J-A29045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.L.S.                                       :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
               v.                            :
                                             :
R.P.S., JR.,                                 :
                                             :
                     Appellant               :           No. 816 WDA 2016

                    Appeal from the Order entered May 4, 2016
               in the Court of Common Pleas of Armstrong County,
                       Civil Division, No(s): 2011-1474-Civil

BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED DECEMBER 19, 2016

         R.P.S., Jr. (“Father”), appeals from the May 4, 2016 Custody Order

that denied Father’s request for shared custody, which was entered following

Father’s Petition for Modification of the December 5, 2012 Custody Order

that granted J.L.S. (“Mother”) primary physical custody of their daughters,

F., born in June 2003, and G., born in June 2002 (collectively, “Children”).

We affirm.

         In its Opinion, the trial court set forth the underlying facts, which we

adopt for the purpose of this appeal. See Trial Court Opinion, 5/4/16, at 2-

25.

         Relevantly, Father and Mother were married in 2002, after living

together for an unspecified period of time.        Mother filed a Complaint in

Divorce in September 2011, which included a claim for temporary physical

custody of Children, pending the final hearing. At a Conciliation Conference
J-A29045-16


in December 2011, Father and Mother agreed to a temporary physical

custody arrangement.      On December 5, 2011, the trial court entered a

Custody Order, granting Mother and Father shared legal custody, and

granting Mother primary physical custody of Children. On October 20, 2014,

Father filed a Petition for Modification of Custody, seeking “to expand his

custodial time.”   On May 4, 2016, the trial court entered a Custody Order

granting Mother and Father shared legal custody, and granting Mother

primary physical custody of Children.     The Custody Order denied Father’s

request for shared physical custody of Children, and modified portions of the

December 5, 2012 Custody Order. Relevant to this appeal, the May 4, 2016

Custody Order provides that Father’s partial physical custody of F. may

begin when F.’s individual therapist indicates that F. is ready.

      Father filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement.1

      On appeal, Father raises the following questions for our review:

      I. Did the trial court err in finding that the best interest[s] of
      [Children] was for Father to have less custodial time than he had
      in the previous Order?

1
   We note that although Father’s Concise Statement identifies six issues for
appeal, the Questions Presented section of his brief identifies only three
issues, and the wording of those issues differs from the wording used in the
Concise Statement. In the Summary of the Argument section of his brief,
Father identifies all six issues, and indicates that the six issues “can be
consolidated into three areas of error on behalf of the trial court.” Father’s
Brief at 4. Because the Argument section of his brief includes a discussion of
all six issues identified in his Concise Statement, we will consider Father’s
claims on appeal.



                                  -2-
J-A29045-16


        II. Did the trial court err in applying the sixteen factors set forth
        in [section] 5328 of the [Child Custody Act (“Act”)2]?

        III. Did the trial court err in rendering decisions not supported by
        the weight of the evidence and findings of record?

Father’s Brief at 2. We will address Father’s issues together.

               We review a trial court’s determination in a custody case
        for an abuse of discretion, and our scope of review is broad.
        Because we cannot make independent factual determinations,
        we must accept the findings of the trial court that are supported
        by the evidence.       We defer to the trial [court] regarding
        credibility and the weight of the evidence. The trial [court]’s
        deductions or inferences from its factual findings, however, do
        not bind this Court. We may reject the trial court’s conclusions
        only if they involve an error of law or are unreasonable in light of
        its factual findings.

C.A.J. v. D.S.M., 136 A.3d 504, 506-07 (Pa. Super. 2016) (citation

omitted). Additionally,

        [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) (citation

omitted).

        Father claims that the trial court erred in finding that it is in the best

interests of Children for Father to have less custodial time. Father’s Brief at

5. Father argues that the trial court erred in applying the sixteen factors set

forth in section 5328 of the Act. Id. at 6. Specifically, Father challenges the

2
    See 23 Pa.C.S.A. §§ 5321 et seq.


                                     -3-
J-A29045-16


trial court’s findings under subsections (4), (6), (7), (10), (14) and (16).

Id.

      In regard to subsection (4), Father asserts that the trial court failed to

consider the stability that F. had since 2014, under the terms of the prior

Custody Order. Id. Father also argues that the trial court failed to explain

how the requirement that F.’s therapist indicate when she is ready to

continue with the custody arrangement will promote continuity or stability.

