### J-S42044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O. P. 65.37

M.M., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. K.M., Appellant No. 442 WDA 2014

Appeal from the Order entered February 14, 2014, in the Court of Common Pleas of Armstrong County, Civil Division, at No(s): 2012-0483-Civil BEFORE: PANELLA, JENKINS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2014 K.M. (“Mother”) appeals from the Order entered on F ebruary 14, 2014, awarding shared legal custody of L.M. (“Child”), a ma le born in May of 2005 to Mother and M.M. (“Father”), and awarding primary physical custody to Father and partial physical custody to Mother, in accorda nce with a schedule. We affirm. The parties were formerly married, separated in 2009 , and divorced in

### J-S42044-14

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2011. 1 

### Pursuant to a consent custody Order entered on October 25, 2012, the parties shared legal custody of Child. Mother had primary physical custody, and Father had partial physical custody, in accor dance with a schedule. On May 29, 2013, Father filed a Petition to modify the custody Order. On January 24, 2014, the trial court held a custody tr ial. At trial, Father testified on his own behalf, and presented the testimon y of his current wife, B.M. (“Stepmother”), as well as that of his mother, M. J.M. (“Paternal Grandmother”). Mother testified on her own behalf, and presented the testimony of her mother, J.A.P. (“Maternal Grandmoth er”). Child was interviewed in chambers. The trial court also admitted the expert report of the court-appointed psychologist, Donna J. Zaffy, Ph. D. (“Dr. Zaffy”), regarding her psychological evaluations of Child, Moth er, Father, Stepmother and Maternal Grandparents. On February 14, 2014, the trial court entered its custo dy Order, awarding shared legal custody of Child to Mother and Father, awarding primary physical custody to Father, and awarding part ial physical custody to

1 

### Following the dissolution of the parties’ marriage, Mother began dating B.S., and in 2011, B.S. moved in with Mother and Ch ild. See Trial Court Opinion, 2/14/14, at 10. B.S.’s children also resided with them fifty percent of the time. Id . at 11. In 2012, Mother and B.S. had a son, B. (“H alfBrother”). Id . The trial court determined that this living arrang ement was “toxic and unsafe,” as B.S. abuses alcohol and has violent anger outbursts. See Trial Court Opinion, 3/25/14, at 2. The trial cour t noted that B.S. tried to attack Child twice in Mother’s presence. See Trial Court Opinion, 2/14/14, at 7. In 2013, Mother, Child and Half-Bro ther moved into Maternal Grandparents’ home. See id

.

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Mother, in accordance with a schedule. See Trial Court Order, 2/14/14, at 1-2. This Order changed primary physical custody of Chi ld from Mother to Father. On that same date, the trial court entered an Opinion setting forth the factual and procedural history of the case, as well as the court’s bases for its custody Order. See Trial Court Opinion, 2/14/14, at 1-25. Mother timely filed a Notice of Appeal, along with a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A. P. 1925(a)(2)(i) and (b). On appeal, Mother raises the following issues for our re view: I. Whether the trial court abused its discretion and com mitted an error of law in giving controlling weight to [Child’ s] stated preference to reside with Father[?] II. Whether the trial court abused its discretion and co mmitted an error of law in failing to give adequate considera tion to [Dr. Zaffy’s] comprehensive, expert report and recommendatio ns[?] III. Whether the trial court abused its discretion and co mmitted an error of law by failing to consider the full impac k [ sic ] of awarding primary custody of [C]hild to Father[,] whe n[,] by so doing[, C]hild will be relocated away from [M]other [and HalfB]rother[,] with whom he has a strong bond, the histor y of Father’s anger [and] alcohol issues, and Father’s desire to retaliate against Mother for the years when she had pr imary custody of [C]hild[?] Mother’s Brief at 8 (capitalization omitted). In custody modification cases, our scope and standard of re view are as follows: In reviewing a custody order, our scope is of the broad est type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by comp etent

### J-S42044-14

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evidence of record, as our role does not include making independent factual determinations. In addition, wit h regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the wi tnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultim ately, the test is whether the trial court’s conclusions are unrea sonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an e rror of law, or are unreasonable in light of the sustainable findi ngs of the trial court. C.R.F. v. S.E.F. , 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitt ed). Additionally, we have stated, [t]he discretion that a trial court employs in custody ma tters should be accorded the utmost respect, given the special na ture of the proceeding and the lasting impact the result wi ll have on the lives of the parties concerned. Indeed, the knowle dge gained by a trial court in observing witnesses in a custo dy proceeding cannot adequately be imparted to an appell ate court by a printed record. Ketterer v. Seifert , 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson v. Beck , 858 A.2d 1250, 1254 (Pa. Super. 2004)). In any custody case decided under the Child Custody Act (“Act”), 2 

### the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial court may modify a custody order if it serves the “best i nterests of the child.” See 23 Pa.C.S.A. § 5338. Section 5328(a) sets forth the following

2 

### See 23 Pa.C.S.A. §§ 5321-5340. Because the trial in thi s matter was held in January of 2014, the Act applies to this case. See C.R.F. , 45 A.3d at 445 (holding that, if the custody evidentiary proceeding co mmences on or after the effective date of the Act, i.e. , January 24, 2011, the provisions of the Act apply).

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list of sixteen factors that the trial court must consider when making a “best interests of the child” analysis: § 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 considerin g all relevant factors, giving weighted consideration to tho se factors which affect the safety of the child, including the foll owing: (1) Which party is more likely to encourage and permi t frequent and continuing contact between the child and a nother party. (2) The present and past abuse committed by a party or member of the party’s household, whether there is a con tinued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervi sion of the child. (3) The parental duties performed by each party on be half 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 agains t the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the chil d from harm. (9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child ad equate for the child’s emotional needs.

