J-S86029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.L.                                               IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                      v.
J.R.

                            Appellant


                    v.



J.A.

                                                        No. 993 WDA 2016


                      Appeal from the Order April 15, 2016
                 In the Court of Common Pleas of Mercer County
                        Civil Division at No(s): 2008-2899


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                         FILED DECEMBER 29, 2016

       J.R. appeals, pro se, from the April 15, 2016 order of the Mercer

County Court of Common Pleas granting sole legal custody of J.R.R. (“Child”)

to L.L. and granting partial physical custody to J.R. We affirm.

       J.R. and L.L. are former domestic partners and the parents of 15-year-

old Child. The trial court set forth the lengthy procedural and factual history

of this case1 in its April 15, 2016 custody order, which we adopt and

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
        The parties have been litigating this custody matter since 2008,
including three appeals to this Court.
J-S86029-16


incorporate herein.       See Findings of Fact, Conclusions of Law & Order,

4/15/16, at 1-17 (“Trial Ct. Order”).

       In this appeal, J.R. raises the following issues:

           A. Did the Court err in ordering sole legal custody to
              [L.L.]?

           B. Did the Court err in removing [J.R.] from all access to
              the minor child’s academic, social, medical, and
              therapeutic support services while making it impossible
              for the parties to co-parent as a family unit with no
              direct structures?

           C. Did the Court err in not taking into consideration the
              Guardian ad litem’s recommendations as being
              beneficial?

J.R.’s Br. at 7 (suggested answers omitted).2

       We review a trial court’s custody order for an abuse of discretion. In

doing so,

           [w]e 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
____________________________________________


       2
        The issues listed in J.R.’s statement of questions involved differ from
the issues presented in the summary of argument and argument sections of
her brief. In fact, J.R. does not specifically address the second and third
issues in her argument section. In any event, all three issues essentially
challenge whether the trial court properly granted L.L. sole legal custody of
Child. Even if J.R. had properly argued her second and third issues, we
would affirm on the basis of the trial court’s Pennsylvania Rule of Appellate
Procedure 1925(a) opinion, which we adopt and incorporate herein. See
Rule 1925 Opinion, 8/12/16, at 1-8.


                                           -2-
J-S86029-16


           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.

D.K. v. S.P.K., 102 A.3d 467, 478 (Pa.Super. 2014) (quoting J.R.M. v.

J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011)).

       Section 5328(a) of the Child Custody Act delineates 17 factors that a

trial court must consider when awarding any form of custody.                 See 23

Pa.C.S. § 5328(a). Here, the trial court separately addressed each factor in

its custody order and explained why the majority of the factors weighed in

favor of granting sole legal custody to L.L. See Trial Ct. Order at 19-29.3

We agree with and adopt the trial court’s reasoning.

       At the conclusion of its order, the trial court further explained:

                 What is . . . clear to the Court from years of litigation
           between the parties is that the shared legal and/or
           physical custody arrangement between the parties would
           be totally adverse to the well-being of this child. The
           guardian ad litem clearly documented how the stress and
           anxiety levels of this child increase because of the conflict
           between [L.L.] and [J.R.], which the Court finds is
           primarily precipitated by [J.R]. The Court also finds that
           the only hope for this child to achieve growth in her
           medical, mental and social condition is to have one person
           solely in charge of all decisions pertaining to her well-
           being. [J.R.] has already demonstrated throughout the
           prior eight years that her methods and approach have not
           worked and in fact have been detrimental to this child.
           Thus, the Court finds that it is in the best interest of this
           minor child that [L.L.] have full legal and physical custody
____________________________________________


       3
         Although the trial court did not specifically discuss section
5328(a)(2.1), relating to child abuse and the involvement of child protective
services, that factor was not relevant to this case. See Trial Ct. Order at 20.


                                           -3-
J-S86029-16


           of her and that the involvement of [J.R.] be kept to a
           minimum because of her overpowering influence and
           control of [Child], and the battles she has created over the
           years, all to [Child’s] detriment.

Id. at 29. We conclude that the record supports the trial court’s decision to

award L.L. sole legal custody of Child.

       Order affirmed.4

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2016




____________________________________________


       4
        In the argument section of her brief, J.R. also asserts that the trial
court failed to promptly issue its custody decision in violation of
Pennsylvania Rule of Civil Procedure 1915.4(d). However, because J.R.
failed to raise this issue in her Pennsylvania Rule of Appellate Procedure
1925(b) statement or in her statement of questions involved, it is waived.
See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues
not raised in a 1925(b) statement will be deemed waived.”); Pa.R.A.P.
2116(a) (“No question will be considered unless it is stated in the statement
of questions involved or is fairly suggested thereby.”).


                                           -4-
                                                                     Circulated 12/16/2016 08:11 AM




           IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA
                                      CIVILACTION- LAW




                                                     No. 2008-2899
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                                                                           \_\,
                     Defendant
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     I!i~            Additional Defendant
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                                                                                         -
                   FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER                        -
               This heaviiy litigated custody matter has regularly been before the Court
 !!
 !lsince
 j!            July of 2008_ The Additional   Defendant.                     is the child's
 .,

 !i biological father and has not been   involved in the custody proceedings because he
 i•
1i is serving a life sentence for first degree murder. The bulk of the litigation has
!!

J/been between the two former domestic partners in this matter. Plaintiff-
ii
q

l! and
;;
             Defendant                      Defendan-is the biological mother of

I; the minorchild       and was granted fulf custody with supervised visitation only in
ii

i! Plaintiff .....,_y
l!             ~
                         the initial custody Order dated February 20. 2009.        Unsatisfied

/I with      that Order. -filed an appeal to the Superior Court which was denied.
H
 I:
 1!
 Ii
 l1
 n
 i            Defendant-            subsequently relocated to the Cincinnati, Ohio area
 H
 n
 !'.{without prior consent) with the minor child. After relocation hearings were held,
 u
 l"ithe Defendant/mother was ordered to return the child to Mercer
       n
                                                                          County by Order
 H
 ;!


 lldated August 24, 2010.          Defendan~iso appealed that Order, and it was
 i;


 ii! affirmed   on appeal, the Court again entered    an   Order on July 8, 2011 for her to
 ,;



 iq return the     child to Mercer County by August 15, 2011, which she failed to do.
 •i


 !/ Following a contempt hearing, Defendan-                was found in willful contempt of
 ii
 !iCourt was sentenced to Six months of incarceration, with purge conditions, and a
 ;!
 :;

 :·:; bench warrant Was issued for her arrest on March 29, 2012.

              Plaintiff-        then filed a petition to modify custody to obtain primary
ii
i physical      custody of the minor child and after a hearing held in the absence of

J!Defendant-n October 2, 2012, Plalntiff~as granted temporary
!)
!! primary physical custody. All of these Orders were ignored so Plaintiff registered

[them in Ohio and eventually obtained an Ohio Order on August 23, 2013 for the
;1
,l



(return of the child.           Defendant -wasapprehended              with the child near

      Cleveland on December 20, 2013 when police pinged her cell phone.

