J-A26035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.S.,                                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                   Appellant

                         v.

J.C.,

                   Appellee                      No. 710 MDA 2014


                  Appeal from the Order entered April 3, 2014,
             in the Court of Common Pleas of Huntingdon County,
                      Civil Division, at No(s): 2006-0398

BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY JENKINS, J.:                       FILED FEBRUARY 02, 2015

        J.S. (“Father”) appeals from the order of the Court of Common Pleas of

Huntingdon County, entered April 3, 2014, that denied Father’s Petition to

Modify Custody and granted J.C. (“Stepfather”) primary physical custody of

the male child, T.H., born in July of 2002 (“Child”), during the school year,

and granted Father partial physical custody three weekends each month

from Friday at 6:00 P.M. until Sunday at 6:00 P.M.        The trial court also

ordered that, during the summer months, Stepfather and Father shall

alternate weeks of custody. We affirm.

        In 2006, Father and A.C., Child’s biological mother (“Mother”), entered

into a custody stipulation that resulted in the parents sharing legal and

physical custody of Child. Mother passed away in September of 2012. On

October 29, 2012, Stepfather filed a Praecipe to Amend Caption and
J-A26035-14


substituted himself for Mother as a party to the case. Father signed a new

Custody Stipulation under which physical custody of Child was shared

between Stepfather and Father.       Stepfather was given primary physical

custody during the school year, and Father was given liberal periods of

partial custody on weekends. In addition, on October 29, 2012, Stepfather

and Father entered into a Custody Stipulation providing shared legal

custody.

      On October 21, 2013, Father filed a Petition to Modify Custody,

seeking sole legal custody and primary physical custody of Child subject to

Stepfather’s periods of partial physical custody.

      The trial court conducted a custody hearing on January 29, 2014. At

the hearing, Child, Stepfather, and Father testified.         Their testimony

established the following facts.

      At the time of the custody hearing, Child was eleven years old and in

the fifth grade at Spring Farms Elementary School in Three Springs,

Pennsylvania. N.T. 1/29/2014, pp. 6-7. Child resides at 21630 Shore Valley

Road in Three Springs with Stepfather, Stepfather’s fiancée, his half-brother,

Alexander (age six), his half-sister, Emma (age two), and Stepfather’s

fiancée’s son, Michael (age 11) (collectively, “siblings”). N.T. 1/29/2014, pp.

6-7, 18-19.    Child participates in normal family/child activities with the

siblings, Stepfather, and Stepfather’s fiancée, and has good relationships

with all. N.T. 1/29/2014, pp. 8-11, 33, 64-65.



                                      -2 -
J-A26035-14


      Stepfather met Mother at a wedding nearly ten years before the

custody hearing. N.T. 1/29/2014, p. 21. Stepfather was living in Mississippi

at the time, but relocated to Pennsylvania soon after the wedding and

moved into an apartment in Three Springs with Mother and Child, who was

then two years old. N.T. 1/29/2014, p. 21. In 2007, Stepfather and Mother

together built the house in which Child, Stepfather, Stepfather’s fiancée, and

Child’s siblings now reside. N.T. 1/29/2014, pp. 18-19.

      Stepfather identifies Child as his son, and has at all times performed

the duties and responsibilities of a biological parent with respect to Child.

N.T. 1/29/2014, pp. 25, 41-42. He has been Child’s primary care giver since

Child was two years of age. N.T. 1/29/2014, p. 20. Stepfather takes the

lead regarding all Child’s medical issues.1 N.T. 1/29/2014, p. 26. He has

made Father aware of Child’s medical appointments, but Stepfather takes

responsibility for scheduling and getting Child to the majority of the

appointments. N.T. 1/29/2014, pp. 26-28. Stepfather orchestrates Child’s

counseling.   N.T. 1/29/2014, 37-38.    Stepfather and Stepfather’s fiancée

also monitor and help with Child’s progress in school.    N.T. 1/29/2014, p.

29, 36, 39. When Stepfather is away or working,2 Stepfather’s fiancée cares

for Child. N.T. 1/29/2014, pp. 39-40, 44.


