exerted primary control over a child and so kept that control of that child for several years away from the other parent should be rewarded with an award of custody this is a parent we're talking about a parent the mother in this case who has prior to a petition for custody being filed by my client the petitioner robbie nagel had no problem with my client taking care of the child spending time with the child keep the child overnight bathing the child taking the child to school to day care medical appointments and that's working but the minute he finally starts to make noise that he's going to file a petition for custody she  she threatens and can follow suit with those threats to cancel medical appointments for the child that he has me she executes documents for school without any reference not only to the father's address but the there even  a father at all involved in the picture despite the fact that she knows and she knows very well where he lives because they've exchanged the parenting information exchange the child and he had filed a filed for and been granted an emergency order of protection against her for her violence against him in front of the child just a few months or a few but when she finds the registration for the child's school it or being a school district one sixteen and this is pointing specifically to a thirty in the appendix respondents exhibit six she makes no reference that there is even a father involved this is on april eighth two thousand and fourteen months after the petition for custody had several months after the petition for custody had been filed and two months after the petition for an emergency order of protection had been filed and granted she claims she just didn't have her phone with her and that's why she didn't know his phone number why didn't she even put in his name as any reference that there were even e s a father in this involved in the picture or acknowledged no no reason in the respondents appellate brief she claims that she doesn't even didn't know  one of many examples of efforts successful efforts by the respondent mother to keep the father away from the child except when it was in the mother's interest to do so when the mother wanted to go to yoga instead of taking the child to a medical appointment or to a therapy appointment and she remembered to tell the father the father could take the child to the appointments otherwise it was just one time week the father could take the child to the to the medical point this was after the custody after the agreed order which didn't designate custody but it doesn't needed counting time had been entered the mother were admitted and it's been part of the record that after robbie nagel filed for custody of the minor child harper she she refused to allow him any additional time other than what was pacifically allowed from this parenting schedule sort of brings into question how to parent schedule even get entry well the parent the parties had been sharing parenting time with the child generally for the child's life of four years or so when robbie became concerned about accounting issues decided to file for custody this was then that angered shape so much so that she committed violence against him in front of the child this is documented in the emergency petition for emergency order of protection which is part of the supplemental record that the court allowed in and on feb twelfth two thousand and fourteen robert nagle filed a verified petition for order of protection that emergency order was granted by the trial court and what's important to no because the trial court unfairly criticized my client for filing a petition port of protection despite the fact that it was granted claiming in suggesting in the line of gordon that this was an abuse of the courts an abuse of the court system because what happens in many cases is i'm sure the courts aware is that you have in a custody case one parent will file a petition for an order of protection claiming violence to try to get a custody advantage that actually wasn't the case in this situation there specifically that it is a shared responsibility at the question that the primary caretaker of the minor children were asked to petition respond he says other shared responsibility when they ask for what the are there any other cases going on he states there's a custody petition that's already been filed and is already on file and when it asks for custer for visitation or control of the child he doesn't say just give the child so we don't let the mom him know he said he repeats a schedule when's the respondent the mother should have a child wednesday through thursday from four pm to ten pm every other weekend from friday to monday friday three pm to monday ten ten am undoubtedly similar to what the parties were already exercising in that country what you're talking about to judge block and i know that in i believe it's the transcript of the day that the emergency order is granted judge i mean specifically says i'm not going to enter in the order with respect to the child but it appeared to me that everyone was under the assumption that an order had been entered giving your client possession child and that representation was made to just block so i think you're right as far as all of the those who heard the custody proceeding said in granting that order of protection did not what the part the court did and there's a lot of scratched it's very difficult to read but in the transcript judgments civically says i'm not right going to enter an order with respect to the child right you're right and i do recall that but in this order where she says hear she she when she marks out various parts of the schedule she grants the respondent mother friday three pm to monday ten am there's not even that reference that my client had suggested mother should also have this additional time on i think wednesday through thursday and there's not these talks about visitation which implies that custody to the other parent but you are right in that it though the representation was made my the order because i had come to see my child in three weeks so the only way he could actually see his child and spend time with his daughter was if you agreed to dismiss to dismiss his petition for protection he couldn't even see her on the time and i think it was this this misunderstanding in the order since the order said mom gets to have the