### J-S42044-14

-6 - (10) Which party is more likely to attend to the dail y physical, emotional, developmental, educational and sp ecial needs of the child. (11) The proximity of the residences of the parties. (12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements. (13) The level of conflict between the parties and th e willingness and ability of the parties to cooperate wi th one another. A party’s effort to protect a child from abu se by another party is not evidence of unwillingness or inab ility to cooperate with that party. (14) The history of drug or alcohol abuse of a party o r 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. 3 

### Moreover, section 5323(d) mandates that, when the trial court awards custody, it “shall delineate the rea sons for its decision on the record in open court or in a written opinion or order.” Id . at § 5323(d). In her first issue, Mother argues that the trial court erred in giving controlling weight to Child’s stated preference to resid e with Father. Mother’s Brief at 15. Mother contends that, although a child’s wishes are important, they are not controlling in custody matter s. Id . Mother asserts that a child’s preference must be based upon reasons that comport with his

3 

### Effective January 1, 2014, the Act was amended to incl ude an additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child abuse and involvement with child protective services).

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best interests, and that where the child is very young or can give no adequate reason for his preference, the trial court is to accord little weight to the child’s preference. Id . at 15. Mother contends that Child is young (eight years of age), and that he did not articulate emphatic reasons for his preference. Id . at 15, 17. Thus, Mother urges, the trial court abuse d its discretion by relying on Child’s stated preference. Id . at 18.

The preference of a child, although not controlling, i s a factor to be carefully considered, as long as it is based on good reasons. The child’s maturity and intelligence must be considered, and the weight to be given the child’s pref erence can best be determined by the judge before whom the child appears. Swope v. Swope , 689 A.2d 264, 266 (Pa. Super. 1997) (citations omit ted). Here, the trial court identified and discussed each of t he sixteen section 5328(a) factors in its Opinion. See Trial Court Opinion, 2/14/14, at 19-23. Additionally, the trial court carefully consid ered Child’s preference to live with Father, and found it to be based on good r easons. See id . at 23- 25. Specifically, the trial court determined that, ba sed on Child’s prior “toxic and unsafe” living situation with Mother and B.S., Ch ild feared that Mother could place him in a bad situation if she moved him fro m Maternal Grandparents’ home. See id . at 24. Further, the trial court found that Child preferred to live with Father so that he could spend m ore time with Father, and so that Stepmother could help him with his homewor k. See id . at 20- 21. The trial court specifically found that Mother’s t estimony that she did

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not know that Child was afraid of B.S. until after t hey moved from the home they shared with him, lacked credibility. See id . at 24 n.1. We defer to the determinations of the trial court as to the credibility and weight it gave to the testimony of Child and Mot her. See C.R.F. , 45 A.3d at 443. The trial court’s determinations regardi ng the weight to accord Child’s preference do not involve an error of law, a nd are not unreasonable in light of the sustainable findings of the trial cour t as to the credibility of Child and Mother. Id. Thus, we find no abuse of the trial court’s discretion in its affording Child’s stated preference weighted consi deration as a section 5328(a) factor, as Child’s preference was based on good r easons. See Swope , 689 A.2d at 266. In her second issue, Mother argues that the trial court “chose to disregard the comprehensive, well-reasoned and uncontrov erted opinion and recommendation of the [trial c]ourt’s own expert[, Dr. Zaffy,] and awarded primary custody of [Child] to Father.” Mother’s Brief at 20. Mother points out Dr. Zaffy’s recommendation that Mother retain pri mary physical custody of Child during the school year, but that Father be a warded an additional custodial weekend per month during the school year. Id . Mother claims that the trial court failed to give adequate considera tion to Dr. Zaffy’s report, and discounted her uncontradicted evaluation. Id

. [W]hen expert evaluation is uncontradicted or unquali fied, a child custody court abuses its fact[-]finding discretion if it totally discounts expert evaluation. To say that a cour t cannot discount uncontradicted evidence, however, is merely to

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rephrase the requirement that a child custody court’s concl usion have competent evidence to support it. So long as the trial court’s conclusions are founded in the record, the lower court [is] not obligated to accept the conclusions of the expert s. It is not this Court’s function to determine whether the tri al court reached the “right” decision; rather, we must consider wh ether, “based on the evidence presented, given due deference t o the trial court’s weight and credibility determinations,” t he trial court erred or abused its discretion in awarding custody to th e prevailing party. King v. King , 889 A.2d 630, 632 (Pa. Super. 2005) (citations omit ted). The trial court explained its reasons for not followi ng Dr. Zaffy’s recommendation that Mother should have primary physical custody as follows: In recommending that the status quo be maintained, Dr. Zaffy placed great emphasis on Child’s close bond with Matern al Grandparents and their availability to care for Child . Dr. Zaffy ignored Mother’s stated intention to move from Matern al Grandparents’ home in the foreseeable future. She al so did not factor in the substantial anxiety that Child feels abou t moving elsewhere with Mother. Trial Court Opinion, 2/14/14, at 25 n.2. Here, the trial court adequately explained its reason ing, and its conclusions are supported by the record. See id . Thus, the trial court’s decision to rely on the evidence presented at the custod y trial, instead of on the recommendation of the court-appointed custody evalu ator, was not an abuse of discretion. See King , 889 A.2d at 632. In her third issue, Mother argues that the trial court erred by failing to fully consider the potential impact of awarding primar y custody to Father, given that Mother has been Child’s primary custodian sin ce the parties’

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separation. Mother’s Brief at 24. Mother relies on t he primary caretaker doctrine in support of her argument that the trial co urt should have maintained primary physical custody with her. Id . at 25. Mother asserts that she has provided Child with a stable and consistent environment, and notes the positive role that Maternal Grandparents hav e played in Child’s life as his caretakers. Id . at 26. Mother contends that awarding primary physical custody to Father will result in a change in Ch ild’s school, and subject Child to haphazard childcare arrangements. Id

. The considerations embraced by the primary caretaker do ctrine have been woven into the section 5328(a) factors, such that th ey have become part of the trial court’s mandatory inquiry. See M.J.M. v. M.L.G. , 63 A.3d 331, 339 (Pa. Super. 2013). Furthermore, the conside rations that the primary caretaker doctrine sought to address are included implicitly in the section 5328(a) factors. See id . (citing 23 Pa.C.S.A. §§ 5328(a)(3) (requiring consideration of “[t]he parental duties per formed by each party on behalf of the child.”); (a)(4) (requiring consideratio n of “[t]he need for stability and continuity in the child’s education, fami ly life and community life.”)). Thus, to the extent that the primary caret aker doctrine required positive emphasis on the primary caretaker’s status, it is no longer viable. See M.J.M. , 63 A.3d at 339 (stating that “[w]e simply cannot gra ft the judicially-created primary caretaker doctrine on to the inquiry that the Legislature has established ....”).