             Another temporary custody Order was entered on January 8, 2014 granting

      temporary primary physical       custody to Plaintiff -subject to periods of

      supervisedpartial physical custody in Defend an-           supervisedby the Mercer

      dou_ntyfghildren and Youth Servicesagency. Defendant-began servingthe

      six month contempt sentence and was released on February 21. 2014 after

      purging her contempt.        The Court also ordered CYS to implement protective

      services in Plaintiff's   home on behalf of the minor child.    CYS was eventually


                                                2
\idismissed           from the case on December       15, 2014 and the supervision was then
i
i conducted
'I
                      by                 with whom Defendant-resided                with in Mercer
";:
i! County.          The supervised visitations were ultimately moved and by Order dated
ii
i!
i! March      24, 2015 the parties agreed to a partial physical custody schedule in the
Hn

i Defendant/mother              which the parties have been primarily following while they

:i litigated       the issue of primary physical custody.
il
q
              Both parties filed motions to modify existing temporary Orders each seeking

i; primary         physical custody and they appeared at the following custody hearings, pro

:;se, on December 1, 2015, December 9, 2015, December 30, 2015 and January 12,

!!2016.            Accordingly,   in light of this background, the Court makes the following

!I Findings
l!
                    of Fact in addition to prior Findings of Facts made throughout the past
!i

i eight
[!    .
            years:

                                            FINDINGS OF FACT

              1.          With the consent of the parties,                  LSW, was appointed
ii
:)as
H
     guardian ad litern for the minor
                                    .
                                      child,                                 born




H
             2.           Ms.
                           -is 38 years old, married and with two children, ages 16

i, and 19.          Ms.   mils a licensed clinical social worker    and her primary experience

ihs       as a mobile therapist and behavioral special consultant.          She has a Master's

i Degree in Counseling and she                   has worked    for approximateiy 15 years in
l!
i outpatient and inpatient counseling           with a focus on children.




                                                     3
!i
H


             3.        Ms. -had extensive contact and interaction with the subject

! minor child in this matter as weli as        Ms.-Ms.-                 and various providers
:1
[of care and school authorities pertaining to the minor child.
1l

             4.        The Court adopts the report of Ms.-which is Joint Exhibit No. 1

:I (with the
p
                   exception of her recommendation).
:!1:
,,
                       Extensive custody litigation has been occurring regularly in this case

:i after Plaintiff and Defendant broke off their former domestic partnership in 2007.
"
             r-
             o.        After many court battles and a lengthy initial custody trial, Defendant

-was awarded full legal and physical custody with supervised visitation in
it

IJ     Plainti~ursuant            to the Order dated February 20, 2009.
ll
ti
             7.        Defendant-          appealed that Order which was affirmed by a

Ii Memorandum           Opinion of the Superior Court on December 22, 2009.
i;
             8.        Defendant~elocatedto the Cincinnati,Ohio area within a few
:i
iii' months       of the Superior Court's ruling without leave of court or permission from any
;;


i other party,

             9.        Defendant-          thwarted any and al! efforts of the Court and

       Plaintiff -nd the child advocate appointed by the Court from the timeof

       separation until she relocated to Ohio to promote and have meaningful time spent

       between PlaintiffmrJind the minor child.

             10.       A relocation hearing was ultimately held and the Court denied

       relocation by Order dated August 24, 2010 and directed that the child be returned

         Mercer County.




                                                  4
                11.       Defendan-promptly appealedthe reiocationOrderwhich was

          stayed leaving the February 20, 2009 supervised visitation in place. which was to

          occur in Mercer County.

                12.       It was rare that the supervised visitations occurred after relocation

          since the child was five hours away from Mercer County.

                13.       Superior Court affirmed the deniai of relocation on March 28, 2011

          directing the child to be returned by August 15, 2011 which did not occur.

                14.       Defendant-          was held in willful contempt and sentencedto six

      . months in the Mercer County Jail with purge conditions by Order dated August 29,

 ::2011.
 :.,
 '\

 :!             15.       Defendant-1l,erved one day in jail and the next day the Court
 li
 ii
 i! suspended            the sentence so iong as Defendan-eturned the minor child by
 (!

 l:October 16, 2011 and give the P!Hintiff-156 hours of makeup time.
 :,.
      :
                16.       A contempt review hearing was held via telephone with Defendant
 :i
 !-on October 20; 20'11 and she had not fulfilled the purge conditions and had

 li not returned the child to Mercer County, but was granted                  an extension   to
 n
 i11 November
       -.
              21.           2011.
 ;1


);              17.       A final contempt hearing was held on March 29, 2012 and Defendant

i-
ii
                      failed to appear, and the Court found she failed to fulfill the purge

!!conditions,            including returning the child.   and the six month jail sentence was

it
i;
          reinstated and a bench warrant was issued for her arrest.
                                    .




                18.       Plaintiff-filed       a petition to modify the 2009 custody Order

i seeking             primary physical custody and a hearing was held on October 2, 2012 and



                                                      5
,,:
n;i
 '
     Defendant-failed to appear. but the Court received testimony and exhibits

     and made extensive Findingsof Fact, and awarded primary physicalcustody of

        minor child to Plaintiff        on December 31, 2012.

           19.     Those Findings of Fact and Conclusions of Law weighed each of the

     16 custody factors, and those December 31, 2012 Findings and Conclusions of

     Law are incorporated herein by reference.

           20.     The    State    of Ohio   refused to honor the bench    warrant   and

     Pennsylvania's custody Orders, so Plaintiff-        registered the custody Order in

     the appropriate county in Ohio which held hearings and affirmed the Order on or

     aboutAugust    23,   2013, but Defendan-avoidedexecutionof the Order to

     return the child when attempts were made by the Ohio authorities to transfer

     custody.

           21.     Plaintiff~as unable to recover from her herniated disc injuries

     on her job and therefore stopped working in October of 2013 and relies in part

     upon her domesticpartner of several years for support.

           22.     Lakewood, Ohio police (which is located near Cleveland) located

:i Defendant-             with the minor child and contacted Plalnti~ho obtained
d

i physical      custody   of the minor child on December      20, 2013 pursuant to the

iJ Temporary     Custody Order dated December 31, 2012.

:!         23.     The minor child has been in the temporary primary physlcai custody

: of P!aintiff-ince December20, 2013.




                                                6
       24.    The Temporary Custody Order also directed Mercer County Children

and Youth Services to provide protective services for the child in PlaintiffmJI

home which they did prdffifjtly.

       25.    The temporary Order also directedPlaintiff-                to Immediately

establish medical     care for the child's various needs and schedule           medical

appointments and therapy appointments.

       26.    CYS monitored        the minor child's physical and emotional needs

through regular visits from the agency's nurse and by obtaining and reviewing

various medical records.

       27.    The temporary        Order also permitted    Defendant -         to have

supervised visits with her minor daughter by CYS until further Order of Court

       28.    Defendant-surrendered             herself to the custody of the Court on

January 8, 2014 at which time a hearing was held in the presence of all parties

and CYS. and Defendant -               was committed to the Mercer County Jail to

serve the balance of her six month contempt sentence imposed August 29, 2011.

       29.    Defendant-            fulfilled her last purge condition and was released

from the Mercer County Jail on February 21, 2014 after serving about 44 days of a

six month sentence.

       30.    After being releasedfrom jail, Defendant-remainedin Mercer

Countyand resided with her friends,                       and                  husband

and wife, at their house at                           Mercer, Pennsylvania     which is

locatedin the Mercer SchoolDistrict.




                                            7
         31.   Mr. and Mrs .•    re in their mid-40's and have one child

who is 12 years old and is a special needs child with a birth defect known as

George Syndrome causing various developmental delays,

         32.   They reside in a raised ranch home and Defendant-              resides

on the bottom level of the home free of charge where she has one bedroomwhich

she shares with the minor- child in this matter dur1ng her periods of partialphysical

custody:

         33. Defendant -hd
                         the-now each other from various

therapy programs that their two daughters were involved in several years ago.

         34.   Mr.-employed         and traveis throughout the week and is out-of-

town roughly 200 nights per year and ls home on weekends.

         35.   Mrs-is employed at the outlet malls butis home a lot.

         36.   The-         and Defendant-and          the subject minor child get

along well together and the La its do not know Plaintiff-       andare not involved

in custody exchanges.

         37.   Defendant-         expressed    no plans to live anywhere else in

Msresr County in the near future ,and her residence is about 23 miles from the

homeof Plaintiffmlll

         38.   Defendant -gave no explanation as to why she does not

reside closerto Plaintiff-ikethe partiesdid before she left the state with the

child.