Id. at 6-7.

      In regard to subsection (6), Father claims that the trial court “failed to

consider the testimony of the court evaluator, and the parties’ testimony

that the individual therapist of [F.] recommended that [F.] be gradually

eased into spending more time with Father….”       Id. at 8. Father contends

that, therefore, the trial court’s decision is against the weight of the

evidence. Id. at 9.

      In regard to subsection (7), Father argues that the trial court’s

determination that F. “is not mature enough to make that decision”

(regarding her preference to live with Father half of the time) is against the

weight of the evidence because F.’s therapist and the court evaluator

concluded that F. could be eased into the shared custody arrangement. Id.

      In regard to subsection (9), Father asserts that there is no evidence to

support the trial court’s finding that this factor weighs in favor of Mother




                                  -4-
J-A29045-16


because “[t]here appears to be cadre of young adults at Father’s house who

like to party while [] Children are around.” Id.

      In regard to subsection (10), Father argues that the trial court’s

finding that Mother is more likely to “attend to the daily physical, emotional,

developmental, education and special needs” of Children is against the

weight of the evidence. Id. at 10. Father states that he testified during the

two-day trial that he is not opposed to counseling for Children or himself.

Id. at 10-11.

      In regard to subsection (14), Father claims that the trial court’s finding

is against the weight of the evidence, as the trial court found that Father has

an alcohol problem based solely on Mother’s testimony.             Id. at 11.

Additionally, Father asserts that G. was concerned about alcohol use by

someone else in Father’s household, rather than by Father. Id. at 12.

      In regard to subsection (16), Father contends that the trial court

ignored the court evaluator’s recommendations, and provided no reason for

doing so on the record. Id.

      In any custody case decided under the Act, the paramount concern is

the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338; see also

E.D. v. M.P., 33 A.3d 73, 79 (Pa. Super. 2011). Section 5328(a) provides

as follows:

      § 5328. Factors to consider when awarding custody

      (a) Factors.—In ordering any form of custody, the court shall
      determine the best interest of the child by considering all


                                  -5-
J-A29045-16


     relevant factors, giving weighted consideration to those factors
     which affect the safety of the child, including the following:

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

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

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

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

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

       (5) The availability of extended family.

       (6) The child’s sibling relationships.

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

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

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

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

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


                                 -6-
J-A29045-16



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

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

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

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

         (16) Any other relevant factor.

23 Pa.C.S.A. § 5328; see also C.A.J., 136 A.3d at 509-10.

      “All of the factors listed in section 5328(a) are required to be

considered by the trial court when entering a custody order.”          J.R.M. v.

J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted). Moreover,

section 5323(d) mandates that, when the trial court awards custody, it “shall

delineate the reasons for its decision on the record in open court or in a

written opinion or order.” 23 Pa.C.S.A. § 5323(d). The trial court may not

merely rely upon conclusory assertions regarding its consideration of the

section 5328(a) factors in entering an order affecting custody.        M.E.V. v.

F.P.W., 100 A.3d 670, 681 (Pa. Super. 2014). However, “[i]n expressing

the reasons for its decision, there is no required amount of detail for the trial

court’s explanation; all that is required is that the enumerated factors are

considered and that the custody decision is based on those considerations.”



                                   -7-
J-A29045-16


A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (citation and quotation

marks omitted).

      In its Opinion, the trial court undertook an analysis of the section

5328(a) factors, and concluded that “it is in Children’s best interests to live

primarily with Mother.” See Trial Court Opinion, 5/4/16, at 25-33. Father’s

arguments would require this Court to reassess and reweigh the evidence in

Father’s favor. However, “with regard to issues of credibility and weight of

the evidence, this Court must defer to the trial judge[,] who presided over

the proceedings and thus viewed the witnesses first hand.” E.D., 33 A.3d at

76; see also C.A.J., 136 A.3d at 506 (stating that “[w]e defer to the trial

[court] regarding credibility and the weight of the evidence.”).      Although

Father is not satisfied with the weight that the trial court afforded to many of

the statutory factors in rendering its custody decision, our review of the

record reveal that the trial court’s findings of fact are thoroughly supported

by the record. See C.A.J., 136 A.3d at 506 (stating that this Court cannot

reweigh the evidence supporting the trial court’s determinations so long as

there is evidence to support the findings). Therefore, we conclude that the

trial court did not abuse its discretion, and we defer to its custody decision.

