best interest eschewing presumption and


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

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

          a close scrutiny         of all particular         facts relevant to determining

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

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

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

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

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

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

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

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

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

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

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

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

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

          stability are important elements                 in a young child's emotional

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

          1113 ( 1982) .

                The principles           enunciated   above are time honored in

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

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

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



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

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

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

follows:

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

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

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

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

               5)   The availability    of extended family.

               6)   The child's sibling relationships.

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

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

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

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

               11) The proximity    of the residences of the parties.




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

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

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

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

             16)    Any other relevant    factor.

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

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

included    as part of the analysis.



                                   DISCUSSION

     With the determination         made that it is necessary         in

            best interest to determine        a primary residential

custodian,     we turn to the statutory       factors as the primary

format    for this opinion and order.

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

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

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

solidly    based on the remarkable       achievement by these parents,




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

    maintaining       a fifty-fifty         custody arrangement              fo~ ten years

    without much need for              outside     intervention.           Unfortunately,

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

    frequent     because       of    fundamental     communication           and coritro1    issues

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

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

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

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

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

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

            The above represented               our view of the party's            situation

    relative     to encouraging          and permitting            future contact.         At this

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

    been able       to achieve flexibility             and resolve        their control       and

    communication       issues        sufficiently        for.us     to believe with any

    confidence       that flexibility            will ever occur.



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

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

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

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

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

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

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

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

         parents            to make the decisions during           their   periods of custody.

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

                    Issues of abuse have never been present in this case.

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

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

         years is a continuation                of the poor relationship              which exists

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

         wife                          This has led to police        involvement         on at least

         two occasions.                Significantly,     neither of these occasions

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

         the wrestling               banquet where separate        confrontations         apparently

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

         the step-mother.                While these were certainly            unhealthy        for

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



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

 who specifically            should be the primary                    residential custodian.

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

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

 little to decide an issue such as primary residential custody.

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

 occurrence       would be a poor                 exercise of our discretion             and

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

 represent       "abuse" issues or simply the poor relationships

 existing between            these respective               individuals they do not serve

 as a primary basis for our determination                                  of primary residential

 custody.

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

         This issue continues                to be a strength f6r both patties.

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

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

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

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

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

 terms of their willingness                       to perform parental duties.             While.

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

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




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

involved    in those activities     in which he wishes to participate.

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

     This is probably      the most important     factor in the case as

it clearly represents      the area where the most change has

occurred    since our January 2014 Opinion.        As noted previously,

at the time of our earlier opinion these parties lived blocks

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

School District    not only is there a twenty minute drive involved

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

Father is designated      the primary custodial parent a change in

            school district     to Altoona becomes a veritable

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

be subjected    to numerous daily trips back and forth from Tyrone

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

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

distance    from his friends and social life with his fellow

students.     For these reasons,     the Mother would offer more

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

remain where he has always been at Tyrone.

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

the Altoona Area School District        or be exposed to significant

back and forth to Tyrone if the Father is primary residential




                                      13
           custodian           it becomes necessary                to ask a very important question

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

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

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

           remaining          in the Tyrone Area School District for numerous

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

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

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

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

           successful           (according to everyone}                 requires reasons.            Simply

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

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

          and attending              there would fundamentally                change everything that

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

           flexible, this factor is extremely                           important to us and to

                            In that important sense, this opinion is very different

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

          offered the following on the issue of stability and continuity:

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




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

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

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



 familiarity with the Tyrone School District, his friendships in

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

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

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

         5)     The availability         of extended family.

         While there was testimony           as to some changes, both the

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

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

 factor in our decision.

         6)     The child's sibling relationships.

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

 case for designating           her as the primary residential custodian

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

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

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

 earlier writing and continues              to be their primary residential

 custodian.        The joinder of siblings becomes an important

 consideration        when considered       in the light of the fact that the

 Father has moved to Altoona which places additional separation

 between      these siblings than-existed            when they were four blocks


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

  offered her sorl           s                  testimony      in support of these

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

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

  Father made no claim these relationships                                were not healthy.      As

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

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

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

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

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

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

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

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

  in assessing          how the parents'               ongoing difficulties          (clear to

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

              was entering counseling                    (directed by the Father) at the

  conclusion         of our earlier proceedings                        we were anxious to assess

  this as well.

           In the interest of completeness,                            having raised the issue of

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

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

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

  our proceeding            or submit any report.




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

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

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

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

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

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

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

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

aware of the extent of the difficulties               between his parents.

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

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

 thinking about his situation       in a mature fashion and clearly

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

 custodial relationship"       is at issue.