         39.   Defendant-wants to enroll her minor daughter in the Mercer

School District ff she receives primary physicalcustody.



                                         8
          40.   When the minor child began residing with Plaintiff-tn December

   2013, the subject minor chiid has been in the primary physical custody of

Defendant-          continuously and the Court only permitted supervisedvisits with

Defendan~nd oversight by CYS to assure the safety of the child because

of her extensive medical record and Defendant-             contemptuous behavior.

Supervised physical custody between the child and Defendant-continued

until Defendant-proved to the Court that she had a Pennsylvania driver's

license and had registered her vehicle in Pennsylvania, and obtained a job in

Mercer County. See Order dated December 15. 2014.

          41    On December 15, 2014, after a year of oversight. Mercer County

CYS was granted leave to withdraw from this custody case, provided; however,

that                 would be the supervisor of Ms. -periods of partial

physical custody.

          42.   By Order dated January 30, 2015, the supervision of periods of

partial    physical custody was lifted since Defendant -obtained a

Pennsyivania driver's license, registered her vehicle in Pennsylvania and obtained
employment in Mercer County.,

          43.   Defendant-eriodsof partial physicalcustody as set by the

March 24, 2015 Order permit her to have her daughter every other weekend on

Saturday mornings from 10:00 a.rn. through Sundays at 7:00 p.rn. and every

Tuesday after school until 7:00 p.m. A Slightly expanded schedule was set for the

summer of 2015 by the Order dated May 28, 2015 which reverted back to the

March 24, 2015 scheduling order when school reconvened in September of 2015.



                                         9
                       ·-                                       .-...,,




            44.     When the subject minor child was placed in temporary physical

    custody of Plaintiff-           in December of 2013. the child was enrolled in the

    Sharon public school system where she remained until the parties agreed to put

    her in a private school, St. Stevens, Which recently opened in Sharon, Mercer

    County. Pennsylvania        and is specially desiqned to handle the needs of autistic

    children.

            45.     Since residing with Plaintiff-        the subject minor childno tonger

, needs an orthopedic strolter/wheetchair, had her GI tube removed and now feeds

!,herself       using silverware and eats regular food.          In addition,   Plaintiff-

[encouraqes the child to become as independent as possible by bathing, dressing
n

:: and feeding herself:

            46.     The subject minor child's medical Issues have greatly improved since

, residing primarily with Plaintiff-since December of 2013.                Notably, the minor

    child is in good general health and' is m no need of speciauzed medical treatment.

            47      The minor child currently has diagnoses of anxiety disorder, autism

·. spectrum disorder. lack of coordination and other Symbolic dysfunction for which

    she has weekly occupational therapy, physical therapy, speech therapy, outpatient

    mental health counseling, medication management, and family based services.

            48.     The child attended the sixth grade for the 2014-2015 academic

· school year and made significant improvements despite her global developmental

    delays which impact her socially and lead to poor communication.

            49.     Nonetheless. due to the conflict between Ms.-andMs.-

    the child's anxiety   and   stress revels vastly increased as Ms. -         became more



                                                 10
 involved again in her Hfe resulting in adverse reactions by the child to going to

 school.

        50.        The child again attended the Sharon public school for seventh grade

 for the 2015-2016 school year but was missing halt of the school year leading to

 her placement at St. Stevens.

           51.     Several truancy violations were brought against the minor child and

 Ms. -and various hearings were held but Ms.~as never found guilty.

           52.     Truancy support services were put in place.

           53.     Sharon School authorities noticed that the child's bouts of anxiety

 seemed to correlate to when she talked with her mother or was going to have a

 visitation with her.

        54,        Defendant-        voiced disagreements at meetings over schooling

 alternatives in the presence of the minor child and according to the minor child, Ms.

 -          told   her that Sharon Schools were not right for her and she was

 disappointed that she was not being Cyber schooled as in Cincinnati.

        55.        While at Sharon Schools the child had an JEP with learning support

 and made improvements when she attended.

        56.        The minor child has difficulty   expressing   herself,   regulating her

 emotions which iead to aggression and significant anxiety exacerbated             by the

 conflicts
       between Ms.-                and Ms-

        57.        The child has difficulty resolving conflicts. making decisions and

• lacks age-appropriate problem solving skills and takes many of her cues from her

· mother.



                                             11
              58     When there is significant stress and conflict, the minor child shuts

 :!down on an emotional level and resorts to a fight-flight or freeze response.
 i;

              59,    The minor child is visibly anxious when both Ms. -              and Ms.

 [-re present together.
 ;,




              60.    The minor child feels forced to choose between the parties.

              61.    The minor child is very loyal to her mother and has difficulties

      .aoknowledqinq    positive interactions   between herself and Ms.-despite the

      obvious evidence of their dose bond.

              62.    The subject minor child would prefer to live with her mother.

              63, Ms. -            andMs.-have different parenting styles and

      approaches for discipline.

              64.    Ms.911i1as made many mistakes in parenting since the child has

      been with her since December of 2013, based m part, on the substantial barriers

      placed in the minor child's mind between Ms~nd the minor child.

              65.    Ms-          has obviously alienated the affections between Ms .•

i and      the minor child in the past eight years and continues to try and control and/or

ji    manipulate aH aspects of her daughter's life and the contacts she has with Ms.
if

:. ·-
)i            .



!i
H             66.    The minor child is artistic, inventive and creative, and loves to swim,

i ls very     sensitive and loves animals.      The truancy problems have decreased since

i the child has      been at St. Stevens School and she appears to like the school and

i the
,i     .
           people.




                                                  12
                  .   ...,




               Plaintiff -          has resided at                        Sharon. Mercer

/::ounty, Pennsylvania since about 2007 and currentlyresides with her partner,

                             who is 45 years o!d and works as a traffic control specialist

":With Area Wide' Protective Services Monday through Fridays from 7:00 a.m. to

 3:30 p.m. and ts an cat! on weekends.

        68.    Ms -s m              good health and has no children.

        69.    Ms.-boards a horse in nearby Jamestown, Pennsylvanra and

'the minor child accompanies her and has ridden the horse (once without a helmet)

 and the minor child likes to be at the farm.

        70.    Ms.-            hasno relationship
                                                withDefendan-

        71. Ms.-               pays
                                  thehousehold bills.

        72.    Ms.-overheardOefendant-talkingon the phoneto the

 child saying that they are dirty and live in a ghetto and that soon we will not have

 to deal with these people.

        73.    Ms. -             helps with some parenting and participatesin Family

 Planning Services.

        74.    Pialntiff,                    is 48 years of age and her home is a two-

story house that she rs buying from her brother on an Article of Agreement for

 $340.00 per month.

        75     The house has three bedrooms and the minor child has her own, but

 prefersto sf eep with Plaintiff-

        76     They have a double lot with a fenced in yard, an above ground

· swimming pool, a trampoline and a club house for the rrunor child.



                                               13
                          .....
                          -




            77.    The minor child gets angry with Ms .•       and upset when she does

     not get her own way, and Ms.-riesto give her time and space.

            78.     The minor child likes to fish and ride her two-wheel bicycle and go to

     the family camp in Eldorado, Pennsylvania where they hike on some weekends.

            79.     Ms. -         suffers from spinal stenosis and a back injury and last

;iworked at Dean Dairy in August of 2013 and has applied for $81.

            80.    There have been many email and text message exchanges between

i; Ms.9lland          Ms __         some of which have been read by the minor child. Ms.

;\-attitude and viewpoint of Ms. -                     has remained constant throughout
i'


i the    last eight years as indicated by Plaintiff's Exhibits ·14, 16 and 21, for example;

 : whereMs. -has calledMs.-an "f-ing cunt"and referred to Ms.-

     as a "court-ordered parent" until you are no longer designated    as such, and using

     other profanities.