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Here, the trial court addressed the section 5328(a) fact ors in its Opinion, including factors (a)(3) and (a)(4), before f inding that it was in Child’s best interests to award primary physical custody to Father. See Trial Court Opinion, 1/14/14, at 19-20. We discern no abuse of discretion by the trial court, and affirm on this basis as to this issue. See id

. Mother also contends that, absent compelling reasons to t he contrary, siblings should be raised together in one household. Mo ther’s Brief at 27. Mother asserts that Child and Half-Brother are very clo sely bonded, and that Child misses Half-Brother when they are with their resp ective fathers. Id . at 28. Mother argues that there are no compelling reason s to separate Child and Half-Brother, and that the trial court erred by failing to keep Child and Half-Brother together. Id

. When considering sibling relationships in making a cust ody determination, the policy in Pennsylvania is to permit siblings to be r aised together, whenever possible (the doctrine of “family u nity” or “whole family doctrine”). Absent compelling reasons to separate siblings, they should be reared in the same household t o permit the continuity and stability necessary for a young child’ s development. This policy does not distinguish between halfsiblings and siblings who share both biological parents. However, this Court has made clear that the policy aga inst separation of siblings is only one factor—and not a contr olling factor—in the ultimate custody decision. In the majori ty of cases in which this doctrine has been invoked, the children ha ve been reared together prior to separation or divorce of th e parents. In cases where the siblings have not been reared in the same household, the force of the doctrine is less compelling.

### J-S42044-14

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Johns v. Cioci , 865 A.2d 931, 942-43 (Pa. Super. 2004) (some inter nal citations and quotation marks omitted); see also Nomland v. Nomland , 813 A.2d 850, 855-56 (Pa. Super. 2002) (explaining that the general preference to have siblings raised together must yield t o the paramount principle that the best interests of the child is the det ermining factor in a custody case). Here, the trial court determined that Child’s concerns about his stability if he were to remain in Mother’s primary ph ysical custody outweighed the concern of separating him from Half-Bro ther. See Trial Court Opinion, 2/14/14, at 23-25. The trial court f ound Child’s stability concerns if he remains in Mother’s primary physical custody were compelling reasons for him to live primarily with Father. 4 

### See Trial Court Opinion, 3/25/14, at 7. We discern no abuse of the trial court’ s discretion in separating the half-siblings. Lastly, we address Mother’s contention that the trial co urt failed to consider Father’s character, conduct, and motivation in see king modification of custody. Mother’s Brief at 30. In particular, Moth er cites to 23 Pa.C.S.A. § 5329(a), 5 

### arguing that the trial court failed to consider Fathe r’s three

4 

### The trial court noted that Child and Half-Brother w ould be together every other week in the summer. See Trial Court Opinion, 3/25/14, at 7.

5 

### Section 5329(a) applies to custody actions and requires t he trial court to consider whether any party has been convicted of certain alcohol and drugrelated offenses. Section 5329(c) requires the judge to perform an initial evaluation to determine whether the party who commit ted an offense under

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convictions for driving under the influence of alcohol, his conviction for possession of marijuana, his continued consumption of alcoho l, and his anger management issues. Mother’s Brief at 30. Mother contends that the trial court erred by dismissing Father’s prior issues with drugs and alcohol without conducting a thorough and in-depth investigat ion to ensure that awarding primary custody to Father is in Child’s best interest. Id . at 31. Mother also claims that the trial court failed to ful ly consider Father’s motivation in bringing the present action in view of his testimony that he wished to retaliate against Mother for not being len ient with him when she had custody of Child. Id

. Here, the trial court considered Father’s prior alcohol and drug issues, and noted that Father’s most recent substance abuse convict ion was approximately fifteen years prior to the trial. See Trial Court Opinion, 3/25/14, at 7. The trial court also observed that Mot her similarly used alcohol and drugs with Father in the past. See id . Further, the trial court considered Dr. Zaffy’s statement in her report that Fat her’s history of drug and alcohol abuse did not pose a threat of harm to Chi ld. See id . at 8. The record reflects that the trial court also took into account Father’s history of anger management issues with Mother and Mat ernal Grandmother, and the fact that Father took an anger management course at the time of the parties’ separation, pursuant to a PFA order that Mother subsection (a) poses a threat to the child, and whether counseling is necessary.

### J-S42044-14

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obtained against him. See id . at 7-8. The trial court found that there was no evidence that Father cannot control his temper with Child, and noted that Dr. Zaffy expressed no concern about Father’s ability to care for Child. See id . at 8. Finally, the trial court considered Father’s trial testi mony that Mother should experience what it is like to suffer some loss of t ime with Child. See id . The trial court found that Father did not exhibit a retaliatory motive in seeking primary physical custody. See id . The trial court was not concerned about Father retaliating against Mother by w ithholding custody from her, as the trial court had faith in the influen ce of Stepmother on the situation, and the trial court advised that it would n ot accept any retaliation by Father. See id . at 8-9. The trial court’s conclusions are supported by competent e vidence in the record, and are not unfounded. Therefore, the t rial court properly considered the section 5328(a) factors, and determined th at it was in Child’s best interests to award Father primary physical custody of Child. Accordingly, we affirm the Order of the trial court. Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/16/2014Circulated 08/27/2014 10:26 AMCirculated 08/27/2014 10:26 AMCirculated 08/27/2014 10:26 AMCirculated 08/27/2014 10 26 AM

IN THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA 

# M.M.

Plaintiff**.~** VB. 