1
  Child’s medical conditions include vision problems and a genetic condition
that requires ongoing monitoring. N.T. 1/29/2014, p. 26.
2
  Stepfather is a construction worker whose work schedule varies depending
on work assignments from his union. N.T. 1/29/2014, pp. 33-34, 42-44. As
a result, he sometimes experiences periods where he must be away from the
                                     -3 -
J-A26035-14


      Stepfather testified that, when he first moved to Pennsylvania, Child

had only sporadic contact with Father.         N.T. 1/29/2014, p. 22.       Father’s

contact with Child increased gradually over the years, despite resistance

from Child some five or six years ago. N.T. 1/29/2014, p. 22. Stepfather

explained that, at that time, Child would act out, scream, and cry because

he did not want to spend time with Father. N.T. 1/29/2014, at 23. Father,

in turn, had difficulty spending time with Child during this period, and would

occasionally return child from his visits out of frustration. N.T. 1/29/2014,

at 23. However, Stepfather and Stepfather’s fiancée sought counseling for

Child’s anger management issues, and Child improved. N.T. 1/29/2014, at

23.

      Stepfather further testified that, prior to Mother’s death, Father

provided money for Child sporadically, but did not pay child support until

Child entered kindergarten. N.T. 1/29/2014, p. 25. He has not contributed

child support since Mother’s death. N.T. 1/29/2014, p. 25. Stepfather, in

turn, has not requested child support from Father. N.T. 1/29/2014, p. 25.

      Stepfather always encouraged Child to have a relationship with Father.

N.T. 1/29/2014, at 22. For his part, Stepfather gets along with Father and

has never denied Father the opportunity to be a part of Child’s life.          N.T.

1/29/2014, at 24. The two have worked together to allow Father to have

meaningful    contact   with   Child,   even   during   the   contentious    period



home or long periods not working, especially during the winter months. N.T.
1/29/2014, pp. 33-34, 42-44.
                                        -4 -
J-A26035-14


surrounding the present court proceedings. N.T. 1/29/2014, at 24. Prior to

the court’s order, they had worked out a schedule whereby Father had Child

every Wednesday afternoon and every weekend.3 N.T. 1/29/2014, at 24.

      Father lives with his fiancée in Hudstontown, Pennsylvania, 20 minutes

away from Child and in a different school district. N.T. 1/29/2014, pp. 40,

55. He testified that the triggering event that led to the present litigation

was Child’s desire to live with him.    N.T. 1/29/2014, p. 57.     He did not

present any other reason for his request for modification of Child’s custody.

      Father disagreed with Stepfather’s characterization of his contact with

Child during Child’s younger years as “sporadic”, but he acknowledged that

there were periods of time where he did not see Child or pay child support.

N.T. 1/29/2014, pp. 55-56.     Father further acknowledged that he stopped

paying child support following Mother’s funeral.     N.T. 1/29/2014, p. 77.

Father testified that he and Stepfather have had no disagreements with

regard to either educational or medical decisions.    N.T. 1/29/2014, p. 51.

Father explained that his employment4 prevents him from taking Child to

more of his medical appointments.5 N.T. 1/29/2014, p. 59. Father further



3
 Father only had Wednesdays and every other weekend with Child prior to
Mother’s passing. N.T. 1/29/2014, at 24.
4
  Father works from 6:30 a.m. to 3:30 p.m. for JLG Industries in
McConnellsburg, Pennsylvania, where he has worked for fifteen years. N.T.
1/29/2014, p. 61.
5
 On cross-examination, Father was unable to identify Child’s dermatologist,
dentist, or vision therapist. N.T. 1/29/2013, p. 71.
                                     -5 -
J-A26035-14


acknowledged that Stepfather plays an important role in Child’s life.    N.T.

1/29/2013, pp. 70-71.

      Father additionally explained that, during the past year, he and his

fiancée have been attempting to locate a suitable house within Child’s school

district, although he stated such a move would be subject to being close to

his fiancée’s grandmother, who suffers from Alzheimer’s disease.          N.T.

1/29/2013, p. 63.

      Father testified that he intends to arrange to keep Child in his present

school district by having Child’s maternal grandparents get Child on and off

the bus in the morning and afternoon at the grandparents’ home, which is

next door to Stepfather’s home.     N.T. 1/29/2013, pp. 62-63.     Father also

noted that the plan would involve his fiancée driving Child to his maternal

grandparents’ home around 7:00 a.m. N.T. 1/29/2013, p. 74. In the event

that the weather is bad, Child would spend the night with his grandparents.

N.T. 1/29/2013, p. 74.     Father testified that the proposed arrangement

would also involve the payment of $6,500.00 in tuition, since Father does

not reside in Child’s current school district. N.T. 1/29/2013, p. 75.

      Child testified that he enjoys spending time with Father and has a

good relationship with Father’s fiancée.      N.T. 1/29/2014, p. 10.     Child

indicated that his preference would be to live with Father and visit with

Stepfather. N.T. 1/29/2014, p. 12. Child was unaware of whether such a

move would result in him having to change schools, but he believes Father is



                                      -6 -
J-A26035-14


looking for a home in Child’s current school district. N.T. 1/29/2014, p. 12-

13.