            81.     Ms.-and Ms.~ot into a physical altercation in the child's

     presence during one of their custody exchanges resulting in each of them being

     charged with disorderly conduct.

            82.    After gaining custody of the child, Ms. -            promptly obtained

     various medicalrecords and reports from doctors the child was goingto in the

     Cincinnati, Ohio area and she then established all of the necessary medical and

     other therapy and services for the minor child in Mercer County, Pennsylvania.

            83      Piaintiff-       told local providers that Defendant -         may be

     suffering from Munchausen By Proxy Syndrome (a condition suspected by this

     Court and others throughout this case) which caused those providers to be very


                                                14
      skepticat of f-111s. -               intormation   that she attempted to provide about the

      child's treatment history and future needs.

             84,      Ms. -           had a difficult time with school and various providers in




 i-
:jsetting      up :;1 uustlng relationship. in part, by information given to them        by Plaintiff

l[.

             85.      Tile minor child first attended West Hi!! Elementary School in Sharon

      when she returned to Pennsylvania and according to the school principal and the

      guidance counselor; ner attendance declined dramatically after Defendant-

      resumed litigation shortly after she got out of jail. See Plaintiff's Exhibit 34.

              86.     The child became defiant and hao a negative attitude towards school

      and reported that her mother (Defendant-                       told her this was not the right

      place for her and that she should be Cyber schooled.                Plaintiffs Exhibit 34. The

      minor child also advised that she would be fine with attendinq West Hill if her

      mother supporteo tnat school

              37      The minor child reached important developmental benchmarks at

      West Hill Elementary in her first two months of school there, which she was not
      able to reach In the prior 11 years. Plaintiff's Exhibit 34.

             88..     This chiid also demonstrated           to   the school that she "is a bright,

' courageous and taiehted indlviduai." Plaintiff's Exhibit 34.

             89.      PJa1J1trff-s extended familyin Mercer County including her

1     grandparents, ~vo uncles, three aunts and various cousins. but Deferidan-

      has no relatives.   in   this area
                                                         ,-..-·-




         90.    Defendant -           has no significant           ties to Mercer   County,

Pennsylvania.

         91.    During the four years that Defendant-ad the minor child in

the Cincinnati area, they resided with her domestic partner,                           age

48, at                           Hamilton,Ohio. Ms.-and Ms.-have

been domestic partners for about seven years but have not resided together for

the past two plus years wheh Ms .....          eturned to Mercer County, Pennsylvania,

but they intend to rernam partners.

         92.   The minor child has a close bond with Ms.-.

         93.    Ms. -         ts employed and works approximateiy           50 to 60 hours

per week and is unable to travel to Mercer County very often because of her work.

         94.    Ms. -         tries to travel to Mercer County every two to three

months.

         95.    Defendant -        seeks tun iegaf custody of the minor child and

does not want Pla1ntiff-1nvoivedm any decision making for this minor child

and claims that she would stay in Mercer County.

         96.   Ms.-wouid remove the child from St. Stevens Schooi and put

her in the Mercer School District closer to where she now lives and would remove

her from outpatient mental health treatment at the Community Counseling Center

because of pnor conflicts and would instead use St Anthony's Point and have the

child undergo trauma therapy.

         97.   Defendant-would removethe minor child from the Capable

Kids Treatment Program where she receives PT, OT and speech therapy and



                                          16
     would take her to the Sharon Hospital programs where she was earlier in her life

     or to New Castle which is in Lawrence County,

            98       Ms, -         would also change the pediatrician hack to the child's

     original doctor or would use a different pediatrician.

            99      Ms.-wouid have the child continue to go to Children's Hospital

     in Pittsburgh for dental treatment so the child life wouid be involved and would

     continue     with   doctor   appointments    in   Pittsburgh   for the   child's   ears   and

, gynecological needs.

            100.     V\/hi!e Defendant -was             in Cincinnati for four years. Plaintiff

-travelledthere numeroustimes to visit with the minor child but was refused

JI   access to her by Defendan-

            101.     VVhile in Cincinnati, Defendant-           was Court orderedto bring the

     child to Mercer Countyto see Plaintiffllllwhichonly happenedtwice within the

     first six months of that four-year period.

            102.     The     guardian    ad litern disagrees    with   Defendant -             and

     recommends that no significant changes should be made regarding treatment

     providers and doctors for her education at the time of the hearing.

            103     Ms. -           was charged and found guilty in Ohio of custodial

     interference, a first degree misdemeanor, and received a 175 day suspended jail

     sentence;

                                        CONCLUSIONS OF LAW

            Detendant/rnother      now seeks to resume the full physical and legal custody

     Order she had after the initial custody hearing in 2009 which she appealed. She



                                                  17
!!still believes that' it is not in the best interest of thrs minor child that Plaintiff.
:j


,1111f11ave any say whatsoever regarding the minor child's education, medical

,:and/or any Other develcpmentat areas of the child, but should be permitted to have

[visitations
 '           on some
                ..   weekends.
                     .
                     .  . .   .it should. .be
                                            . noted that the Court's intention in
     ;




     :2009 was that the custodial rights of Plaintiff                            would be expanded after

:\the Court was satisfied with some supervised visitation of her capability and

         appreciation for the child's            medical   conditions,     and that Ms. -                   would

         eventually have shared iegaJ custody rights and expanded unsupervised partial

         custody to this minor child. However, the extended appeal by Defend an-of

         the rnitial custody deterrmnation put that plan on hold for a substantial period of

                    in   addition.   Defendant -             failure dunng that appeal period. and

         throughout the time of the initial custody proceeding, to make the child available

         for the supervrsee visits also thwarted the efforts of the Plaintiff to develop her

         relatrcnshrp •:;.11th the.rrunor .-::hikf.

                    Shorrly after the appeal was denied.Defendant -movedwithout

         permission to the Cincinnati, Ohio area to be with her new domestic partner. That

         relocation was eventually denied by the Court and the child was ordered                            to   be

         returned to Mercer County.            It wasn't until four years iater        In December of 2013,

: and thousands of dollars later for legal fees for custody actions                            ,ri   Pennsylvania

     and Ohio . that the chilo was finally returned to Mercer County, Pennsylvania when

     the policelocated the child outside of Cleveland,                   While   111   Ohio,   Ms. -was
'supposed to be transporting the child to Mercer County. Pennsylvania for

     visitations. but only a handful occurred. in addition, despite Ms. -claim


                                                           18
 :i
 !1
 ,!
     ;
 :i
 '.i
 !!that Ms.-could              see   the child anytime ff she drove to Cincinnati,   each time Ms,
 n
~erit to Cincinnati. the visitations never occurred.
 n,,
 I!            Furthermore, many of the extreme medical conditions offered by Defendant
 n

IJIIIIover the
 ii
                            years to excuse the failed visitations with Ms-and to

 !!maintain that the child should be in her care, have now been negated.                While this

 :!minor child still has some developmental              delays, is autistic and needs various
 ,;
 '.i

 i levels of treatment and a special education           program, under the care of Ms.-
 11

 (! her medical condition has improved dramatically along with the child's ability to

 lJ      perform independent    tasks such as feeding, bathing, going to the bathroom,
 r;



 !!walking and clothing herself.
 nii
 H
 i             There have been numerous contempt and special relief hearings in the last
!!
lj       several years between the parties that have not been detailed or outlined in the

i! Findings       of Facts that are also si~nificant in the Court's determination of what is in

i!the best interest of this minor child in this very unusual custody case.              in no time
\!;·

li throughout
\1
                     this Court's 13 plus year career, has it ever been necessary to actually

)! sentence a mother to Jail. Hence, in line with the Court's duty to evaluate each of

! the         16 factors under the custody statute. the Court makes the following
li
Ii observations:
!l
:;             {1)     Which party is more likely to encourage and permit frequent and
!l

i: continuing contact between             the child and another party.