child from friday to monday that there's an it was implied or he understood it and perhaps from his prior counsel that it was that he was to have the custody when i think there was no you can't have a custody order and in an order of protection you can have it because the case was very clear just because you can have physical possession but you can't have custody but so that's that's perhaps where the confusion is and was even on  behalf of both of the parties the you know the there's some recent case law in remarriage of rogers that i cited in the reply brief that talks about the it was a little different case although it was a custody parent case and it was in a motion to reconsider but the issue and concern was about the in that case the mother had put the child into into harm's way luckily the child had not been injured in many or circumstances in this case shane morris has put the child in harm's way there's a time when the child december two thousand and twelve mom decided she wanted to go to hawaii with guy she had met once at some yoga retreat in north carolina and decided to take the child two and a half year old disabled child can't walk on her own at two and a half left her with a guy tommy campbell who she referred to as tommy someone else threw up in the proceedings she didn't remember really what his name was but left and there was she went scuba diving and other really cool things  one would do in white this is someone who the child had never met who mom had met once but this sixty year old guy had had invited this twenty year old woman with to come out to hawaii and she wanted to take that opportunity another time she heard a lame order invite her to go to a n colony and so mom takes child to a nudist colony with the landlord and apparently couple of the renters also went there we mother later clarified that in the areas where they were eating they did have but it but in the other issue referred in responding answered it was a nudist colony another time mom talks it takes a child to arizona to spend time with some other guy that she's in each of these circumstances luckily nothing has happened but mom or mom does not suggest that there's any remorse or concern about where she's leaving this child when she goes off on these wonderful vacations that she's invited to by six year old men to just go in vacation with her she just leaves the child with other babysitters which is also a cause of concern what she's doing and when she leaves the child at home in a home in a rooming house where she has lived and live all of the child's life in where the child has her own separate bedroom she has mom has her separate bedroom and then there's a shared living space with two other people two other renters who are these other renters the switch from semester to semester what's their history do they have a criminal history or criminal background she doesn't know she didn't even know their last names but the child is staying and until the middle of these court proceedings was was sleeping in and staying in an said well there is a stability there i suppose there's a support stability you have a stability in some other places but the alternative is to this risk of leaving your child in a boarding house or rooming house where there is no locks on the door until finally we complain enough in the courthouse that she she puts that lock on the door we have a single family residence backyard with a child can do gardening and does do gardening plays with the family dog and where the house is able to be accommodated for the child various disabilities so that she can learn to step up and then they make accommodations on the steps and on the handles for the door so that the child is can learn because the severe disability that she has to learn is independent to learn how to turn on and turn family law case what the court does and i don't know how familiar the fourth district is with this judge walkmen has set up a procedure a protocol when there is a custody dispute to appoint another family law attorney he calls them a limited guardian and i'm very distinct from a interviews in this case each of the parties sometimes interview the child but in this case that wasn't done there is it and mr leahy was appointed prior to to me becoming counsel for mr nagle but it's a very limited as the name would suggest procedure that report is done prior to any custody procedure any actually decision to go to custody took us to trial takes place so in his reporting mr states that he interviewed the parties because it was just the courts to ruling or the transcript the courtroom none of those documents so it's very limited and it is there is no special training that a family law attorney has i've been a has to file that report and so that's the report that you see referenced in the transcripts and in the record is that limited guardian ad litum report and what i'm sorry both of what i was going to ask you is  specifically in this case is there something in particular that you take issue with in terms of mr malaysians testimony either evidence that you know he was unaware of  you indicated and then said through testimony but you know that he was unaware of certain evidence that he should have been aware of prior to making recommendations or are you saying that his testimony should not have been a report that suggests that he heard about and knew about shame or is taking harper and leaving her with this guy tommy can't his six year old man tommy campbell in the horny and his friends we don't know anything about while she went off and scuba dove and kayaked and the other thing to do i guess when you go to point no what no testimony about that nothing that suggests he heard or received any information about how she had gone to the nudist colony and taken her for this i think at the time maybe one and a half year old child maybe maybe she was three at the time to the nudist colony with her landlord no testimony about how she how the door or how shane had in the rooming house left the child in her own bedroom the door on without a lock on the door and no testimony about the various documents that show would be filled out with the school district that leave any reference to robbie nagel being a father and let alone his contact in dangerous situations the nudist colony perhaps obviously she didn't see that as a dangerous situation she said she might still know