         On April 3, 2014, the trial court issued an Order and Memorandum

denying Father’s Petition to Modify Custody of Child, and granting Stepfather

primary physical custody of Child during the school year, and Father partial

physical custody on weekends. The trial court also ordered that, during the

summer months, Stepfather and Father shall alternate weeks of custody of

Child.

         Father filed a timely notice of appeal on April 25, 2014. Father also

filed a Concise Statement of Errors Complained of on Appeal pursuant to

Pa.R.A.P. 1925(a)(i) and (b) on April 25, 2014. On May 23, 2014, the trial

court issued an Opinion pursuant to Pa.R.A.P. 1925(a) that adopted its April

3, 2014 Memorandum as the court’s discussion of Father’s claims.

         On appeal, Father raises the following two claims for our review:

              [I.] The trial court failed to apply the correct legal standard
              for determining custody between a parent and a non-
              parent[.]

              [II.] The trial court’s legal conclusions regarding several
              custody factors are not supported by the factual record[.]

Father’s Brief, pp. 9, 13 (all capitals removed).

          The custody hearing in this matter was held in January of 2014, and

therefore the new Child Custody Act (“the Act”)6 is applicable. See C.R.F. v.


6
    23 Pa.C.S. § 5321 et seq.
                                        -7 -
J-A26035-14


S.E.F., 45 A.3d 441, 445 (Pa.Super.2012) (holding that, if the custody

evidentiary proceeding commences on or after the effective date of the new

Child Custody Act, January 24, 2011, the provisions of the Act apply).

     Our standard of review in custody cases is as follows:

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

C.R.F., 45 A.3d at 443 (citation omitted).

     We have stated:

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

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

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

     In discussing the abuse-of-discretion standard, our Supreme Court has

advised:



                                     -8 -
J-A26035-14


              As we discussed in [In re:] R.J.T. [9 A.3d 1179, 1190
      (2010)], there are clear reasons for applying an abuse of
      discretion standard of review in these cases. We observed that,
      unlike trial courts, appellate courts are not equipped to make the
      fact-specific determinations on a cold record, where the
      trial judges are observing the parties during the relevant hearing
      . . . . R.J.T., 9 A.3d at 1190. Therefore, even where the facts
      could support an opposite result, as is often the case in
      dependency and termination cases, an appellate court must
      resist the urge to second guess the trial court and impose its
      own credibility determinations and judgment; instead we must
      defer to the trial judges so long as the factual findings are
      supported by the record and the court’s legal conclusions are not
      the result of an error of law or an abuse of discretion. In re
      Adoption of Atencio, 539 Pa. 161, 650 A.2d 1064, 1066
      (1994).

In re Adoption of S.P., 47 A.3d 817, 826–827 (Pa.2012).7

      With any custody case, the paramount concern is always the best

interest of the child. See 23 Pa.C.S. §§ 5328, 5338. Section 5338 of the

Act provides that, upon petition, a trial court may modify a custody order if

it serves the best interests of the child. 23 Pa.C.S. § 5338.

      After a careful review of the entire record, including the notes of

testimony, the applicable law, and the arguments of the parties, we find no

abuse of discretion or error of law on the part of the trial court in the legal

standard it applied to this matter.     Further, we find that the evidence

adequately supports the trial court’s conclusions and findings in awarding

Stepfather primary physical custody, and Father partial physical custody.


7
   Although we recognize that In re Adoption of S.P. involved the
termination of parental rights as opposed to child custody, we find that the
Supreme Court’s discussion of the abuse-of-discretion standard remains
instructive.
                                      -9 -
J-A26035-14


Accordingly, we affirm the order of the trial court on the basis of the

Honorable George N. Zanic’s thorough April 3, 2014 Memorandum and May

23, 2014 Pa.R.A.P. 1925(a) Opinion.8

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/2/2015




8
   We direct the parties to attach a copy of that opinion in the event of
further proceedings in this matter.
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                                                                                 ;.                           ... _..... •:0;::,




               IN THE COURT OF COMMON PLEAS OF HUNTINGDON COUNTY, PENNSYLVANIA
                                         CIVIL DIVISION




                                             Plaintiff
.:.i'   .