# K.I"

. No. 2012

- 0483

- CIVIL

Defendant 

# MEMORANDUM and ORDER**~** 

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IN THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA 

# M.M.

Plaintiff

• No. 2012

- 0483

- CIVIL

Defendant 

# MEMORANDUM

• VALASEK, P.J . Before the Court for disposition is a complaint to
f d • •• 

# X.kii'.·\.d ..... , born May 3, 2005 ("Child") modi y custo y of • • 

## M. trI. The petition to modify was filed by
.......... . ("Father") 

## k.M. on May 29, 2013. ("Mother") currently has primary physical custody of Child pursuant to a consent custody
order entered by the Court on October 25, 2012. Father now seeks primary physical custody of Child.
The Court conducted a custody trial on January 24, 

## l 2014, at which time the parties appeared, represented by counsel.
The Court heard extended testimony from Mother, Father and Child,
and brief testimony from other witnesses. The trial record also
includes psychologist Donna J. Zaffy's written report ("Zaffy's ReportH) of psychological evaluations she performed of Mother,

### S-tepM~ Father, 

# 7 Child, and ("Maternal Grandparents H )Circulated 08/27/2014 10:26 AM



### , , 1 v, .... 

## _IIII!I' No. 2Q12-0483-Civil
FACTS
After reviewing the entire record, the Court makes the following findings of fact. Father, age 41, lives in a house in Clarion, Clarion County on a one-acre lot in town. Mother's residence is located
in South Buffalo Township, Armstrong County, approximately 50
miles away from Father's residence. The drive from one house to
the other takes approximately an hour and fifteen minutes.
Father is a high school graduate.
Father has worked at Clarion Boards Industry since August 12, 2013. Before working at Clarion Boards, Father
worked at B 

### & W Smith Excavating as a foreman setting up gas
fields. For the excavating company, he was on the road a lot,
worked 19 to 20-hour days, and never knew when he would be working. 

### ( Father quit the gas field job to improve his chances
of gaining primary custody of Child and to make himself more available to Child. For years, Child has been asking Father if
he could live primarily with Father. Father told Child he would
do what he could do to satisfy child's request.
Father now works Monday through Friday from 7:00 a.m.
until 5:00 p.m. Father's mandatory hours are from 7:00 a.m.
until 3:00 p.m., but Father works extra to receive overtime pay. However, Father is able to leave work if he needs to, so he is

2Circulated 08/27/2014 10:26 AM 

# n' ! v . •• 

### -IIIP No. 2012-0483-Civil
available 

### if Child needs him for some reason. Father works only 

### 2% miles from his home.
Father married 

## 8.M. 

## (l'Sfefm.+h«') his high school sweetheart,

.......

, on October I, 2011. They started seeing each other shortly after Mother and Father divorced.

### SWMO~

........ works for Krause USA, where she has worked for
15 years. She is the manager of customer service and works from

# ·;tett"S~r until 5:00 p.m. has some flexibility in her • 8:00 a.m. 

### ( hours.
The summer of 2013 was the first summer that Mother
and Father exercised physical custody of Child on a week on/week
off basis. Prior to 2013, Mother had primary custody of Child
in the summer. when Father had custody of Child in the summer of 2013, Child was mostly taken care of by Father's mother. Father

f prefers to have family members take care of Child rather putting

, him in day care. Child did attend a neighborhood day care facility approximately two days a week in the summer of 2013. Child
loved attending the day care, where about six of his friends
also go. The day care facility is very close to Father's house.
Father's mother ("Paternal Grandmother") is Father's
first choice for child care because, among other things, 

# D. Paternal Grandmother has a mentally retarded son, 

## 77 with

3Circulated 08/27/2014 10:26 AM 

# .7" •.

v ... 

# 6_.1

No. 2012-0483-Civil
whom Child loves to play cards. Child and Paternal Grandmother
have a very close relationship.
Paternal Grandmother works at WalMart approximately 20
hours a week.
Father's sister house, Paternal Grandmother's house, and Father's house are places where Father's family gets together for family gatherings. All of Father's family lives
within three miles of his home, except for one sister, who lives
30 minutes away in Oil City.

met Child approximately one year after Father 

### l:tgMOtiov fairly**s.~.fu,r** and 

## 2 began dating. Child opened up to quickly and they get along very well. 

### Sk,fM.ft>w**~1."51T.** and Child are inseparable when Child is at Father's house. 

# S\GvIl'1'#1w I 7 cooks, cleans, feeds, buys clothes for Child,
and helps him with his schoolwork. Father tries to help Child
with his schoolwork

# ~ "a little," but Child prefers to do it with

Child has difficulties reading.

## $ktrW1~ Father and ( try to make Child read a minimum of 15 minutes a day.
In previous years, Father was not very involved with
Child's schooling. In the school year beginning in August of 

## S\QJm,\+IW' 2013, however, Father and 

## FAtS attended the parent

### S\.tf~ orientation and parent-teacher conferences. 

### 2 $ has also

4Circulated 08/27/2014 10:26 AM 

# ""'v._**~483-Civil** been communicating with Child's school via e-mail. Father looks

over Child's schoolwork and papers when Child brings his school backpack to Father's house.
Father has not participated in Child's health appointments in the past. However, he plans to do so in the
future.

## ~~11w 

# IIIIIIII places a great deal of importance on Mother seeing Child. Should Father receive primary physical custody of 

# S\efvrto+llw { Child, 

# tIIIIIt is amenable to Child seeing Mother whenever Child

wants.
Father's house is located in the Clarion-Limestone
School District. The elementary school that Child would have to
attend in that district is an hour's bus ride away from Father's
house. Father does not want Child to ride the school bus two
hours a day. Instead, if Father receives primary physical custody 

### S\ep!vi<rltler of Child, he and

....... will pay to send Child to
Clarion Elementary School, which is just a mile away. Clarion Elementary is operated by the Clarion Area School District.
There are three third grade classrooms at Clarion Elementary School and approximately about 24 or 25 children ln
each class. Currently, Child attends school at south Buffalo
School in the Freeport Area School District. There are fifteen
children in his third grade class.