See id.

      Order affirmed.




                                  -8-
J-A29045-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/19/2016




                          -9-
                                                                                      Circulated 11/30/2016 04:39 PM




 IN THE   COURT    OF COMMON   PLEAS   OF ARMSTRONG   COUNTY,     PENNSYLVANIA


J-L.S-,
                          Plaintiff



R-P.         S-,
              v.


                          Defendant
                                                 No. 2011-1474-CIVIL




                        MEMORANDUM AND ORDER




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                                                                    · Brenda C. George,;:,,;::::::::::
                                                                Prolhonolary and Clerk of Courts
                                                                i-.rmstrong County, Pennsylvania


                                                                                         MY COMM. EXPIRES iST
                                                                                         MON. JAN. 2020
    IN THE COURT         OF COMMON   PLEAS    OF ~.RMSTRONG COUNTY,    PENNSYLVANIA


J          L. S---              Plaintiff

                    v.                                  No. 2011-1474-CIVIL


                                Defendant


                                       MEMORANDUM

PANCHIK, J.

                   Before the Court for disposition is defendant R-

P. S-'s                   ("Father's") October 20,       2014 petition for

modification          of the December 5, 2012 custody order granting

~          L. S-                 ("Mother") p.r.i.ma ry physical      custody of

F                               , born June 231      2003r and G

               r    born June 6, 2002, (collectively         the "Children").

               Trial began July 20, 2015 with Father's testimony.                     The

    Court then suggested that the parties and Children be evaluated

    by a psychologist         and a custody report       (the "report") prepared

    for the Court.         The Court continued       the trial 120 days for that

    purpose.       Custody evaluator         Martin Meyer, Ph.D., then submitted

    a report to      the Court.      The custody trial      resumed and was

    completed March 18,         2016.    The matter is now ripe for decision.

    For the reasons that follow, we will grant Mother primary

    physical custody of the Children, and Father partial physical

    custody, in accordance with the accompanying order.
s         v. s .....
No. 2011-1411-Civil




                                                FACTS


                After reviewing the record, the Court makes the

following findings of fact.
      -~..   s-
           Mother and Father lived together for an unspecified

period of time prior to marriage.                       They married in 2002,

separated in 2011 and were divorced in 2013.

                 Father and Mother live a three-to-five minute drive

 from one other.

                 Father, 43,     live.s    with    his    paramour, W-         S

 and W-'         s two adult     children,        DIIII,    20,   and   AIII   19.   1   They

 have lived together in a house in Dayton, Armstrong County for

 approximately three years.                 The house has seven bedrooms.

 Sveryone has his own room.

                  Father has two children from a previous relationship:

 C-,            23, and~'                 19.     They do not live with him.

                  Father is a high school graduate.                 He received special

 education for reading and learning problems from first through

 ninth grades.             Father noted that the Children also have learning

 problems.             Father ~erved in the U.S. Marine Corps and received

  an honorable discharge.



  1 Mother contended that D-          and    A9    also have their paramours living with
  chem in the house.

                                                   2
s         v.s•••
"o. 2011-1174-Civii




                 Father's mother worked as a secretary and his father

was a butcher.

                 Father works as a foreman at Rosebud Mining Company.

He has worked there for 11 years.           Father works 4 a.m. to 2 p.m.

or 2 p.m. to 11 p.m. Monday through Friday.           On occasion, Father

    also works Saturday.     When he works the morning shift, he gets

    up at 3 a.m. and returns home at 3 p.m.       For the later shift,

    Father leaves the house at noon and gets home at midnight.

    Father can be reached in the mine where he works by landline

    telephone.

                 If Father is granted more time with the Children

    during the week, he will see them for forty-five minutes when he

    works the afternoon shift.     When Father works the daylight

    shift, he will see the girls after they come home from school.

                 At the time he testified, Father had partial custody

    of the Children on Wednesday from 4 p.m. to 8 p.m. and every

    other weekend from 4 p.m. Friday to 8 p.m Sunday.        Father

    testified that previously, Mother was more flexible about giving

    Father more time than the custody order called for.        Father

    would text Mother and ask for more time with the Children and

    Mother would permit it.      Father was getting the Children every

    weekend.      That stopped the day that Father asked Mother for

     fifty/fifty custody.     Mother said no, she did not think that was
                                        3
s            v.   s•••
No. 2011-1414-Civil




a good idea.           Father still wishes to have at least F-                       fifty

percent of the time.