                                VS
                                                                                                      -; 'i
                                 . yc. ').
                                                                                                     r-"~
                                             Defendant                                               in
                                                                                                     C1

                                                   MEMORANDUM

                 .                            :::J'.s.                                -r:j-f.
                     On April 24, 2 0 1 4 _ , the natural father of                             appealed the
             Order filed by this Court on-ApdTT, 20 14, Said Order granted primary residential custody of the
             minor child to the child's step-father,-' ::r. c ,
                       In his Statement of Matters Complained of on Appeal, Appellant raises the issues as
            follows:                                                                   ..
                             "Appellant presents this appeal based upon the Court's abuse onts discretion in
                             concluding that Appellee had rebutted Appellant's statutory presumption of
                             primary physical custody, More specifically:
                             a, The court's reliance upon Charles y, Stehl!k, 744 A2d, 1255 (pa, 2000) to
                             suppor! its award of primary custody to a step-parent is misplaced and the case is
                             factually dissimilar to this matter and was decided pdor to the enactment of the
                             Child Custody Act, 23 Pa.C.S. §§ 5321-5340.
                            b. The Court's assessment that Appellee had presented clear and convincing
                            evidence in support of being awarded primary physical custody is not Supported
                            by the record or the finding announced by the Court. Inasmuch as the Court.found
                            the testImony regarding some of the factors for evaluating custody favored
                            Appellant, the record does not support a conclusion that Appellee satisfied a clear
                            and convincing evidence standard."
                    In direct response to the specific issue raised by the Appellant questioning this Court's
            reliance on the case of Charles v. Stehlik, 744 A2d. 1255 (pa. 2000), we believe.the Appellant's
            assertion is misplaced. While we do acknowledge that Stehlik was decide4 prior to the enactment
            of the current Child Custody Act, the case was, cited to point out the significant burden of a non-




                                                                 . ., .. .
                                                                     \       .
                                                                                                    Circulated 01/05/2015 04:07 PM




I I                         parent in a custody proceeding, and to stress that in Pennsylvania, unlike other states, the non-
                            parent does not have to establish that the                                              . .
                                                                    . natural parent is unfit to obtain primary custody.
                                  In addressing whether or not step-father has inet his evidentiary burden, we will rely on
                            our April 3, 2014 Memorandum filed concurrently with the Order in question. In the
                            Memorandum, we specifically addressed each of the custody factors as they related to the
                            testimony presented. As a result, this Court is of the opinion that the best interests o~e
                            met by the Order in question.                                                           .~

                                   As such, the Order of this Court should be affirmed.


                                                                 BY THE COURT




                        I   DATE: May 23,2014                    Glorge N. Zarue, President Judge




                        ;




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            ,"
                .
              ro"




          I:' :




       ..
     ; ;.: .
 .   )'.,.-   :     -
                                                                     Circulated 01/05/2015 04:07 PM




         IN THE COURT OF COMMON PLEAS OF HUNTINGDON COUNTY, PENNSYLVANIA
                                  CIViL DiViSiON
                                                                                    ,.

                                 Plaintiff
                                                          : NO. 2006-0398
                       VS


                                . Defendant


                                       MEMORANDUM
                                                                              .:(5.
        The Court is called upon to determi    custodial rights of_
     _   the natural father             ."')50' Jt:dy 17, 2002, and_5~
     _the young man's oh:",f"f"h"r
)r
            This case began in 2006 when Pia      filed a Complaint for shared
      custodY'agal nst the riatural mother             The parents entered Into a
      custody agreement pursuant to a stipulation on May 22, 2006. Sadly,1IIIIiiiII
     _passed away on September 29, 2012 .

                            .'2012 a Praecipe toAmend Caption was, fil~I'1'i/.«              .J
                                as the Defendant In this case, replaclng_


            Also on October 29,2012, Plaintiff and Defendant entered into ar.
     stipulation providing that the parties would share legal cu!!,tpdy o f _ and
     that the stepfather would be the residential custodian o~ subject to
     periods of partial custody for the natural father. This stipulation was adopted as
     an Order of Court.

             On October 21, 2013 father filed the instant petition to mOdify custody
     requ~.ting that he be awarded sale legal custo.dy and primary physical custody
     o~ subject to the right of Defendant to have periods of partial custody. A
I    custody, conference was held on November 25, 2013, at which time the case was
     listed for full hearing. That custody hearing was held on January 29, 2014.
                                                                                         Circulated 01/05/2015 04:07 PM




 Ii .
     ')                  We begin by poInting out that the parties do not present on equal fo~ting.