she'd take the child to the nudist colony again taking leaving the child in hawaii and with another man and  in arizona and then you have the issues with leaving the child just at home or without any concern about a lot of having a lock on the door and again this is with a disabled child someone who doesn't have the ability to walk or to run away when there is danger and so that brings heightened concern where you have on the opposite side a father who has been fully involved as involved as the mother will allow him to be when he's made appointments she's cancelled those appointments and then forgotten to take the child to their physical necessary for the kindergarten appointment forgotten to take the child to the dentist appointment so you have you know have to wait another three months before the child can get into the dentist because mom just forgot about it and then other times where mom just didn't take the child to her various appointments physical therapy because her hair was yet whets and she had just woken up or not she texted that and that's part of the appendix or where her the what else had happened she was overslept felt support what you've been offered not a list of sins completely wrong for a child has to be terminations not only in the trial court but especially for the review of that kind of determination is asking is for a new court to take a fresh look at the evidence make its own findings and determine its own weight for the different evidence pieces and factors to be given and render a decision that he thinks was best for the situation his argument is not that the trial court didn't accept evidence properly or accepted evidence that shouldn't have been accepted or considered factors that were unrelated or irrelevant his position is that the trial or weight of the factors and where he runs into a brick wall in th of discretion a decision beyond reason could be overturned by this court and that's not what you have here mr nagle was entitle to a trial court that received the evidence properly they considered that evidence that considered the when she talks about what she's doing and what she's not doing talks about excluding the child what she's referring to is as a protective the child was executed as protected party she and i i'll get to that more later but i want judge wapner identify the correct statutory factors went through them in detail applied factual findings to those factors and rendered this action in the statute sets out the fact of section six zero two does not require that any particular factor be given any particular date those not required that certain factors be given more weight than offers a trial court can assign more weight to a factor than another factor and it's free to do so within its discretion that's not the analysis that mr nagle wants to proceed with mr nader wants to proceed with a bits and pieces approach to pick out what he thinks is most favorable to him collected in a little pile and point to it ignoring everything else that's not what judge blocking was supposed to do and in fact if he had done that that would have been some suppression squirtle just bachmann weighed the statutory factors number one this morris has been harper's primary  caregiver her entire life that fits in with section six o two a three an a for the interaction in a relationship of the child with this parent or parents the child adjustment to home school or community from the time of harpers her she has resided primarily with lived together and harper's never been with mr no go for longer than one week and when you say that ms maurice's then harper's primary caregiver in this situation that means something to care in the context of our it's something much more intense than what you would expect for an average child she suffers from this it will disability that is severe ms morris as handled and manage that to support you from day one two fifteen appointments in st louis for treatment with a shoe in bar he went to two thirty seven visits to philadelphia for one hundred eight treatment of one wants he went to five he went to it's a litany of questions like this do you know that she was on vacation with her for this missed their appointment answer yes or did you know she was out of town their answer i was not aware that or this is a good one you didn't know that she was in california for a doctor's appointment answer now that you say it yes or are you aware that the appointments were cancelled by the therapist answer so the whole thing fell apart on cross examination it didn't show in a collectible harper attended or not it was a complete non issue that's been blown up in this hyperbole of grief right condition in effect chose all the doctors set up the appointments with dr van bos a specialist suggested can easy oh tape to facilitate movement harper shoulder and toads suggested electrical stimulation suggested using philadelphia doctor a drug to increase bone density and possibly reduce fractures i'm forgetting the dynamic a fellow who knows what else she morris exacted not just as a parent  meaningful expression of her actions harper's interaction and in a relationship with significant others was better with mr hagan's family this is a demonstration of the even handed analysis that you see in this case from j this isn't i fixated on one party so i'm going to say everything positive about his partying or even if it's this was a joke who took careful notice of the facts making it's find its carefully applied the statutory factor to those facts you found the factor favored mr negron that was supported in the record mr nagel's family and significant other natalie were shown to be positive influences of her life ms morse's relationship with her family was not as close although there were others in her life that were positive influences for our effort in marietta people she hadn't known them our whole life mr henderson may have watched harper for thirty minutes at a time maybe three times a week as was absolutely meaningless to the trial court's determination there was no demonstration or evidence that any of this was a risk t harper nine at all stay with ms moore says mother not because her mother was a problem or risk but because she was so far away so away from so far away from one of her peers parents as if harper needs a parent watching over twenty motion is the filed or maybe should be set for here