5Circulated 08/27/2014 10:26 AM 7 j v,
J No, 2012-0483-civil
Father wants Child to transfer to Clarion'Elementary immediately if Father is granted primary custody of Child. However, he is willing to wait until the next school year to change Child's school if that is what a professional recommends. 

### S.(e.p...,.!hw If Father gains primary custody of Child,**~** will
take Child to Clarion Elementary School in the morning and pick 

## <5!e?rI'1o+l-!e-,- him up in the afternoon.

........ will drop Child off at
Paternal Grandmother's house after school. If Paternal



# ... R

•. Grandmother is not available, Child will stay 

### with,S •


# • • e
..... Father's sister, or with • 

### 2 his 22-year-old niece. Child

can also walk to the nearby day care center to be with his
friends if he wants to. According to Father, he raised Child until about the
age of three, when Mother and Father separated for good.
When Mother and Father separated in 2009, Mother filed

a protection from abuse petition against Father. Under the PFA
order subsequently entered, Father was required to attend six
weeks of anger management counseling. Father completed the
class as required.
The PFA order also contained custody provisions whereby Child lived primarily with Mother and Father saw Child
every other weekend. According to Father, Mother never allowed Father to spend any additional time with Child, even when Father requested

6Circulated 08/27/2014 10:26 AM 

# --.qv .. s ... _ No. 2012-0483-Civil it, unless Father first agreed to relinquish other time with


### Child. Mother denied this.
On May 17, 2013, Mother called Father and 

## 8.S. tell them that her live-in paramour, had tried 

## 8·S
• to attack Child twice the previous evening at Mother and • 's 

# B.S. home. Mother told them she had protected Child from

..... and 

# M. would never let 

### 7 hurt Child. Mother stated that Child 

# M. would never be around 

### 2 again.
At the time of the phone call to Father, Mother had just removed herself and Child from the house they had been 

## &.$**J.l.alf·8m~1'** sharing 

# with, '. Mother moved herself, Child 

# and'S""_. 8,<'.

. (Mother's baby by

...... ) lnto Maternal Grandparents' house nearby. Mother and Child had lived with Maternal Grandparents 

# B.s. before moving in with 

# .tlli.t

On May 17, 2013, Father informed Mother that he 

# B.s. intended to file a protection from abuse petition against

.......

on Child's behalf. Mother did not object. However, that weekend, Mother and her father called 

# 8.S Father to urge him not to file a PFA petition against 

# 1IIIIiiiIt.

Father filed a petition anyway. A full PFA hearing was conducted in June of 2013. The Honorable Joseph A. Nickleach
denied the PFA petition, telling the parties that he believed
the matter was a custody issue.

7Circulated 08/27/2014 10:26 AM

..... ,. v. 

### E 3 

### E No. 2012 0483-Civil 

# e.>' When Mother was living with 

### %, Child never wanted

to return to Mother's house after Child's visits with Father. 

# 8.S. Child told Father he was afraid of 7 S.
Father was glad when Mother and Child moved back in
with Maternal Grandparents because Father knew that Child would
be safe and well-taken care of there.
Father has a criminal record consisting of three 

### driving under the influence convictions: one in 1991, ODe in
1992 and the last one in 1996. Father was also convicted of possession of marijuana in 1999.
Father acknowledged to Dr. Zaffy that he had "a past history of alcohol and drug use including prescription pills (Vicodin) " Zaffy Report, at 13.
Father went to a 2S-day drug and alcohol
rehabilitation program at ARC Manor after his second DUI arrest.
Father also participated in Alcoholics Anonymous "for awhile,"
but has not done so for the past fifteen years. Father said he

now feels comfortable drinking alcohol because through counseling, he has dealt with the problems that caused him to
drink excessively. Father testified that he drinks about four
beers per week and no longer smokes marijuana. The threat of
Father relapsing back to where alcohol is a problem is negligible.

8Circulated 08/27/2014 10:26 AM

...... v· .... 

## _1 No. 2012-0483-civil
Based upon his past experience, Father is highly
concerned about what kind of man Mother will date when she moves
out of Maternal Grandparents' house. Father is also concerned
that Mother will move back into the house she lived in with

# ~. Such a move would greatly upset Child, who has bad
memories of living there.
Father is also concerned about Maternal Grandfather's
behavior. Father said Maternal Grandfather sometimes made Child
cry when he ("Maternal Grandfather") yelled while watching
football. Father also said that Paternal Grandfather said mean things about Father to Child, including that Father brainwashed
Child. Father admittedly does not get along with Maternal
Grandfather.
Father said it is in Child's primarily with him and

# sttrvloth~cause best interest to live they can provide Child
with a stable, active, and stimulating life, and can surround
Child with people who will give Child all of their attention.
Father also said it would be better for Child to live in town
among his friends rather than to be isolated out in the countryside with Maternal Grandparents. In addition, Child has his own bedroom at Father's house.
Father is bitter about the limited amount of time he
has spent with Child since the parties separated in 2009.
Father told the Court that if he receives primary custody,

9Circulated 08/27/2014 10:26 AM

v. NO. 2012-0483-civil
Mother should be granted custody of Child every other weekend, including in the summer, so that Mother could feel what it has
been like for Father to not see Child for two weeks at a time.
Father said Mother should just have two weeks extra with Child during the summer, not week on/week off custody. Father later
• told the Court that he did not mean what he said. Mother, age 37, lives in a four-bedroom house in South

## ""I.f·~ Buffalo Township with her parents, Child and • Mother
has an undergraduate degree in business management and a
master's degree in education.
Mother works as a customer service associate with PNC


### Bank at Pittsburgh Mills. She has worked there since 2012.
Mother works forty hours a week. She works from 8:45 a.m. until
6:15 p.m. two or three days a week. Otherwise, she works from
8:45 a.m. until 3:45 p.m. Mother is required to work two Saturdays per month.
Mother works on the Saturdays that her boys are with their
fathers for the weekend.
Mother gets Child ready for school before she leaves
for work. After she leaves, Maternal Grandfather makes Child
breakfast. When Mother comes home from work, she takes over 

# IIvJf. \'b rotl1 Weare of Child and

.. .