                   Exchanges take place with Father picking up and

dropping off the Children.                 Meyer, at 18.             Father does not

interact with Mother.               Father told Meyer in mid-2015 that if a

problem arose, it           was solved via text messages or by meeting in

    person. Meyers Report, at 18.             Father said there was a "mild

    level of hostility between he and [Mother]" and said this

    included a strong expression of dislike.                        Father admitted that

    he had talked to the Children regarding the custody situation.

                   FIIII   and G-        both attend West Shamokin High School.

    G'IIII   is   in St11 grade    and   EIIII is       in   7th   grade.    Father testified



    either        W-
    that if he is granted custody of the Children during the week,



    bus in the morning.
                       or Paternal Grandmother will put thern on the school



                   Father described Mother as a good parent and said that

    their marital problems began when Mother started school.                           Father

    said he was depressed during their relationship and argued with

    Mother. Meyer Report, at 15.              Father stated that Mother did not

    attempt to change.            The parties were arguing.                 Mother wanted a

    divorce;       Father did     not.    Mother then called 911. and said             Father

    had hit her.         Mother obtained a PFA against him. Id.


                                                    4
s            v,   s•••
Ho. 2011-1474-Civil




                    Father said he had no concerns regarding Mother's

parenting abilities and there are no disagreements                         between them

regarding education, religion, athletic/recreational                         experiences

and special interests.                Father believes that ~would                benefit

from speech services and told Meyer that both Children need

medication for focusing. Meyer Report, at 17.

                    Father said he believed that Mother wo~ld say Father

    is   inadequate      or incompetent to care for the Children and that

    Father uses alcohol excessively. Meyer Reportr at 15.                      Father

    said Mother thinks he is not responsible. Id.

                    Father is a Christian.            He feels that religion is an

    important influence           on the Children1s       lives.

                    According     to Father,     EJIII and   G-       have a Jove/hate

    relationship       with each other "minute by minute.u                 Separating the

    two is in their best interests.                The Children need time apart

    and time together,            Father said.     He wants what the Children

    want.         They should make their own decisions about where to live.

    Father said that         cJIII    is better away _from        GIIII-
                     Paternal Grandmother. lives two or three hundred              yards

    away from Father's house, as do two siblings of Father.                       They

    are available to help with the Children.                  W-       works for

     Paternal       Grandmother at a care home located two or three hundred

     yards    away.      £11111   and Giii both play softball and F .... is in
                                                  5
s         v. s•••
No. ~011-1414-Civil




the marching band.          The Children also are   involved in the 4-H

Club.       Father can get the Children to their activities by

himself with the help of his family and Wendy.

                The girls need adult supervision when they are at

    home.   Wendy watches them when Father is at work.       The Children

    get along "greatn with Wendy, according to Father.

                The Children are in good physical health.      However,

    they have serious emotional problems.

                Father testified that Giii     will not come over to his

    house because of an incident involving a babysitter.          The

    Pennsylvania      State Police and Armstrong County's Children, Youth

    and Family Services were called in to find out what had

    happened.

                 After the incident,   G91 began    to have individual

    therapy.     Although   joint counseling was recommended, Father

    resisted participating       in counseling with G-       First, he did

    not believe that the incident described by Giii         actually

    occurred.     Secondly, he does not believe in counseling.          "I

    believe counseling       is not the answer to anything,n Father

    testified.     ~r   think counseling is useless sometimes.n    He said

    people just "have to work things out."

                 Father has had serious mental health problems himself.

     He began to have depression in 2009 when he felt neglected by
                                          6
s          v•   s•••
!le. 2011-H71l-Civil




~other. Meyer Report, at 15.           Father also suffered from anxiety

in 2009, feeling jittery and having tachycardia.            Father was

involuntarily committed to a psychiatric ward in 2010 when be

threatened to commit suicide.           As a result, Father went to

    individual therapy and took psych medication.        Father stopped

    taking medication after a short time.        Father said that he did

    had therapy for a year, although Mother said he only had therapy

    for a short time.       Father testified that be stopped because his

    therapist and doctor said he no longer needed counseling or

    medication.        However, Father did not give this reason for

    stopping to Meyer.