              1'_In this regard, even though a stipulation was signed by father and thIs Court
              /' entered an Order in October of 2012 gIving stepfather resIdentIal custody of
                          thE! natural parent is nonetheless entitled to a prIma fade rIght of
                 custody. See, Jordan v, Jackson, 876 A.2d 443 (Pa. Super 2005),

                            likewise, "in any action regarding the custody of the child between a
                     parent of the c:hIld an1a nonparent, there shall be a presumption that custody.
                     shall be awarded to the parent. The presumption in favor of the parent may be
                     rebutted by dear and convincing evidence." 23 Pa,C.S.A. § 5327(b). "The
                    standard otclear and convincing evidence means testfmony that is so clear,
                    direct, weighty, and convincing so as to enable the trIer offact to come to 11 clear
                  .,convictlon, without ~esltatlon, of the truth of the precise facts in issue," !.D..@
                                           , (Pa.Super.2012).
              ... ' B.C., 36 A.3d 601, 60S-606

                        In fulfilment of the statutory requIrements and the gUidance,t,rom our
                 appel/ate courts, thIs Court has receIved evIdence relevant to tle ch~'s best
                 Interest, and must decide whether the evIdence presented on behalf of
))        ,     stepfather is weighty enough to brlrg the scale up to even, and down on his
                side, See, V.B. v. J.E.B., 2012 PA Super 200, 55 A.3d 1193, 1199 (Pa. Super. Ct.
                2012), cltlng McDonel v. Sohn, 762 A.2d 1101,1107 (Pa.Super.2000) (quoting
               .Ellerbe v. Hooks, 490 Pa. 363, 416 A,2d 512, 513-514 (19801).
                     ~       h
                                          '

                                                                  .         .
                                                                                     .'

                   .. Initially, we note that the Pennsylvania Supreme Court considered a
                comparable case involving a custody contest betweerf a stepfaJher and the
               natural fatherfo1fowing the, death of tne mother. See Charles v. Stehlik, 560 Pa.
               334,744 A.2d 1255 (2000). The Court affirmed prImary custody in the
               stepfather, stating that unlIke other states, in Pennsylvania It was not necessary
               for a party in loco parentis to establish that the blploglc~1 parent was unfit
               before he or she could obtaIn prImary custody. Rather, the CourfreaffIrmed the
               standard as follows:

                      It Is axiomatic In custody cases that "the fundamental Issue Is the best Interest of the
                     child." Ellerbe v, Hooks, [490 Pa. 363;] 416 A.2d 512, 513 (Pa.19g0).ln a custody
                     contest between two biologIcal parents, "the burden of proof is shared equally by the
                     contestants.... " Id. Yet, where the custody dispute Is between a biological parent and a
     )               third party, the burden of proof Is not evenly balanced. In such Instances, lithe parents
t·                   have a 'prima facie right to CUstody,' which will be forfeited only If 'convincing reasons'
                                                                                          Circulated 01/05/2015 04:07 PM




          )              appear that the child's best fnterest wilt be served by an award to the third party, Thus,
                         even before the proceedings start, the evidentiary scale Is tIpped, and tIpped hard, to
                         the [biological] parents' side," Id, at 514 (quotIng In re liemande~, [249 Pa ,Super, 274,J
                         376 A.2d 648, 654 (Pa,Super,1977))".(W)hile this Commonwealth places great
                         Importance on biologIcal ties, it does not do so to the extent that the biological
                         parent's right to ,custody will trump the best Interests of the child,

                        744 A.2d at 1457-1259,

                    , In Ellerbe, supra at 514, our Supreme Court held that "these prln~jples do
               not preclude an award of custody to the nonparent. Rather they simply Instruct
               the hearIng Judge that the nonparent bears the burden of productIon and the
               burden of persuasion and that the nonparent's burden is heavy," The Supreme
              Court determined that, "where circumstances do not clearly indicate the         '
              appropriateness of awarding custody to a nonparent, we believe the less'
              intrusive and hence the proper course is to award custody to the parent or
\             parents," Ellerbe, supra at 514,

                      As such, our duty In this case Is to utilize the factors set forth by legIslature
    III       in 23 Pa. C,S,A, § 5328 In aDP:l~zingthe evidence and to thereby determine what
              is in the best interest of_, In this regard, we must weigh the evidence in a
              manner that affords to the Plaintiff the evidentiary advantage he enjoys as a
              parent. We will consider each factor Indlviduafiy:
                 (1)   Which party ;s more likely to encourage and permit frequent and continuing contact
                       between the child and another party?