and we want to do something about it well that's all it wants and documents attached involving some unrelated federal case that involves a person that's ms morris and it wasn't links to harper or ms morris is caring for her or anything else was completely improper for judge walker just moment it suddenly changes ruling and gone on for pages about this filing that just may well we think that it didn't mean anything to the states room specifically designed to accommodate her furniture play area activity stations even a special electronic toy all the toys are dear to her her disability it's her home and it's been or homes that she was born except for the six was a time when mr nagle met miss morse's roommates i was up until the semester before temporary custody story never expressed any concerns about mr huber his wife or daughter or living in the house until the custody proceeding started that was a contested issue talking about rape we're talking about how does something progress from you're living with roommates and i'm living with roommates you're living with roommates and i mean interact with them you're living with roommates  concern to your living with roommates and recklessly putting my child at risk for rape and abuse this is hyperbole that's intended to argue that this factor should be elevated above all else the statute doesn't require that the party's mental and physical health six o two a five are equal in both positives and negatives and the party had significant mental or physical health issues the negative had to do with animosity toward each other plenty of that mr nader's are of arguments about depression  counseling years ago amounted to absolutely nothing and no diagnosis pure speculation and if she was made about harper's broken arms it was clearly established in evidence that that is he common thing  emergency order protection order it is tested but ms morse testified that that never happened and actually what happened is he grabbed her arms while she was standing outside the car with harper inside the car and pushed her away from the car ms morris had a proven record of facilitating a relationship which she was primary caregiver and his adversarial position was inconsistent with fostering a close relationship until the end of two thousand and thirteen and so for the first four plus years of harper's life it's not since calling the police to reporting trespass and refusing to let his morris take her to the hospital treated broken after that it was sticking to the schedule with little flexibility not therapy limited to once a week she never interfered with his ability to attend their viewpoint it was attending without her that's what happened ms morris reacted poorly to what she perceived as an attempt to substitute mr nagle for her not to play a role or sly the substitute for emergency opie was most but she's going to facilitate full participation in a relationship with that parent aloni that doesn't make any sense the fact is both parties of joining maturity here in dealing with each other both  records there the evidence isn't clear that she's responsible for the arm fractures what the evidence shows is that i think of the five times in the child's five years where the arm where her arm was broken it was i think except for one time when it occurred at school it was always when the child was in his mother's care and always at a time when the child was not wearing elbow pads which father had provided repeatedly to mother  morris relative to her care of the child in terms of we are fractions yes he's critical on the he is critical of that and concerned about that especially after the repeated fractures in the refusal to put arm pants on council is correct that there is no doctor directive saying the child should always have our hands on her elbow pads which is what robbie knievel had provided repeatedly  had said mother had said i think in various times she had lost him so he would provide those again and then she continued to not put those on the child so there was sometimes the answer of she'd lost them other times just the answer there is no evidence that they would have been avoided it's i think notable that during this entire time during the proceedings and prior that the child did not break her arm home was never broken in father's care and father had the child wearing elbow pads but if you're looking for something that says dr said mom if only the child would have been wearing the pants that the arms would have been broken there isn't any of that evidence i'm not trying to claim that they're it does that way i think where you know it's all moms fault the child falls the child as not only all children all the children especially with these physical disabilities what dad has tried to do is to soften the blow literally when there is a fault by having these elbow pads and using this preventive care not required by doctors but certainly not discouraged mom doesn't agree briefly just in response suggested that there was an attempt by force measure in this verified petition for protection i think the documentation is very clear then doesn't say don't let mom have care of the child don't let mom have the child at all they have a saying hey we've been sh parenting that shared parenting should stick and that's what he asks for and verified petition border protection to sort of force measure or any sort of suggestion like that he just wants shay mom to not to not do these transcript of august eighth two thousand and fourteen page one hundred one and refer to the partner natalie who harper has a very close relationship as a prophetic woman was not part of the petition for her protection but simply a demonstration of how she reacts to and treats the father in front of the child the fact that mom would complain to and refuse and ask the school to restrict the head from having information to leaving not only gets name out but saying  communications hey i'm the guardian of the child well she's never been appointed guardian but she just took it upon herself she's the one the controls no one else gets to say anything and certainly not dad who she won't even let the school know in any documentation is  dead she's in continue to tell other people including the child's caregivers at the school that ravi was an abuser and that was in text messages that were made in part of the pendants in the transcript of nov twelfth two