         Beyond that, while choosing neither parent specifically

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

 Tyrone School District.        Obviously,      this is extremely

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

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

 and activities     are primarily   Tyrone based.            His success          (again

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

 the wild card which the Altoona School District would inevitably

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




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

 meaningful             to this deliberation.

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

              Although        the difficulties                between these parents have

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

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

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

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

  noted previously,                    the Father continues              to believe his work ethic

  demonstrated                through his long term employment with Houtzdale

  State Correctional                      Institution         as well as his wife's military

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

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

  his relation with him in those regards also remains clearly

  established.

              For her part, the Mother's                       situation remains remarkably

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

  needs of her three children.                               She also continues to receive

  child support from all three fathers as an additional                                   source of

   income.

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

   speaks positively                    about both of them.




                                                               18
                 9}   Which party is more likely to maintain a loving,
            stable, consistent and nurturing relationship with the child
            adequate for the child's emotional needs.

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

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

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

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

             (mostly) good job to this point.

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

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

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

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

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

                       As this opinion developed,                      it became clear that the

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

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

             the stability                  and continuity          within either household.    Rather,

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

             School District                    and the risk of changing what has been a

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

             to be satisfied there were substantial                           reasons for doing so.

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

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

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




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

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

                 emphasize          "the comparative                strengths and weaknesses of each

                 householdu           to determine            any potential              superiority.             In fact, at

                  this juncture we believe neither of the households has been

                 established            as sufficiently               superior to justify finding an award

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

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

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

                 to determine the issue of primary residential custody one way or

                 the other.

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

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

                 2014,       everything we have said on the preceding factor would

                 apply with this factor as well.

                           11)      The proximity             of the residences                 of the parties.

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

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

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

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

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

                  reasons to make this change.




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

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

          we observed previously,                    both parents have the ability                        to care

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

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

          care arrangements               when those are required.

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

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

          issue.         In fact, the communication                      problems and control issues

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

          relationship           should not continue and, in fact, we should

          designate           one of the parents as the primary residential

          custodian.

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

                   This is not an issue in the case.

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

                   This is not an issue in the case.

                                                            CONCLUSION

                   Having concluded our di$cussion                           of the statutory factors,

          it seems clear based on our conclusions that the primary




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

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

                                        partial      custody as follows:

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

                                               Father on an every other weekend basis from

                                               Friday after school                       (or sports if he is

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

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

                                               parents          on the same week on/week off basis

                                               existing presently                      with Sunday transfers.                     This

                                               schedule shall commence the first Sunday after

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

                                               following            Sunday and with this alternating

                                               schedule ending timed so that A,l'l.,<i.. will be at

                                               his Mother's at least one full week prior to

                                               school starting.

                                         c.    We affirm the holiday schedule in all of its

                                               particulars.

                                         d.    We direct the parties to arrange one evening

                                               weekly where                A,M.~.        is with his Father for some

                                               period of custody which would be at least two

                                               hours in length and no more than four hours

                                               depending            on . A.M.~.\~            schedule and the Father's

                                               work availability.                        Because we believe that the



                                                                                  23
-------------                    _E_ather . .'....s_work s c heduLe r ot.ates,   this _designate¢                _

                                 weekly evening would need to rotate based on the

                                 Father's     schedule      (and probably        A.   ./-i,~.\~   i-t

                                 could coincide        as well.       We leave this to the

                                 parties to accomplish           consistent with A,,'\.~.\:s

                                 best interest and the spirit of this order.                            We

                                  remain available        to assist with further

                              __ ---Ge~ini.~ion if the parties are unab Le., to reach
   ----~------------------_· --                                                                              _

                                  agreement.

                     In closing, we ask the parents             to.rededicate again to

                            best interests under this Order.              Specifically,           we ~sk

                the Father to continue to involve with ;A.M,"':,.'~               sports and

                activities    as he has in the past and which he has the clear

                ability to do notwithstanding          anything      in this Order.

                Specifically,    we ask the Mother to allow open phone contact and

                additional    periods to     A./v\..~. with the Father beyond this Order

                as may appear appropriate         to his maintenance of that very

                important    relationship.

                     Beyond that, be assured that this Court takes no pleasure in

                this Opinion and the decision           that your situation has required.

                Our respect for both of you remains considerable.

                Unfortunately,    as has been repeatedly pointed out, the problem

                here is the parents and not           A,M..~. which leads to your present

                reality.     Remember going forward that in most situations and


                                                          ·24
__es_p_ec.ial_ly_ Ln your   situation        the    best      parent_J_§. __ t::_~9__ pc1,_:r:·_e_1]J::s.   Ji~-----_

 ask   you to   act   accordingly       on     A,/ii\,-&.'s     behalf.



                                              BY THE COURT:




                                                   25