### ~.s. Mother and her former paramour, 

# .S

....**~,** began living together in November of 2011. Child lived with them in a home

10Circulated 08/27/2014 10:26 AM

( 

# . 2 I V·

__ 

### III No. 2012-0483-Civil 

## &.5. owned by 

## I.SIl" s ex-wife located approximately half a mile from 

# B.S" Maternal Grandparents' home.

..... '8 two children also lived at
the house fifty percent of the
On August 22, 2012, Child's half-brother, was born. 

# B.S, The incident that spurred Mother to



# • e,., lilt 

# ...;;B
.. , S leave'" began 

### with a fight between May 16, 2 

# e 13.
• 

# B.S. ? 

### 7 Child and j I

__ 

# a f solder child, on and Mother started to argue and Mother
called 

### L 

## F a liar. The fight turned into a family argument.

### S.~ 

# . Mother asked. ; 

# 1b.1?. to leave. 

### When 

### 7 refused, Mother called
the police, who then came to the house

. 

### j1, 

## .S.

..... 's ex-wife also

came and removed her children.
Later that night, Mother made the decision to move back in with Maternal Grandparents the next day. Child was overjoyed to hear that he was moving back in with Maternal Grandparents. Child excitedly ran up to Maternal Grandparents'

van when they arrived the next day to take him, Mother and 

# \tth1.f.Pi

.. +t!V • back to their house. According to Mother, is an alcoholic. Mother 

# fJ.s

. stated that her relationship with

.... was "bad" and "got worse

over time."

not like Mother testified that Child did not tell her he did living with

# .~·~i until after Mother and Child had already moved back in with Maternal Grandparents.

11Circulated 08/27/2014 10:26 AM 

### • 2 v . • 

### 2

.. 

# _l1li.

No. 2012-0483-Civil

## ~.s. Child has told Mother that he did not like living with
and does not want to live in that house again. Child has
also told Mother that he wishes to live primarily with Father.
Maternal Grandparents, Mother, and the children live 

### together in the home 

### in which Mother grew up. The house has
three bedrooms. Child either sleeps with Mother or in the same 

# 1-lA1-f.
room as Mother is the primary caregiver to Child and


### when she is home. Mother takes the children for their medical

care. Maternal Grandparents have always provided babysitting
for Child, even when Mother and Child did not live with them.
Maternal Grandfather is a retired teacher and elementary school principal. Maternal Grandmother is a retired
German teacher.
Child is close to Maternal Grandparents and enjoys i 

# , their company. Child is close to his

# half-brother~ and enjoys playing with him.
Child has attended school in the Freeport Area School
District since kindergarten and has many friends there. Child

cannot walk to see his friends because they hang out in the Borough of Freeport, which is five miles away from Maternal Grandparents' house.

12Circulated 08/27/2014 10:26 AM

( No. 2012-0483-civil


### Child plays on a basketball team through the family's
church. Mother is Child's basketball coach.
Father brings Child to Child's basketball games when
Child is staying with Father.
Child is in third grade. He has been struggling with reading and receives special help during the school day pursuant
to Title I. There is also after-school tutoring available at school. However, Mother has been told by the school that the
after-school tutoring would not be helpful to Child.
Mother works with Child after school to improve his reading, spelling and vocabulary skills. Maternal Grandparents
also help Child with his reading and his homework.
There is a Custody Order consented to by Mother and
December of 2013 

### which gives Mother primary physical custody of

### b,~. 

### , 'I 

# fIp If· 

## flOt\1W' has partial custody of every other weekend from 9:00 a.m. until 7:00 p.m. on Saturday and on 

# e, ,S. Sunday, 

## 0 ,**!lA1f..&~** also has custody of 

### 1 two days during the
week.
Mother said she has no plans to leave her parents'
home

### I-W.I+.~~ "right now." She testified that she, Child and 

### 7 

### 7 are stable and happy and there is no reason to leave.
Mother said she will not remain at Maternal Grandparents' house indefinitely, however. Eventually, when she
has enough money, she plans to move to an apartment.

13Circulated 08/27/2014 10:26 AM 

# • No. 2012-0483-Civil 

### Mother and the children are welcome to stay with
Maternal Grandparents as long as they want. Maternal 

### Grandmother said Mother had not talked to her about any
"immediate" plans to leave.

### ~.s. Mother owns the four-bedroom house that she and.-.. previously lived in. Mother currently has a tenant occupying
the house. The rent she receives from the tenant pays for her $1,179 monthly mortgage payment. Mother said that before moving 

### back into that house, she would first ask Child if it 

### would
bother him to live there again.


### Because of Mother's "bad" relationships with Father

### ~.£.**and~,** 

### Mother is seeing a therapist. She is learning how to

set boundaries in her relationships with significant others and 

### how to be more assertive. Mother and Father have worked out a system of

{ 

### communication consisting of text messages and telephone calls. 

# SWTDrw Mother frequently calls I 

### since the two of along
and communicate calmly. Mother finds talking to

# 1;~~I~e:as i 

### e r than talking to Father. Mother calls Father them of what she has learned at Child's medical appointments.

### ~Of\1'" Mother and4llillt coordinate their vacations with one another. Mother and her family spend a week at the beach inCirculated 08/27/2014 10:26 AM



## ( No. 2012-0483-Civil
North Carolina every yeari Father and his family spend a week at Myrtle Beach.
Because of the traumas that Child has suffered, Mother supports Child having a full mental health assessment and possible mental health counseling as Dr. Zaffy has suggested.
Both Father and Mother admittedly partied with drugs
and alcohol prior to the time Child was born. Father and Mother
continued to use drugs and alcohol at times until Child was approximately three years old.
and
Father She is
concerned that if Child lives primarily with Father, his reading
issues will be totally ignored, he will not be disciplined, and
he will lose his strong bond with his little half-brother.
The Court interviewed Child in chambers. The Court
agrees with Dr. Zaffy that Child "did not appear to be coached but, rather, to be sharing his own thoughts and feelings." Zaffy Report, at 10.
Child wishes to live mostly with Father because "I
like him and I like to see him a lot." Child told the Court,
"It would make me feel happy to live with my Dad."
Child said he gets along better
Mother. He also said that he gives Mother, but