                   With respect to his alcohol intake, Father testified

    that he drinks a case of beer per week, maybe a case every two

    weeks.      Father then testified that he only drinks two cases of

    beer per month.        Father denied drinking 15 beers a day.     He said

    he outgrew that "a long time ago."         Father noted that he had no

    arrests and no work missed because of drinking.         At trial,

    Father said he had passed a drug and alcohol test at work.            The

    test was taken July 14,       2015. See Exhibit 2.   Father also had a

    drug and alcohol evaluation done November 13, 2015 because of

    Meyer's recommendation       that Father do so.   This evaluation, made

     at The Open Door, stated that "[b)ased on the information you

    provided during your assessment, it        is the r ecomroendatLon of the
                                           7
s         'I.   s---
Ho. 2011-1474-Civil




treatment team at this time that you do not meet criteria for

outpatient treatment." Ex. 1.               The report further stated, "It is

important for the Court and legal counselor or any other parties

to note that the findings of The Open Door are highly dependent

on the extent and veracity of the reports made by the

individual.       " Id.       {emphasis added. )

                 Father does not believe that his drinking led to his

    divorce from Mother.

                 According to Father, his paramour drinks only

    occasionally.         Father also s e i.d that "cmidoes   not object to

    drinking."        Gtlll    has contradicted that assertion.

                 Mother takes the Children to the doctor and dentist.

    According to Father, Mother does not tell Father what happens at

    those visits.

                 Father does not receive a schedule of the Children's

    softball games.           He said he only finds out there is a game when

    he gets a text from Mother the day of the game.            Father would

    like Mother to keep him more informed.

                 Father believes that the camps the Children go to are

    good for them.         They help the Children to make new friends.

                  Father asserted that Mother screens Father's calls to

    -c:he Children.       Father said he used to text the girls every day

    or every other day.            However, Mother got the girls new cell
                                               8
S
Ho.
              v,   5----
       2Gll-1474~Civil




phones for Christmas of 2015.                      As a result, Father said, Mother

can now read everyone's texts.                       Because the texts are no longer

private, Father no longer texts the Children.

                         In the last year, G-                has not come to Father's house

    as often as            FIIIII
    it face to face and via text.

    or talk to him.
                                     has.



                                    The
                                                    However,

                                          last time G-
                                                                   G-
                                             Father has tried to talk to         GIIII abouf ·
                                                                         will not text him

                                                                stayed overnight wa s Easter

    2015, when she stayed from Saturday to Sunday.                          Things   we nt;

    quite well that weekend, according to Father.

                         If the Court grants Father equal physical custody of

    the Children, he will introduce the Children to the expanded

    time with him slowly.                   However, Father would not force          GIIII ~o
    come to his house right away, since she is the one having

    problems with him.                    Father said be would have       FIIII come    over

    more right away, since that is what she wants.

                         Mother, 43, lives in a house in Dayton, Armstrong



      18.     Jllllf      and Miii are children from Mother's previous

    marriage.             The house was the partys' marital residence.                   'I'he

      Children       have not primarily resided anywhere else.

                         Mother has been a certified nurse practitioner                  since

      20J2.        She works in the emergency room of Armstrong County·


                                                         9
s
Uo.          v,  s---
      2Dll-1474-C1vil




Memorial Hospital.                 Mother works three eight-hour shifts                       one

week and four eight-hour shifts the next.

                   Mother and the Children are Presbyterian.                           Mother told

Meyer that the religion is an important influence in the

Children's              lives.



    J. 'l'-and
                   Maternal Grandmother and Maternal Grandfather,

                             G-,

    Mother is close to her parents.
                                          are    dairy         farmers on the
                                                                                              M1IIII
                                                                                   family farm.



                   Mother reported to Meyer that                        in 2010,   Father held         a

    pistol to his head and she was concerned for him and as well as

    for herself.           Father signed himself                 into the psychiatric         ward

    and the parties separated                   for four months.             Father   received

    medication          and therapy, but became agitated when                      he stop taking

    his medication.              Mother   told Meyer            that    Father was physically

    intimidating          to her and emotionally abusive                     during   their

    relationship.           In the summer of 2011, Father shoved Mother                             and

    kicked in a door.              In 2011, Mother obtained a one-year

    Protection          from Abuse order against                 Father because of what             she

    termed his          hostility,     aggression,             suicidal     threats   and physical

    intimidation.