               The record is clear beyond a shadow of a doubt that Plaintiff-               is the

         oniy party in this custody battle who is likely to encourage and permit frequent and

:f continuing        contact between the child and another party. While the child has been



                                                    18
        Plaintiff's µnys1cal custcdy. -:;ni=:' nas permitted the mother and her significant

      other to have phone contact with the cruld on a rer:1ular basis even though it may

      have been monitored      at times.      She nas also tol!avve;j the custody Orders

      substanuallv U&t;pite the var.ous orobiems created with the rancor between her

::andMs-
             Whiie Ms -has been reluctant over the past two years to allow Ms.

111111
;;
              to travel outside cf Mercer County with the child . it is based upon the

,._- realistic; concem that she wiU not return the child to Ms. -
if                                                                            The history in the

iipast eight year~ witn the substantial non-cornpliance by
                                                         Ms. -with
                                                                 every
;i                        .                                                         .
ii custody. Omer. and the efforts that it took to have the child returned to Mercer
;;                    .                                 .     .   .   .   .

i
!! County, justify Ms. -               reluctance to oerrnlt much travel outside of Mercer
;•.


il County.     Accoroinqty, this factor is completely 1ri favor of
ii
             (2}     nir::: present and past abuse committed by a party or member of

!i the party's      household, whether them is a continued risk of harm to the child
d
\i or a11 abused party and which party can better provide adequate physical

1; safeguards and '3upervision of the child.
 p
 :!
i!           Abuse is not a major factor in this custody litigation:           however. it has
 h!
ll

 ljpeiiodically occurred and often in the presence of the minor child, The physical or
 i
 i! verbal    entarqrement    between the parties has been ongoing and is likely to
 i;
 !i·r continue to occur particularly    when they are in a shared legal custody setting.

             Obvrcusiy, abuse takes many forms              The minor physical abuse that has
 :l
 il occurred       between Ms. -and
                                  Ms.-s infrequent and usually only occurs
 H

 !i when    one or botb parnes become extremely frustrated and/or angry.



                                                  2(J
                                                           . •-..,~.




         Furthermore, the attitude and mindset of Defendant-s as a person

who rs totally manipulative      and totally controlling   of persons around her and

particularly her child's life.   These traits are indicative of a form of abuse.            Ms.

-has demonstrated in texts and emails and her comments to Ms.-over
the years that she has the utmost disdain for Ms __                    and will do everything in

her power to hmlt her access to tnts chilc. She does that primariiy by manipulating

people, places and events regarding her child's life.

         The Court also views the extent of Ms.-manipulation                        and control

over her rnmor daughter as being overreaching as well.                   Whiie there are many

benefits to Ms._..nowledge              of her child and the various treatment courses,

her approach is smothering        her daughter's   independence           and growth.    In this

Court's mind, it is borderline abusive.

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

child.

         Both parties are quite capable of performing parental duties and this factor

is therefore even

         (4)   ThQ negd for stability and continuity in the child's education,

family life and community life.

         This minor child needs stability and continuity with regard to her education.

family life and community life.      To an extent, Ms. -                   provided that to her

except it was alwayssolely       on Ms.-terms and conditions.                      Furthermore,

Ms.-hasdemonstrated
                  with her relocation,and failure to return to Mercer

County. a firm belief that only she knows what is rn the best interest of this child



                                            21
 ii
 [ano it doesn't matter whether a Judge, or a significant other, or a physician, or
 'i


 !)therapist
 •'      .
             or educator tells her otherwise.                 Stated simply, it is her way or the

 i highway.
 "::
             it is also ver1 likely that Ms--             will relocate again since her housing

 ![arrangements are only temporary.          She plans after receiving full physical custody
 !
 :;


 [to change the child's school district. medical providers and counselors. Obviously,
 •I                                                       .
 i;

 )!this will give
                Ms.-a fresh start to take control                     once   again of   an   aspects of

 ilher child's life
 l:



 i:          On the other hand, Ms .•           has iived ln the same house        and    has had the
 (
 [same domestic partner for about seven years.                    Furthermore, she has had very

,,1iiittle change m her lite except for her injuries          on her Job. Moreover, she has very
 at



i:1ittle drama in her life, except that caused by Ms                          Moreover,      as   pointed

'lout by the guardian, this child needs to be insulated from conflict, and could thrive

i;in     a stable setting.     Her need for stability is critical to reducing her stress and

;ianxiety which w!ll lead to quicker and more complete development of this child. in

«short. this is a critical factor in this child's iife.

             (5)       ThQ av~ilability of axbmdod family.

             Ms. -hasnoextended family in Mercer County orin the surrounding

              Ms. ~n the other hand. has grandparents.                       aunts and uncles and

ji     cousins m this area as well as her domestic partner of seven years who is famiiy to
i,


liMs.-
n                  .


             (6)       The child's sibling relationships.

             There are no sibling relationships in this case



                                                  22
           (7)    The well-reasoned preference of the child, based on the child's

ilmaturity 311d judgment.
ii,.
;


           The preference of the mmor child in this   case   is clearly   that   she wants to be

l;with
r·
       her mother, However, this position . .~1as totally predictable and expected given

.:the overbearing
;·
                      dominance     ner mother     has had on every aspect of her life

[parttcutarty With whom sne snoulo live with, where she should go to school and
r '




ii. how she snouio view other people particularly Ms.-              This child's viewpoint is

:;to an extent the reflection of her mother's attitudes.
:1

;!         The preference of the child is not well-reasoned.      It is elem from the report
ii
,;
!iof the guardian ad Ftem, and from this Court's listening to the minor child, as weli
-!
i
!; as the testimony of all the other witnesses including school personnel through

(documents. that this minor child because of her developmental                    delays is not
i"



!:capable of making a well-masoned decision on such complicated areas. Moreover,

'! she   appears to simply repeat the position of her mother on cntical issues since she

(has a strong desire to please her mother.

           Thus. the preference expressed by the minor child bears little weight with
,.i

[thrs Court under the circumstances she was placed under for the past decade as
,l
:;
!! well as her developmental delays and the alienation of her affections for Ms-

           (8)    The attempts    of a parent to turn the child against the other

      parent, except in cases of domestic violence where reasonable safety

!imeasures are necossary to protect the child from harm.

           This is the first case in this Courts 13 year career of sucn a blatant effort oy

, a parent to turn the child against another parent             In fact, Defendant-



                                              23
 [throuqh her conduct and mindset over the last eight years has proven her promise
 q
 !!made to Ms -th a writing prior to the filing of any custody proceeding

 i!between them, that if Ms.-ook her to Court, she would "never ever sign
 ;·


 [anythinq
 ti .
           that . gives
                  .
                        you parental acknowledqrnent; visitation or 'rights or
 i:
 [responslbllitles' ...         I will fight you with all I am worth with every core of my
 L\!
  ii
 i!being.'i         Plaintiffs Exhibit 9 from the initial custody proceedings resulting in the
 r:
 '.i

 i:;, February 20, 2009 custody Order.          Pnor to that irutial custody proceeding, Ms.

lllllalso promised fVis. ~                     writing that the "second you serve me with
 \(



 i anythh1g, is the second you will no longer get to see her or talk to her or me

 ip until you hold       an Order that says different.n Id.
 11
 L
               Ms.-stm continues to denigrate Ms.mllverbally to the minor child
j;

!!and in emails to Ms-and/or texts.                    For example, Ms.-has told her
!I
[!daughter that Ms -s the enemy, the court-appointed person, kidnapper. etc.
n
i Ms.-aisotells her daughter                  that someday they will be free fromMs-
i:


[i and she       wH1 not have to do anything Ms.9llasks of her.