                        ,     The testimony is undisputed that the pa.).ties have communicated
                        and cooperated since the untimely death of~ mother, Stepfather
                        was Instrumental In encouraging vIsits to anger management classes In an
                       effort to enhance the child's relationship with the child's f?lther, prior to
                       mother's passing, Quite compellIng was the testimony of stepfather that
                       U(w)e have gotten along. Even overthe past year, You know, there has
                       been a little bit of contention here with the court hearings, but before
                       then, even in the last year, very. flexible, We have worked with each other,
                       I have never kept him from him when he has asked to go see him. I have
                       never denied it, We have gotten along, We have worked holidays out and
                       everything," (T.T, 24). Stepfather has even arranged to give Father
                       additional visitation since the entry of the Order entered In 2012,
    I
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          ),
                            The Court Is quite concerned, however, with the nonsensical
                     testimony of fathe'r relating to his reasons as to why legal custody should
                     not be shared, (TT 59-61), The statement of father, that "(b)ecause
                     honestly, the doctor that he goes to now might not be the best physician
                     for him. There Is always!0Pc:body better," (T,T, 60) Is curious, Father has
                    sha red legal custody of_fo r seven years, however,' he now takes the
                    opportunity to announce that he will do better If ~Iven sale legal custody.
                    This Court was not Impressed with the second-guessing nature offather's
                    testimony,

                     '/. Also telling Is the tone of father's testimony when he was asked If
                   _ w a s a good kid, and he stated that "Couldn't ask for a better kid.
                    His mother did an exceptional job with him." (T,T, 72.) The Court notes
                   that this was an unnecessary and ~a~ul Jab at }t7pfather, Stepfather
                   has been the primary caretaker o~since _ _ death, and the
                   obvious negative attitude and lack of appreciation for the stellar job that
                   stepfather has done in raising this young man Is a sign of things to come
                   should father become the primary legal and residential custodian.
          )
                          This Court Is c0!lvinced beyond any doubt that stepfather has and
                   wifl continue to encourage and permit frequent and continuing contact
                   between the child and his father, and as sucn this factor weighs heavily In
                   his favor. The Court Is also convinced that should father obtain the control
                   he seeks, the solid Influence and guidance of stepfather will be
                   substantlallv diminished,
               (2) 'The present and past abuse committed by a party or m~mber Jlthe party'. household,
                    whether there Is a continued risk ofharm to the child or an abused party and which party
                    can better provide adequate physical safeguards and supervision of the child,

                           No relevant evidence was presented to conSider this factor,
               (3) The parental duties performed by e(1ch party on behalf oj the child,
                           .         7'
                        Since_ mo~er passed away, stepfather has been the
                 P4mwy caretaker of. . . . and stepfather has ensured that a" of
                . . . . . med¥al_ needs have been attended to on a daily basis. Stepfather
                 has taken_to the vast majority of his medical appointments.                '
                . . . medical Issues are of much greater concern than an average
.......          child. Stepfather has easily persuaded the Court that he has excelled as a
                                                                                             Circulated 01105/2015 04:07 PM




                )        prImary caretaker and that he would continue to do so In the future,
                                                                                        -2S'i>_
                               In contrast, father, was not able to Identl~ dentist, his
                        vision therapIst nor hIs dermatologIst. Clearly father Is Involved with his
                       child and a capable parent, however, he has not partICipated In the day to
                       day Involvement as the prImary caretaker which has b~en successfully
                       undertaken by stepfather, Father has had limited involvement with the
                       _ _ _teacher this ~ stepfather has taken the lead In the
                       edu~atlonal aspect of~life as well.'                              ,
                    (4) The need Jor stability and continuity In the child's educatlon,famlly life and community l/fe,
                                                                                                        -r:
                              Thl\fact6r weighs very heavily in favor of Defenda nt._has
                       undoubtealy undergone signifIcant trauma in his life with the loss of his
                       motb,e.~; Stepfather has been and will continue to be the stabilizing force
                       1~lIfe, and to change residential custody now would be
                       detrimental and certainly not in his best interest.
\    ....             _~flJ/ this Court were to Ch. an g.e residential custody, it Is lJ.9'~e~r Where
I))                   _     would go to school. Alth~ugh everyone agreed that_ should
                    • stay In his present school, there was only speculation as to howto
                      accomplish that task should father become the residential custodian,
                                            ,                                                                 T
                             Father speculated regarding the paying of tultl,on to keep_In,
                      the Southern Huntingdon County School DistrIct, and he testified that he
                      was looking for real ,estate In the Southern Huntingdon County School
                      District. This Court is not persuaded by the testimony of father In that
                      regard, and It is not appropriate to re'nder a decision on what might
                      happen, Stepfather has also Indicated a possibility of moving his family
                      home, while staying in the same school district, the stability factor still
                      remains In favor of Plaintiff,