15 than with

# not5~ aCirculated 08/27/2014 10:26 AM 

# , No. 2012-0483-Civil
hard time about having to do his homework. Child likes doing
homework with

# ~ Father and Child read together every night for fifteen
minutes before bed. Father told Child he will do homework with
Child 

### if Child comes to live with him.
Child said he would have no problem going to a new school and not being around his old friends. Child said he
liked making new friends.
Child said he would miss Mother 

### if he lived primarily
with Father, so he would like to live with Mother ODe week OD,

one week off during the summer. Child said he did worry about
Mother missing him when he was with Father in the past.
Child told the Court that he was scared living with 

## &.$. "because he was always mean to me. 1/ In addition, 's

two children would do "stuff" and put the blame on Child.
Child said Mother knew that Child was scared [when

### ~S. they were living with ], but that she still wanted to live

### ~.S. with
Child worries that he might have to live in the same 

# B.s. house again that he had lived in with Child said he did

not want to remember what had happened there. He mentioned bad



# .....

# ~iiilS •. memories of**~&** getting drunk, yelling at him and throwing him

on the couch.Circulated 08/27/2014 10:26 AM

•



### \. Father has told Child that he missed Child a lot when
Child was not with him. Father told Child that he sometimes slept on Child's bed when he missed Child. Child misses Father,
too, when Child is not with Father.
Asked what disparaging things Mother and Father have
said about each other to him, Child replied that Mother just
says Father is a lunatic, "that's all." Father says "bad stuff"
about Mother sometimes, Child said. Father told Child that he
did not like Mother and that Mother was being mean to him.
Dr. Zaffy conducted psychological evaluations of Mother, Father, Child,

# srr~nd Maternal Grandparents for the
Court. 

# Childs Dr. Zaffy said, '_' s descriptions of his two families indicate that he has formed positive attachments to both of his parents and his well as
to his stepmother and maternal grandparents." Zaffy Report, at
10. 

# (.kilt.!

...... "enjoys interacting with members of the extended families, especially mother's family." Id. 

### at 10.
Dr. Zaffy stated, "In summary, ... , neither the parents, stepmother, nor the grandparents are exhibiting any mental health concerns that compromise their ability to care 

# (klild appropriately

# for~. All love IIIIIPand are able to meet his emotional needs." Zaffy Report, at 22. "The primary

17Circulated 08/27/2014 10:26 AM

• No. 2012-0483-Civil



### concerns center on co-parenting and the difficulty the parents have in communicating about their son." Id.


### Dr. Zaffy ultimately recommended that Mother retain primary custody of Child and that Father have additional
weekends with Child during the school year because she saw no good reason to disturb the status quo. Dr. Zaffy was particularly impressed with Maternal Grandparents, stating, "The

# Ma~**~~~~e** to provide a stable, safe, and secure home
environment for both of their grandsons. Since both retired, they are available to provide child care if are

# ,§~i1i is

off**~~~~o~rs** 

### ill when his mother is at work. In addition, the both of whom are teachers, are well-equipped to help
&With his academic challenges." Id.

DISCUSSION


### The primary concern in any custody case is the best 

# C interests of Child. This best interests standard considers all
factors that legitimately have an effect upon Child's physical, intellectual, moral, and spiritual well-being. Saintz v. 

### Rinker, 902 A.2d 509, 512 (Pa.Super. 2006).
Section 5328 of the Pennsylvania Child Custody Law, 23
Pa.C.S.A. § 

### 5328(a), provides a list of factors that the Court

must consider in making any custody determination. We address
each factor separately below.

18Circulated 08/27/2014 10:26 AM



## (

\. No. 2012-0483-Civil


### 1. Which party is more likely to encourage and permit frequent and continuing contact between Child and the
other party. In the past, Mother has been the party less likely

to encourage and permit frequent and continuing contact between
Child and Father. At present, the Court believes that neither party is more likely to do so than the other. Father has expressed
medicine. some desire to give Mother a taste of her

# However,Sf€t~~ a positive influence own

on Father in
this regard and is likely to encourage Child to have extra time
with Mother, not less.
2. Abuse committed by a party or a member of a party's household. Mother obtained a PFA order against Father
in 2009 when Mother and Father separated. Mother told Dr. Zaffy
that the PFA was based upon a push that Father gave her. The
PFA required Father to take anger management classes. Father complied. In her evaluation of Father, Dr. Zaffy expressed no

concerns regarding Child's safety around Father. The Court
finds that Father poses absolutely no danger to Child.
3. The parental duties performed by each party on behalf of Child. It is not clear who the primary caregiver for
Child was prior to separation. Mother has had primary physical custody of Child since the parties separated in 2009. Mother
takes Child to see the doctor and helps Child with his homework.
Mother has been the parent interacting with Child's school until

19Circulated 08/27/2014 10:26 AM

• 

# SIt(mIGthU' the 2013-2014 school year, when Father and**~have** 

### become

more involved.
4. The need for stability and continuity III Child's education, family life and community life. Child is affirmatively asking to change his school, community, and family
life. Child seems quite happy at the prospect of doing so. Child remains quite shaken from his experience of having lived

### ~.s. with 

### 7 ., an angry alcoholic, and

### ~$.

..... '8 bullying children
for a year and a half.
Father and 

# SW lYl oli1u'than Child evidently feels more secure with
with Mother, whom he foresees will move
out of Maternal Grandparents' house, thus subjecting Child to

more uncertainty.
5. The availability of extended family. Both Mother
and Father have extended family to help out with child care.
6. Child's sibling relationships. Child has developed a solid bond with half-brother- ••••••• C
7. The preference of Child. Child has been asking

to live with Father

# andS~or years. There is no evidence
that Child has been coached or subverted into making this request. Child simply wishes to spend significantly more time
with Father. He also likes being