                    According        to Mother,          Father     is an alcoholic.          He has a

    long    history of daily alcohol                abuse.             Father has tried to quit

    but faiJ.ed many times.                He even attended AA in the past.                     Mother
                                                          10
s         'J,   s---
no. ~011-1q11-civil




told Meyer that Father sometimes left her for months at a time

on alcoholic binges.             Mother has known Father to consume 12

beers in one or two hours.             When Father drinks, he becomes

hostile         and angry.

                 Mother told Meyer that Father associates with people

    with the same alcoholic behavior and has been known to become

    iricreasingly hostile and aggressive with the Children when

    drinking, especially when drunk or hungover.            Father has also

    left the Children in the care of questionable individuals.

                  According to Meyer, Mother has found Father and his

    girlfriend texting disparaging comments about Mother to F-

    and discussing custody matters with her.

                  Mother stated that she did not typically discuss or

    disclose custody information with the Children unless she needed

    to take them to something like a conciliation or hearing.                It is

    her belief that both Father and his girlfriend regularly discuss

    custody matters with F-.

                  Mother said both girls have "experienced episodes of

    not wanting to go to their dad's."            Fiii   has maintained the

    schedule but      GIIII    has refused to go.   The visitations have

    interfered with the relationship between~                  and he.r sister.

    EIIII eventually         reduced her visits, with Father admitting later

    that   it   wa s because    Fiii   wanted to spend   more time w i.th   Mother.
                                             11
s          v.    s---
uo , 2011-1<!74-Clvil




Meyer Report, at 11.                  Flllf uses visitation as a weapon to get

her way and is not mature                   enough to decide where she should

stay, Mother said.

                  Mother also told Meyer that she has "concerns that

    [Father] lives in            a cabin with his         girlfriend and two of her

    adult children, who also have partners                     [.)   [Mother related,]

    '[I]t is my understanding               that they regularly engage in keg

    parties and smoke pot.'n Id.                  Mother sa~d that the adult

    children and their partners "regularly care for the girls." Id.

    a1:   13.

                      Father     subpoenaed      FJIII for     the   first scheduled trial,

    but    not   G-             He also   took    FIIII to     his attorney's office.

    Father's different             treatment of the Children resulted in

    increased         discord     between   Fml and        ~

                      G~and          Flllll!f have both been diagnosed with

    Attention Deficit Hyperactivity Disorder.                         Father does not

    believe this is a valid diagnosis.                     According to Mother, he has

    refused to regularly              give them their medication.

                      The Children have learning difficulties and they both

    engage in lying behavior.

                      G-        has been diagnosed with anxiety.             She is

    avoidant      and has difficulty             making friends.        She made a

    homicidal         threat     toward her teacher during the fif~h             grade and
                                                     12
S
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       :?.Oll-1q7,1-C!1Til




was expelled for three days.                       Mother told Meyer about the

following problems                  involving G-:

            In December of 2011, the father had gone to a
            Christmas party and             wanted to leave, at which
            time her brother and a cousin threw her down steps.
            E'ather had passed out drunk and "became belligerent"
            when asked to get up.        In 2012, G &     [ s anxiety
            increased and she became physically aggressive with
            her mother.     Counseling was recommended but father
            refused for her to receive such. At one point in
            2012, when suicidal and homicidal, [G              f threatened
            to cut her mother's hair off and stab her in her
            sleep. She said if she was forced to go to her
            father's, she would kill him, and G-              eventually
            stopped seeing him.        * * * Other i~nts between
            2012-2013 involve their father leaving the children
            with female babysitters who then had a party with
            ~eeoro, hid~ t··hechildren~ s plhofnes. anhd jumped on ch
             z:   am.         I was again e t w i.t; a teenager w o
                                                                           at   a
             filmed G        and threatened to publish pictures of
             her.   ~             threatened to stab them. In the fall
             of 20121 ~was             in possession 0£ G          in a
             vehicle while G        g was agitated, and she threatened
             to jump from the car because she did not want to go to
             her father's    home.