     ,         in conclusion. this is a dear cut case of parental alienation by Ms. -
ii

I/against l\ils.ll9lland this factor is weighted hagviiy against Ms. -                   The
!i
n
i Ohio        authorities   seem to agree since she was found guilty of a misdemeanor
d;
J,i.offense of custodial interference

i:            {9)      Which    party is more likely to maintain          a loving, stable,
d
!! consistent and nurturing relationship with the child adequate for the child's
I'
\<

ji       emotional needs,
H




                                                  24
        Ms. -         relationship \Nith her dauqhter that the Court has come to

learn ard appreciate over the years is extremely consistent because she totally

dominates evervt\lmg that. her ctiild rs mvoived with. However, this domination and

control is. not nurturinq because :t rs stifling the child's growth including basic

human    functions such   as reeding herself going    to the bathroom herself, bathing

herself, dressing herself etc      Ms. -          also stifles the development       of her

child's emotional needs by making her totally entrenched        in the desire to please

her mother only. it aiso appears that many of the medical exarninatrons, doctor's

visits and treatments over the years by· Ms,~f her minor daughter are very

questionable     Accordingly, H·11s Court takes the viewpoint that Ms. -

professed love for ner daughter is stilted, self-centered and damaging her child's

development.

        On the other hanq, v.;h\1E.' she has beer, in the physical care of Ms.-

since Df::cember or 2013, the cnitd has no major medical problems and, according

to the scnoo: and her counselors           and treatment    providers.   she    has made

substantia: unprovernents in her life. 'vVhile with Ms-          she new feeds herself

and uses rnguiar s,iver.,vare, b::nhe~.: harsalf. getg: dressed on her own and goes to

the bathroom on her own, and no ionger needs                a G: tube.         Ciearly   her

independence is thriving under the imperfect parentinq ot Ms. -                      partly

because Ms.-s trying
                   to get the minor child to become independent and to

grow on her ownunderthe guidance of Ms.-teacriersand various medical

providers as opposed to the smothering, control and manloulation by Ms.-

Therefore. this Court finds that Ms. -           is definitely more likely ta maintain a



                                            2S
loving, stable, consistent and nurturing relationship with this child that will foster

growth in aJI areas of the child's life.

       {1 OJ   Which party is more likely to attend to the daily physical,

emotional, developmental, educational and special needs of the child.

       Both parties    will   attend to the daily needs of this child. but tlle question is

how they go about     it

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

       The parties live 25 miles apart         When Ms. _.,as released from the

Mercer County Jail, she chose to live with people she knew on the other side of

Mercer County. She gave no explanation as to why she did not try to live closer to

Ms.-or in the same school distnct. Ms.-hasno prior experience with

the Mercer School District or with any medical providers in that side of the county.

Thus, Ms. -                choice of temporary housing has created a short distance

barrier between her and her child. the child's school and medical providers.

       {12)    Each party's availability to care for the child or ability to make

appropriate child-care arrangements.

       Both parties are equally avauable to care for the child         and   have equal ability

to make appropriate child-care arrangements. Accordingiy, this factor has little

bearing on the ruling in this matter.

       (13}    The ievel of conflict       between the parties   and the willingness          and

ability of the parties        to cooperate     with   one .arrother,    A party's    effort    to

protect a child from abuse by another party is not evidence of unwillingness

orlnability to cooperate with that party.


                                               26
        There has been substantial conflictbetween Ms.-                 and Ms.-

throughout the past eight years.      Ms. -        has been very willing and able to

cooperatethroughoutthe years with Ms.-                 However, Ms-has only

occaslonally been willing and able to work with Ms.9lleven 'though there have

 been times that she claims that she is willing and able to cooperate. Her conduct.

 however, speaks volumes as well as her continuing attitude against Ms.-

 involvement with her minor daughter.      Given the continuing conflict between the

 parties which has been witnessed       over the years by the minor child, and the

significant stress and anxiety levels created on this minor child as a result, it is

clear that the cause and effect of that conflict on the minor child is not in the child's

best interest and must be reduced         as much as possible by limiting contact

between
      Ms.-and
            Ms-

        It appears clearly to the Court that the conflict arises primarily out of the

manipulative and controtling personality of Ms. -                Therefore,   this factor

weighs heavily against Ms.-            since the Court finds that it is her demeanor

and approach that precipitates conflict, which is not in the best interest of this child.

        {14)   The history of drug or alcohol abuse of a party or member ofa

'party's household.

        There is no significant drug and/or alcohol abuse history in this case. This

factor is irrelevant.

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

party's nousehold.




                                          27
                                                                -   .....




            Neither party currently has any mental or physical condition, nor does any

J;-nember of a party's househoto. that has any 31gnificance in this custody case.
ii
"!"
:;The oruy 'perenr. with substantial history of mental and/or physical conditions is the
"

llrninor
L
         child herself. Ms __
                                   .
                                       has back issues that do not appear to interfere with
 '
:)her day-to-day functions or her abi!ity to parent this child                  Her past history of

;ianxiety appears to be in remission and is also                not         a factor m this   matter.
ijAccordirigiy, this factor is of little relevance in this case.

           (i6)   Any other relevant factor

           After years of taking testimony trom the parties in this matter. it is the finding

     of the (,ourt that the demeanor, attitudes and conduct of Ms-                    in controlling

     and manipuiat1:1g every aspect of this child's   Hfe and her constant         interference and

     efforts to sabotage the reiationshrpbetween the minor child and Ms.-                       that

     the Derendantanother   has caused damage that rnay be irreparable to her child.

     Ms.-overbearing
                 relatlonship with her daughter is detrimental to the long-

     term well-being of her child because she has not been giveh an opportunity to

          into an independent individual. Furthermore, the record clearly establishes

          Ms.-parentfng style {Whichmay have been well-intended)                                has

 actually stifled r1er daughter's growth in all areas.

           In the last two years when the child has been prirnarilywith Ms-the

child has made far more improvements           in   all aspects of lier i1fo (except the stress

and anxiety created by her mother) than was made m the six years before when

she was in Ms. -full custody;                   lt is also clear that 1f the Court were to

continue tc ;;:{!low full custody ir, Ms -             as it did m 2009, that the beneficial



                                              28
                        -.-........




      relationshipbetween the child and Ms.-vvouid deteriorate, and the Court

      ~trongly believes that the child's achievements in the past two years would be for

      . not and the child would regress.          if appears that the best hope for this child to

      develop is unfortunately by limiting her contact and control of her mother.

             \/\/hat is also clear to the Court from years of litigation between the parties is

      that the shared legal and/or physical custody arrangement              between the parties

 Ji   would be totally adverse to the well-being of this child.           The guardian ad litern

 /i   clearly documented              how the stress and anxiety levels of this child increase
 n
 [because of the conflict between Ms,-and Ms.-                              which the Court finds

 i is primarily   precipitated by Ms-                  The Court also finds that the only hope for

 ii this chilo to achieve growth in her medical, mental and social condition is to have
 ;!
 i one      person solely in charge of all decisions pertaining to her well-being.              Ms.