                            Through his testimony, the Court was able to learn a great deal
                      abou~father's background an.d the make-up of the current situation
                      with_, We learned about t~~Jesidents of his h~_E.~ost
                     importantly we learned about stepfather's fiancee~ and her
                     role in assisting with the child-care and asslstingiliiiliVith his
            \        homework, She has bee~ a%ositive factor over the course of the past year
                     in the upbringing o~ and there can be no doubt that she will
    .. .,.t
                                                                                            ,
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    J)' ,
                                                                       -f:'i>        '
        )          contInue to be a very positive lnfluence fn-'Ufe. She Is by no
                   means a replacement for hIs mother, however, the Court cannot ignore
                   her everyday role In assistIng wIth the raising      of_:r
                    . ~.w!t is quite curious, however, that we only know the name of father's
                  flancee,--. but know nothing else about her. Granted
                  . . . . testified that he gets along with her; however, there was no T.!5
                  testimony regarding who she is and the role she might play I n _
                  life. Obviously, when ma~lng
                                         ,~   .•
                                                 a decision as to. where a child Is going to live,
                                                      ,



                  great care has to be undertaken in determining the make-up of each
                  household and whether stability wHi be provided.
                                                                                         '.
                         This Court Is being asked to speculate regarding the
                  appropriateness of,father's household~as done as well as can be
                  expected for a child who has lost hIs mother. Continued stabilfty Is
                  ~ssential, and the stability factor weighs heavily in stepfather's favor.

             (S) TI1~ availability 0/ extended family.
l) -)
,
                        Due to the breakdown of the relationship between stepfather and
               : the maternal grandparli!nts, this factor weighs In favor of fath~ \ys clear
                 that Pialntiff has made an effort to Include grandparents In ~ life,
                 and there canJ?P. llo question that the maternal grandparents musf be
                 involved In_life. ThIs Court would suggest that the part~es
                 cooperate to ensure that the grandpa!f:l1.t{t who live next door to
                 stepfather, are a constant factor In     IIIIIIIIIt
                                                                life. While procedurally the
                'Court does not hav.e the ability to grant visitatIon to grandp~l1ts at this
                time, there can be no question that for the benefit o f _ , 'the
                relationship between stepfather and grandparents must be mended. It Is
                strongly suggested th"~tepfather permit freqt,fent contact with
                grandparents while"is in stepfather's care. The ~g!moslty created
                between grandparents and stepfather is not lost on_, and that
                creates a very heartbreaking set of circumstances.

                        ,I
            (5) The chl/d's slblln,g relationshIps,                             .;
                                                                             -"1i
                        If Plaintiff gets his Wish as to the custody order,lIIIIiIaIwould see
                his half-brother and half-sister only every other weekend. That result Is
                unacceptable, The policy in ~ennsylvania is to permit siblings to be raised
                                                                                   Circulated 01/05/2015 04:07 PM




!J'
       )          together, whenever possible (the doctrIne of "ftlmlly unity" or "whole
                  family doctrine.") Wiskoski v. Wfskoski. 427 Pa.Super. 531, 629 A.2d 996,
                  999 (1993), appeal denied, 536 Pa. 646,639 A.2d 33 (:!994).

                        Absent compelling reasons to separate siblings, they should be
                 reared in, the same hou~ehold to permit the "continuity and stability
                necessary for a young child's development." Pilon v. Pilon, 342 Pa.Super.
                ~2, 492 A.2d 59, 60 (1985). This policy does not dIstinguish betINeen h~If­
                siblings and siblings who share both biological parents. In re Davis, 502 Pa.
                110,465 A.2d 614. The factor while Important Is only one Important
                factor-and not the controlling factor-In the ultimate custody decision. See,
                e.g., E.A.L. v. L.J.W., 443 Pa.Super. 573, 662 A.2d 1109, 1118 (1995);
                Ca rdamone v. Eishoff, 442 Pa.Super. 263, 659 A.2d 575, 583-84 (1995);
                M.D. v. B.D., 336 Pa.Super. 298,485 A.2d.813,816-17 (1984).

                   . The sl~ng factor clearly and overwhelmingly weighs in favor
                DejeJ:,dant._ has been raised wIth his half~.~I1~
                an11. . . . . . . At the time of the hearlng,.- was six years old
))     )        anctllliiiltwo. Cancer has taken his mom from him, and this Court Is not
                inclined to have the legal sys~~take him from his siblings. While
             A circumstances dic~te that_spend significant time away..from .f
             • ' - ' and              hI
                                       we will make every effort to construct an Order that
               ensures that~1;'s a healthy and long lasting relationship wIth hIs
               half-brother and half-sister.