    Meyer       Report,        at 5.




    and homicidal thoughts and aggressive behavior when G ...                          was

    with him.                He called   Gtl•• s   behavior "typical   temper t.a n t r urns .   11




    Mother regularly told Father about G... 's problems,                       but in 2012

    Father         "made it clear it was not his problem and be wanted




                                                      13
s             , s--•
              t ,
No. 2011-1174-CLvil




nothing to do with it," Mother testified.2                           Mother thought~

needed counseling, but Father was reluctant to agree.                              He denied

that G-had                      a problem or needed treatment. Father finalJ.y

consented             to   G-       seeing a therapist      at the    end of November

2012.           Father took eight weeks to sign the necessary paperwork

and the signing had to be accomplished through the parties'

    attorneys.

                       It also took nearly two months to get Father's consen~

    for   FIIIII to        get counseling, Mother said.              Father   has aJ.so

    opposed counseling for himself.                  He does no~ feel that

    counseling is useful.                He has called it "hogwash.11

                                                         sessions with her for a while

    before getting her own therapist.                     Father would not consent

    until he was assured that Mother was not a part of the

    coun s e Li n q .

    counseling together.
                           It was recommended that Fathe:r and

                                        However, only after Meyer issued his
                                                                              G-   do some




    a babysitter
                       G-        reported an incident at Father's house involving

                           and the babysitter's boyfriend.               ~       said they

    videotaped her dancing with a bear.                     They then forced her to


    2Father
                    denied ever saying this.
s          v.    s---
uo , 2011-H7q-C.lVl.l




dance in a sexual manner with a baseball bat.                                              Father sided with

the babysitter.                    C11111exhibited                increasing anxiety and made

threats to              hurt     herself and               others.

                    c9III was             prescribed Selexa. for anxiety as well as

medication              for her       ADHD.           At    G9III' s     request,        she    was    weaned off

    the medication              in 2015 because she was doing so well.

    wanted to stop her counseling, but Mother and                                        Gllll's       therapist

    recommended against it.

                    G..           has made progress in counseling.                                Mother

    reported that at the time                         of trial, G-                  s anxiety was

    "minimal" and she had not made any threats to hurt herself or

    a n yorre   else.

                    According

    declined significantly
                                          to Mother,

                                                 in 2014.
                                                               G-'  c;9II
                                                                          s visi t s to Fa t h e r ' s house

                                                                              would get anxious on some

    visits and "we'd let her come home early.                                        Sometimes         I:1!11111   would

    stay    with Father."                 This occurred 15 to 20 times.                            ~          s

    visits to Father were practically nonexistent in 2015.                                                   G..

    went over there once.

                        In early 2015, Melissa McKee, the girls' therapist,

    recommended that ~begin                                  to see Father "gradually."

    However,       Mother          has     not    t   a ke n F-          to   Father's         hou.s e more

    because       "the

    setup," Mother said.
                               behavior

                                             G-
                                             of       F-       is      a problem

                                                            s "relat.ionship with F-
                                                                  15
                                                                                      in    the    current

                                                                                                           gets
s
Uo.
            v, s---
      2011-1,74-Civil




worse the mo z e they        are s epa ret ed."      Wben -          initially comes

back from Father's house, "all her bad behaviors and emotions

are at their peak," according to Mother.                  "Then she calms down

and eventually is a nicer person."                  McKee and Meyer are

recommending a gradual .increase in time with Father "whenever

    the girls can consistently improve in their individual behavior

    and   in their relationship," Mother said.

                  G-has       not spent the        night at Father's house in

    2016.     She will not go.       Gmll says       she does not like it     out

    there.     "I speculate that she doesn't feel safe," Mother said.

    "She shuts down when I try to discuss it."                G ..     is unable to

    verbalize her feelings about the matter.

                   G-     last visited Father's house on March 15, 2016

    for four hours.        Her behavior deteriorated.           Her anxiety

    spiraled and she had a panic attack.               The Children were fighting

    and Mother had to separate them for the night.

                   'l'he relationship between Giii        and   E9III is    still a

    serious problem.        "It's beyond sibling rivalry,u Mother said.

    "It's an adversarial       relationship."         Mother said ''[t]here isn't

    a day they're not screaming and yelling at each other."                    They



    G-" F-
    have come to blows.



    has touched.
                               "F-      has   developed a real

                          refuses to touch anything or anyone that G-
                                                                       dislike of




                                              16
s         v,    s•--
uo. ~011-lq74-Civil




                 The hostility between the sisters is most noticeable

when F-returns                 home from Father's house.       G-s        anxiety

escalates and the two girls fight.