,....          has' already demonstrated throughout the prior eight years that her

 li methods     and approach have not worked and in fact have been detrimental to this
 ;1


 i child.    Thus, the Court finds that it is in the best interest of this minor child   tha-         .
 i,

-have              full legal and physical custody of her and that the involvement of           Ms.
1;

!111111 be kept to a minimum                  because of her overpowering influence and control

ijof her daughter, and the battles she has created over the years, all to her

i;!; daughter's   detriment.
)'


I            HENCE. THIS ORDER:




                                                      29
 11
 !;
 I
 1!
 \i


 jl      lN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA
     i                         GIVILACTION - LAW
           . l    .:
          .. \.. ·~.~L-1
                      J


                            !aintiff                                                    -0
                                                                                        ;:o ::o
                                                                                        C)C:
                                                                    No. 2008-2899       -I~
                                                                                        zs: ;.r.:
                                                                                         S:r->
                                                                                         ,.;._,
                                                                                                    -·
                                                                                                    en
                                                                                         Cit_,:,    -0
                                                                                         -\-·--·    =i:
                                                                                                     ..
                                                                                                                .f         1,
                                                                                         )_;. C·
                                                                                         ?Jf1'i     N                ;•....-"i':
                                                                                                                     l.     l,

                                                                                                                      ·_;)
                                                                                             -<     N
                 v.
                        J. a.                                                                        c


                           Additional Defendant


                                                            ORDER

                 AND NOW, on this            is" day       of April, 2016, IT IS HEREBY ORDERED that

 F Plaintiff.                          shall have full legal (meaning the sole and exclusive right         to

limake all major decisions affecting the best interest of the minor child including, but
 :,

 !;not limited to. medical, religious and educational decisions) and physical custody
 ":,
il


!j(meaning             the rightto exclusive physical possession             of the minor
                                                                                        child),-                             :
;;"
                              born                                subject to periods of partial physical
l.
'l
;!custody {meaning the right to take possession of the child for a limited set period
;)                                                     .                       .



!iof      time) in Defendant .                                      to be exercised only within           the
H
)!geographical
•;
               boundaries of Mercer County, Pennsylvania, as follows:
'ffI
;I
1:
                         'l.   Every other weekend on Saturday mornings from 10:00
                 a.rrL through Sundays at 7:00 p.m. commencing Saturday, April 23,
                 2016.

                       2.                       shail have the rightto one phone call
                 per day with the minor child which shall not exceed fifteen (15)
                 minutes in length, and such other communications with the child as
                 agreed upon by Plaintiff,

                      3.    Such other periods             of partial    physical    custody     as
                 agreedtob~

                        4.     Custody exchanges shall occur at the Shenango Valley
                 Mall or any other place agreed upon by the parties.

                                      shall always encourage the minor child to iove and obey

                         Neither party shall make any derogatory remarks that can be heard or

     [read by the minor child about the other party.                                      shall not advise
     ;;

     11   her minor daughter that she does not belong in any particular school, or that she
     d

     i should
     p
     ·,
                 be placed in Cyber School, or receive any particuiar type of diagnostic tests,

 i mental        health evaluations and any other sort of treatment of any kind.
 riil
 H              Since the parties appeared prose in this matter, the Court notes that by this
 il!J
 !iOrder                        has no legal duty or obliqation to provide any information to
 ii
 !l
 i
                                regarding     academics.   medical.     dental   and/or    mental     health
if

ilcurriculum.         programs,     recommendations        and/or treatments.        Furthermore,       this
H~ i

il Order means           that                      is not legally entitled to copies of any records
H

i,, of any
tt
                 kind pertaining to the minor child                                 Without the written
l;



1! consent of
d
                                     Nor is                      , without the express consent Of

                     permitted    to speak    with and/or attend any parent/teacher conferences.

          doctor appointments, occupational therapy sessions, physical therapy sessions,

          speech therapy sessions and/or mental       health evaluations and/or treatments.
     i
     i!
    Ji
    if    In the event that                             period of partial physical custody

 ilcoincides
 ;1
             with Christmas Day and/or Easter Sunday, then that holiday supersedes
 ;i

 !!her period of partial physical custody. ff IS FURTHER ORDERED that
 i:

llllllnall not be permitted
 H
                                 to remove the child from Mercer County at any time
 )[

 ijwithout the express written permission o
 :i
 i!       Residence and Relocation of Parties:              Each party shall maintain her
 q
 Jicurrent residence and in the event either party intends to change her residence,

 lfthen they shall give the other party at least thirty (30) days written notice of the
 ll
 d

[date of the move arid the new address and telephone number. However, the law

lihas special rules that are mandatory before a party can move, but these
!!                                            .
,·:
i rules do not apply to all relocations .
;;
                                                  The rules set forth below only apply to
!J
 !i"relocations" that meet the definition in 23 Pa. C.S.A. § 5322(a): "A change
 ;!
i';lin a residence of the child which significantly impairs the ability of the non-

i1relocating party to exercise custodial rights."             Therefore, any party who
;!
ii intends to change   the residence of a child, that significantly impairs the non-
r,_
!;; relocating party's custody rights, must         give the other party sixty (60) days

[advance written notice by certified US mail, return receipt requested and by
(j
    l

j reguiar US mail, of his or her intent to relocate and provide the following in
i                                                             .
l!that notice pursuant to 23 Pa. C.S.A. § 5337:
ii


                1.     The address. of the intended new residence.
:;
-:
                 2.    The maiiing address, if not the same as the address of
          the intended new residence.

                 3.    Names and ages of the' individuals in the new residence,
          including individuals who intend to live in the new residence.
       4.     The horne telephone        number of the intended     new
residence, if available.

       5.     The name of the new school district and school.

       6.     The date of the proposed relocation.

       7.     The reasons for the proposed relocation,

       8.     A proposal for a revised custody schedule.

       9.     Any other information which the party proposing the
relocation deems appropriate.

          10.   A counter-affidavit as provided under 23 Pa. C.S. 5337
( d) ( 1) which can be used by the non-relocating party to object to the
proposed relocation and the modification of the custody order.

        1 t.  A warning to the non-relocating party that if the non-
reiocating party does not file with this Court an objection to the
proposed relocation within thirty (30) days after receipt of the notice,
that party shall be foreclosed from objecting to the relocation.

This Court retains jurisdiction in this matter.

                                    BY THE COURT:




                                                                                   J.




                                                                       .    .·   ·.'        , I

                                                                     {,l._· -t·:l-(j
                                                                                       li
                                                                        20\& AUG 12 PH 3: 08
                                                                             i\UTH A. BICE
                                                                            PROTHOHOlARY



        IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA
                                               CIVIL ACTION-LAW



        ...           ·   Pl.alnti'ff


                v.                                                 No. 2008-2899

                          ~
                          Defendant




\

I
        J-      v.

                     P91111.     .
                       Additional Defendant


I                                              RULE 1925 OPINION

I               This is .a custody case regardtng a teenage girl who was born during a

        domestic relationship between appellant,                                          d appellee,-
I
    -                This is a heavily litigated custody matter that has come before this Court

        off and on since July of 2008. This is also the third appeal to the Superior Court

        filed by appellant following an Order of this Court. All of those appeals have been

        unsuccessful.

                The Superior            Court is directed to the 29 pages of Findings of Fact,

        Conclusions of Law and the most recent custody Order dated AprH 15, 2016.


        1
          Additional Defendant,                   is the biological father of the subject minor chlld. However,
        he is serving a life sentence for a murder that occurred unrelated to this matter after the child was
        c?~~~i~e,?-_ __ ~e is also appellee's nephew and was chosen by appellant and appellee tb father a         )   4
I

I
I
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                                                                                                 '



     Essentially, appellant is the biological mother Of J.R. who was born and raised by

     these two domestic partners in the first five years of the child's life. Their breakup

     thereafter led to appellant's refusal to let appellee continue to co-parent J,R.

     prompting appellee to file a custody complaint.     Appellant had promised appellee in

     an ernaii that she would fight her With every breath of her being against custody.

     Appellant has been true to her word and has thrown many hurdles in front of

     appellee to prevent.and/or frustrate her retationshlp with the minor chifd for the past '

     eight years.

              Appellant was initially   granted full custody with supervised visitation in

     appellee by Order dated February 20, 2009.        The reason for supervised visitations

     was because of the alleged poor health of the minor child and the Court wanted to

     make sure thatappellee's     relationship with the child was rekindled and that she was

     capable of handling these various medical problems.         The ultimate hope of the

    Court at that time was that the rancor between the parties would subside,              the

    relationship between the minor child and appellee would be rekindled and appellee

    would be proven .capabte of caring for the child's various medical and emotional

    issues.