            (7) The well-reasoned preference of the child, based"on the child's
                                                                         I!
                                                                                maturity and Judgment.

                    -1_lndicated that he would prefer to live with his fat~er,
                however, he had a difflcurt time explaining why he wanted to do so.
                Although It would be difficult for any young child to explain his reasons,
           -i-"had an exceptio cally difficult time coming l.lP wlt~ any reasons. .
                Filth er was dear on the witness stand that one of the mJ'n reasons he has
           A' proceeded with his efforts to obtain custody was due to the persistence of
           .,\ . _ . The Court, however, does, not see this as a compelling reason
                based on the young age of _         -gnd his Inability to provide an
                explanation, or any credible reason for the preference.        •

       )
I) .
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     ,
),
         )          (8) The ottempts of a porent to turn the child ago;nst the ather parent, except In cases of
                        riomestle violence where reosonable safety meOSlJres are necessary to protect the child/rom
                        harm.

                                No relevant evIdence was presented to consider this factor,
                   (9}(lO; 'which party Is more likely to molnf(Jln 0 lov/ng, stable, consistent and nurturing
                       relationship with the child adeqllate/or the child's emotional needs, and whIch party/smote
                       likrlly to attend to the dolly physical, emotIonal, developmental, educatIonal and specIal
                       needs a/the child.

                               Defendant Is more J1kely to succeed In the long term in these areas.
                      As pointed out by counsel for stepfather, "the best predictor of future
                      behavior is past performance ..... " (Brief of Defe.~,ant p. 10). Stepfather
                      has been vigilant in ali developmental a~ects of. . . . life and there is
                      no reason to believe that this will change:_ is a wonderful young
                      man due to his up,¥.!~grng_thus far, and many people have played a
                      significant part in"'development. While the evidentiary burden Is
                     on stepfather, his rol~ry ralSing~annot be Ignored. pefendant has
)
                      been a ,constant in ~ Hfe.ilililJhas medical and educational
     )                n'ee,Qs that have been taken care of almoseexcluslvely by stepfather over
                     the course of the past year, and stepfather will continue to ensure that
                     this wIll happen In the future. The credible emotion and love that
                     projected from tj1e witnessstand during stepfather's testimony was
                     noted.
                         I
                 Ill) The proximity of the resIdences of the parties.

                            The partIes Jive only 20 mInutes apart; however, they live In
                     different school districts.
                 11.2) Each party's ova liability to .are for the child or ability to make appr()prlate child-care
                     Qrran(/em~nts.


                           Each party has an ability to provide adequate and appropriate child
                    care, and It Is antIcipated that maternal grandparents                    rl.t>
                    will continue to play significant and appropriate role~ in this area when
             ,
             •      the parties are working.

    )
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         ,   ,
-,
                      (1.3) The level 01 conflict between the pQ.rtles and the wll/illgness and abl/ity 01 the parties tD
     )                     cooperate with one another, A party's ellort to prorect a child lrom abuse by another petty is
                           not evidence 01 unwlllfngness or inability t~ cooperate with that PC1rty.

                                                     the parties have and will cooperate in the
                         future                   The only significant level of conflict Is the
                         pronounced negativity dire~ted toward stepfather from some members of
                         mother's family. While those mentioned are not parties to this actlon,lt
                      At should be addressed in tlie future to ensure that those who love and care
                     / -'for_are able to work together for the sake of?                  -f. 'S,      a
                         development.
                     (14) The history 01 drug or alcohol abuse 010 party or member 01 Q party'S hClu$ehold.
                                                                                                  ~

                                 No relevant evidence was presenteq to cqnsider this factor.

                     (15) rile mentQI and physico{ cOlld/tlon 010 Party or memberol a party's household.

                                No relevant evidence was li'resented to consider this factor.

                     (16) Any other relevantloaor,
i )
                             Many people have been involved in raislng_, undoubtedly
                                                                                            -r:
                      with the greatest contribution coming fro~ his Mother, Untif today, those
                      Involved have done an admirable job._ is a polite-and respectful
                      young ma~ho wlI/ succeed in the future, It Is our hope that those
                    _ Involved in~ife will continue to work together for the benefit of
                    -1_.                                                -


                 the preceding Order,                           /'
                                                                        of'"
                       .wHEREFORE, based on the foregoing, this Court finds by clear and
                 convincing evidence that the best Interests        wlH be met with entry of




                                                                By the Court:



                                                                Geo - e N, Zanic, P.J,

                 Dated: Ap rll 3, 2014