# around~with whom
Child has developed a very strong bond. relationship

# with~s illustrated The strength of Child's by the fact that Child, by his own admission, makes a big fuss when it is time to do his

20Circulated 08/27/2014 10:26 AM

No. 2012 0483-Civil 

### homework, but not 

### when he is

# With~ Sl-epMJi:!!er

_ is Child's
favorite person to do homework with, which is extremely important, since Child has been struggling with reading and does

not like to do homework at all.
8. The attempts of a parent to turn Child against
the other parent. There is evidence that Mother and Father have occasionally tried to turn Child against the other parent by making disparaging remarks in front of Child.
9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with Child adequate for Child's emotional needs. Father is more likely to do so. Father demonstrated a great deal of commitment to Child's welfare when he quit his previous job, which required long hours and frequent absences from home, to make himself
available to Child on a daily and consistent basis. By 

## { contrast, Mother showed extremely bad judgment and a lack of

### ~.'S. concern for Child when Mother chose to remain with in the 

# e..s. face of Child's expressed fear of 

# 7 and the situation.
10. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special
needs of Child. Father is more likely to do so with the help of
his wife,
11. The proximity of the residences of the parties.
The parties live approximately fifty miles apart.

21Circulated 08/27/2014 10:26 AM

No. 2012-0483 Civil


### 12. Each party's availability to care for Child or ability to make appropriate child-care arrangements. Each party
is available to care for Child when not working. Each party also has the 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. The parties have a significant level of conflict. It
is not clear that either party is more willing and able to cooperate than the other. The 

# Sffiltl1 0 

## fhw Court sees
........ as a very helpful go-between for the parties at this point. However, it
is in Child's best interests that Mother and Father learn to deal with each other directly.
14. The history of drug or alcohol abuse of a party

or member of a party's household. Father has a history of drug
and alcohol abuse. He does not currently appear to be abusing substances, however. Mother also has some history of alcohol
and drug abuse, although not to the extent that Father does.
Chances of a relapse by either are negligible.
15. The mental and physical condition of a party or member of a party's household. The parties and the members of
their households do not suffer from any mental or physical
conditions that significantly affect their abilities to care for
Child.

22Circulated 08/27/2014 10:26 AM 

# • I]

NO. 2012-0483-civil
16. Any other relevant factor. In recommending that
Child remain primarily with Mother, Dr. Zaffy placed a great
deal of weight on Child's bond with his half-brother
It is true that the "general rule is that siblings
should not be separated without compelling reasons
.... If Swope v. Swope, 689 A.2d 264, 265 (Pa.Super. 1997) (citation omitted)

. However, this policy is "only one factor to be considered in determining the best interests of the child." Id. " [A]ny 

## l benefit derived from forcing a child to reside with one of its parents solely for the purpose of keeping the siblings together

can be outweighed by the detrimental effects on the child who prefers not to live with that particular parent." Sykora v. Sykora, 393 A.2d 888, 889 (Pa.Super. 1978). We note, too,

. that

### \ttI.\f·~\tIw Child and 

## I are only half-siblings, not full-siblings.
In the instant case, Child has been thinking about
where he wants to live for years. Although Child is close to

# ~:'~:~and Maternal Grandparents, Child has repeatedly stated
that he is "OK" with

# tln'f.f~ being separated from and Maternal Grandparents and that he places a higher importance on being

### ~l\1oH7ey with Father**and-~.** Mother testified that she intended to move out of her parents' house and strike out on her own when she has enough
money to rent an apartment. Mother emphasized that she did not
intend to move out "right now." Maternal Grandmother emphasized

23Circulated 08/27/2014 10:26 AM

( No. 2012-0483-Civil
that Mother had not discussed any "immediate" plans to move out. However, to the Court, these carefully chosen words suggest that
Mother will be moving out sooner rather than later.
That prospect is what causes Child to be worried about
the future. Understandably, given his previous bad experience,
Child does not want to move somewhere else with Mother. Child
has stated that if and when Mother does move out, he would much
rather go live with Father, or failing that, remain with
Maternal Grandparents in their home.
The record is clear: Mother chose to reside with an
angry, alcoholic boyfriend for a year and a half, despite the
fact that, as Mother herself put it, the relationship was a bad

one and got worse over time. Mother decided to keep Child in a toxic and unsafe situation, even after Child told Mother that he 

# (l)S. 

# e, .S. was afraid of 

### & 

### i and that

_ had pushed him. 1
Mother's poor judgment and apparent lack of concern for Child's well-being was not lost on Child. He seems determined not to be put in that situation again. Child wants certainty and security, not uncertainty and insecurity. He 

# s.h>J1lV1o+\1t.r and- ....... , who have a loving prefers to live with Father



# es.
t Mother testified that she did not know Child was afraiGlgf

...... until after they had moved out of the house they were sharing**with~.~** Court does not find Mother's testimony to be credible. Child made it clear that he had told Mother that he was afraid, and that she decided to stay with

..... anyway. 

### &.!i24Circulated 08/27/2014 10:26 AM

• NO. 2012-0483-Civil marriage and who show every intention of staying put in Clarion.
Child's desire is wholly rational.
As shown above, there are compelling reasons for Child

to live primarily with Father, despite the fact that he will be

### H1Ilf.(3~ separated from 

### & 

## 1.2 Therefore, the Court finds that it is
in Child's best interests to live primarily with Father and will
award Father primary physical custody of Child

. An appropriate Order will be entered.

2 In recommending that the status quo be maintained, Dr. Zaffy placed great emphasis on Child's close bond with Maternal Grandparents and their availability to care for Child. Dr. Zaffy ignored Mother's stated intention to move from Maternal Grandparents' home in the foreseeable future. She also did not factor in the substantial anxiety that child feels about moving elsewhere with Mother.

25