              Unfortunately, appellant engaged in an extended course of conduct over the

    last.eiqhtyears to interfere deliberately with the custody rights of appellee.   At first1

    appellant hid behind a myriad of medical and emotional problems as a reason to

    cancel numerous supervised Visitations.        Then, she relocated to the Cincinnati,

    Ohio area without leave of Court or permission from appellee.         She left the only

    home the child had known, a home that was in appellant's name, but a mortgage

was only in the appellee's         name, and appellant refused to pay the mortgage.

                                               2
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     11




         l
              Furthermore, appellant left Mercer County where she- had established            all of her

              medical providers for her child including multiple therapists over the years and left a

              steady income stream behind without anysubstitute income stream in Ohio.

                      In the meantime, the child's home was lost in    a mortgage    foreclosure action

              since appeHee was not aware ih time of the default so that she could cure lt, so

              appellant was permitted to remain in Ohio with the child until the relocation litigation

              had been concluded.     While that litigation was pending, appellee was again given

     / the right to have visitations        with the child, but appellant was ordered to bring the

              child to Pennsylvania tor those visitations.     Again, appellant had tons of excuses
     I
     j        none ot which the Court found valid to avoid bringing the child to Mercer County for

             visitations.

                     Appellant was ordered to relocate the child to Mercer County by Order dated

             August 24, 201 O. Which was upheld on appeal.         Appellant ignored that Order and

             subsequent Orders giving her additional time to make living arrangements back in
 I
.,           Mercer County,    but she was obviously stalling and the Court finally held her in
!1
 I contempt of Court for willfuHy            violating   its Orders and sentenced   her to a six month /
I
 I
             term of incarceration with purge conditions and issued a warrant for her arrest on

             March 29, 2012.

                    Appellee filed a motion to modify custody seeking primary physical custody

             of the minor child and she was granted temporary primary physical custody on

             October 2, 2012 pending the return of the child to Mercer County and overslqht by

             Mercer County CYS to make sure that the child was safe, that appellee's home was

          appropriate and that any medical providers were in place if needed for the child's

         care.      Appef!ee registered the 2012 Mercer County Order        In   Cincinnati, Ohio and

                                                         3
                                                                                                           ((J}
                 Appellant's first issue in her Concise Statement bf Matters Complained Of is

          that the Court failed to adopt the recommendation of the guardian ad lltern of shared

          legal custody.   The guardian ad litern made 14 recommendations to the Court.                  Jt..

          Ex. 1 pgs. 12-16.   In paragraph 8(a) of the report, the GAL opined that            JR. would
          benefit from joint legal custody for equal decisions.      The GAL, however, discussed

          in her testimony and throughout her report the negative impact ihe conflict between

          appellant and appellee caused to J.R.      Moreover, the record is replete with conflict

          between the parties on medical treatment, counseling, therapy and education.

          Appellee had a much different view of how to address J .R's needs than appellant

          The GAL seemed to support the position of appellee and could not emphasize

          enough how the parties' disputes exacer.bated J.R.'s significan·t          anxiety problems.

                 it is also noteworthy that appellant is extremely controlling and is not capable

          (as demonstrated over the past eight years) of considerinq            any viewpoint from
    .I

          appellee on any issue pertaining to J.R.       Simp-ly stated, it is appellant's way or the

          highway.   Throughout this trial, and other proceedlnqs, appellant always attacked

         the Opinions and ability of appellee to rnake appropriate decisions for J.R.              This

         position was flatly rejected by the Court and the credible evidence showed that J.R.

         has made vast improvements and gained more independence over the past two

         years when in the primary physical custody of appeflee.        Notably, the GAL stated in

         her report that co-parenting was not a viable option in this case and that "flexibility

         leaves room for conflictand battles over power and control."         Jd.

                Obviously, the recommendation of the guardian was just one piece of

I        evidence in-the possession of the Court whenwelghing all of the 1'6 custody factors.

         The Court ultimately declined to follow the recommendation of the GAL because of I
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                                                         an     of the other sordid      history involved     in the case and the Court's ultimate

                                        I conclusion                      that the best interests of J.R were not being served over all of these

                                        I
                                        i·
                                                         years by appellant by withholding            and interfering wfth the custody rights of the

                                                         appellee.        In addition, the Court found that appellant's conduct in controlling and
                                       i                 manipulating every single. aspect of her child's life       and   constantly interferingwith the

                                                         relationship      between    J.R. and appellee, that the child has probably            suffered

                                                         irreparable damage.           Moreover,     the Court found that appellant's       overbearing

                                                         relationship     with her daughter was detrimental to the rang-term wellbeing of the child

                                                    since she was preventing her child from developing the_ social, emotional and

                                                     physical skills          necessary to be independent and to mature..              See the Court's

                                                    discussion of Factor 16 on page             28   of the, Conclusions   of Law.

                                                                     In contrast, since the child has been with appellee for the past two years, she

                                                    has improved leaps and bounds beyond the way she was for the preceding six

                                                  years while in the custody exclusively of the appellant.                   In addition, as noted often

                              .1                  in the GAL report, the conflict caused by Ms. -In the past two years has

                                   I          continued to exacerbate                 emotional problems with the child       and has caused the child

                                              to rebel against efforts by appellee and school authorities to improve her life.                      For

                                             example, appeilant would tell her daughter that when she gets her back, she will be

                                             horneschooled and she should be horneschooled and does not have to worry about

                                            being mainstreamed                     where she. was initially thriving before appellant was granted

                                            more extensive contact with her after her jail stint.

                                                                 Thus, in considering all of the evidence the Court has heard since 2008, and

                                        particularly the misinformation                     given to the Court over the years by appellant, it was

                                       clear that her role in this child's life was detrimental to that child and that any

                                                                                                        6
·······-··   _,_,   . ·····-·-······-        ..   •···     .-    .
 extensive involvement in decision-making processes involving her child would lead

 to conflict, which would lead to disruption in this child's development.              For that    I


 reason and many other reasons, the Court granted full physical custody to appsliee

 with periods of visitation in the appellant        That was the corner that appellant's

 conduct over the years forced the Court and the child into.             She has no one but

 herself to blame and has even indicated at times throughout Court proceedings                in

 her weak moments that she is her own worst enemy.

          The other Side of appellant's argument is that it was error to prevent her

 "access to academic, social, medical and therapeutic support services for the child"

 so that she can learn to co-parent with appellee.       The last thing this Court wanted to

I do   was to limit appellant's involvement with her minor child.         However, appellant

 over the years   left the   Court with no choice once it became obvious when the child

 was placed into, the custody of appellee, that the child was thriving, growing

 emotionally and    soclallv and was     becoming more independent without the constant

 day-to-day, minute-to-minute           control and manipulation       of appellant.     It also

 became     apparent   throughout   the last two years    that    as appellant became     more

 involved with her child again, even though the child was in appellee's primary

 physical custody, the stress level and anxiety in her child increased dramatically.

 The primary source           of that    increased anxiety       and   stress was appellant

 Unfortunately, the only way to remove that problem was to narrow and limit the

 involvement of appellant mother.

          There is no doubt that the child is in a better place with appellee having full

 custody and control over all decisions of how to overcome the damage that

 appellant mother unwittingly caused to the development of her minor child.               J.R.'s

                                                7
only hope for the future was unfortunately to remove the source of that conflict

Thus, it was with   a heavy   heart that this Court felt compelled to grant full custody to

appeltee with visitation rights only to the appellant mother.             Hence, for the

foregoing reasons and the reasons setforth in the various        1925   Opinions, Findings

of Facts, Conclusions of Law and Orders issued throughout the history ofthis case

including numerous contempt proceedings against appellant mother for failure to

follow Court ordered visitations for appellee, this Court suggests that the custody

Order entered in this matter on April 15, 2016 be affirmed.

                                              BY THE COURT:




Date: August 12.t 2016


rmb




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