                 At the time of trial, each girl was having individual

    therapy once a month.          Therapist Melissa McKee sees G-             and

    F-together             for the last half hour of the session.

                 In the .summer of 2015, Mother and F2ther did a trial

    run of ~              going back and forth week on and week off.           It was

    an "utter failure,u Mother said. "It negatively affected the

    feuding between the two girls."           Mother noted that once the

    vJeekabouts stopped in the fall, G-and                 f11111s relationship

    "changed    and got better."        However,    the r e La t Lon sh i p is "still

    an issue.       It'    s not consistently good."      F9111   is ta king

    Concerta for ADHD.           She actually requested it       for herself for

    school, Mother said.           The medication    has helped.

                   Mother     said she finds it "very concerning to split

    [up] the girls."           Her concern is that separating the Children

    more "will further exacerbate the [acrimonious) relationship

    between the girls."           Mother said the problems between G~               and

    F..    pL1ts    a strain on her entire familyr including her two

    older stepchildren.

                   Mother said it is in the best interests of the

    ·children    that there be no change in the amount of time that
                                              17
s           v.    s .....
l1o. :!011-1474-Civil




Father has each child.                     ~There is even stress in the present

schedule," Mother said.                     GIIII    should not be forced to see

Father at all in the present                       situation.

                      Meyer interviewed W ..             S-,            Father's paramour,

and elicited the following information.                           S           ,   age   41,

graduated from high school with average grades.                             She attended

business school and became certified as a medical assistant in

    1994.        Semanovich was previously married and has three children:

    an 18-year-old daughter and two sons, ages 20 and 21.                           She and

    F~ther have lived together more than two and a half years.

    Semanovich has been employed at Back to Basics since 2013.                                She

    denied any medical problems, physical limitations or mental or

    emo~ional difficulties.                     She said she has no history of drug or

    alcohol abuse and has no criminal history.

                        Meyer observed the Children separately and together at

    Mother's house.

    that she enjoys cooking.

    culinary activities. Meyer, at 21.
                                                 F-
                                    When the girls were together, G•••

                                                        aJ.so reported interest in
                                                                                  told Meyer



                                                             Activities that the Children

    do with Mother include cooking, going out to eat and playing

    board games. Id.                Fiii   told Meyer that she does not like it when

    someone touches her possessions,                     such as when G..         touches

    them.    Id.            F9llsaid,      "I    freak out ... cry ... jump up and down." Id.


                                                        ]8
s         v,    s---
No. 2011-1414-Civil




The Children said they had been grounded for fighting and had

also lost phone and iPad privileges.

                  When Meyer saw G-alone,                          G-discussed                     a problem

she had had at Father's house in which                                 1'111,     S                 ,s

daughter, yelled            at her and would not let G-=al-:-.e her

    Christmas     presents back to Mother's house.                             Id. at 22.           G ..

    said it is unfair tbat they treat 7'111better and treat F ..

    better     than her. Id.         She told Meyer she does not like

    ~'s                 children.      G-said                   that     Piii",                         ,    Father

    a.nd .sometimes      D-babysi            t    her.         Questioned          regarding a f:i.ght

    that     allegedly occurred at Father's house,                              GJIIIII   stated that

    -        might have "accidentally"                   pushed her and that                 "he was

    drinking alcohol.u         Id.       Asked       about her interactions                       with

    babysitters at Father's house, ~                               said, "I prefer                not to talk

    about it."         G9II   said she may want to see Father a couple of

    times a year, bu~ not on an extended vacation. Id.

                   Ln t e r v i.e we d independently,              F..          t:.old    Meyer     she       has   an

    adequate      relationship        with        S-'s                   children.           Flllil          said

    she is usually         at Father's           house in the afternoon.                          She       hangs

    out there with cousins or an uncle. Id.                                Occasionally,

    S-                 watches her.       EW111 is             not aware why
                                                                           G-                       does not

    w i s h to visit      Father.      Asked about               her     relationship             ,·Ji th G ... ,

     FIIII     said,    "G-pushes                my buttons."            Id.       ~        said she would
                                                          19
