J-S62044-15

_____________________________

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.K.W. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

J.C.S.

Appellant No. 945 WDA 2015

Appeal from the Order Entered May 14, 2015

In the Court of Common Pleas of Crawford County

Civil Division at No(s): F.D. No. 2014-50

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 21, 2015

Appellant, J.C.S., appeals from the order entered in the Crawford 

County Court of Common Pleas, which granted primary physical custody of 

the parties’ minor child, G.O.S. (“Child”), to Appellant, subject to periods of 

partial custody by Appellee, S.K.W. We affirm. 

The relevant facts and procedural history of this appeal are as follows. 

The parties began a same-sex relationship in 2007 or 2008. Appellee moved 

into Appellant’s home around one year later. Appellant is the biological 

mother of Child, who was born in 2010, and Child’s younger twin siblings. 

Appellee became an adoptive parent of Child in July 2011. The parties 

subsequently had relationship difficulties, and Appellee moved out of 

Appellant’s home in August 2013. Following the separation, Appellee initially 
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had informal visits with Child on Monday evenings and one day each 

weekend. 

Appellee filed a custody complaint on February 18, 2014, seeking 

shared legal and physical custody of Child and Child’s siblings. On 

September 23, 2014, Appellee amended the complaint to request shared 

custody of Child only. Following a mediation conference, the court entered 

an initial custody order on December 5, 2014, which, inter alia, granted 

Appellant primary physical custody of Child. Appellee was granted partial 

physical custody of Child, which entitled Appellee to visit Child each week on 

Monday from 4:00 p.m. to 7:00 p.m. and on either Saturday or Sunday from 

10:00 a.m. to 6:00 p.m. 

On December 15, 2014, Appellee filed a motion for a de novo hearing. 

Following that hearing, the court entered a custody order on May 14, 2015, 

which again granted Appellant primary custody of Child, subject to periods of 

partial custody by Appellee. Specifically, the new order granted Appellee 

custody of Child on the first, third, and fourth weekend of every month, as 

well as from 4:00 p.m. to 7:00 p.m. on each weekday (Monday through 

Thursday) that Appellant is working.1 On June 11, 2015, Appellant filed a 

timely notice of appeal and concise statement of errors complained of on 

appeal per Pa.R.A.P. 1925(a)(2)(i). 

____________________________________________

1 Appellant is a firefighter who works a twenty-four hour shift and is off for 

forty-eight hours before beginning a new shift. 
J-S62044-15

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Appellant raises the following issues for review:

WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS 

DISCRETION IN FAILING TO CONSIDER APPELLANT’S 

EMPLOYMENT SCHEDULE IN FASHIONING A CUSTODY 

ORDER WHICH NOW RESULTS IN...CHILD BEING WITH 

HER SIBLINGS AND...APPELLANT ONLY TWO, 

NONCONSECUTIVE, WEEKEND DAYS EACH MONTH.

WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS 

DISCRETION IN ITS APPLICATION OF THE CUSTODY 

FACTORS TO THE FACTS AND CIRCUMSTANCES OF THIS 

CASE, AS FOLLOWS:

A. WHETHER THE TRIAL COURT ABUSED ITS 

DISCRETION AND ERRED IN DETERMINING THAT 

[APPELLEE] WAS MORE LIKELY TO ENCOURAGE AND 

PERMIT FREQUENT AND CONTINUING CONTACT 

BETWEEN...CHILD AND APPELLANT.

B. WHETHER THE TRIAL COURT ABUSED ITS 

DISCRETION AND ERRED IN DETERMINING 

THAT...CONSIDERATION OF THE FACTORS OF WHICH 

[OF] THE PARTIES PERFORMED PARENTAL DUTIES ON 

BEHALF OF...CHILD ONLY “SLIGHTLY” 

FAVORED...APPELLANT.

C. WHETHER THE TRIAL COURT ABUSED ITS 

DISCRETION AND ERRED IN NOT APPROPRIATELY 

CONSIDERING THE NEED FOR STABILITY AND 

CONTINUITY IN...CHILD’S EDUCATION, FAMILY LIFE 

AND COMMUNITY LIFE.

D. WHETHER THE TRIAL COURT ABUSED ITS 

DISCRETION AND ERRED IN DETERMINING THAT THE 

CONSIDERATION OF...CHILD’S SIBLING 

RELATIONSHIPS ONLY “SLIGHTLY” 

FAVORED...APPELLANT.

E. WHETHER THE TRIAL COURT ABUSED ITS 

DISCRETION AND ERRED IN DETERMINING THAT THE 

CONSIDERATION OF WHICH PARTY IS MORE LIKELY TO 

PROVIDE A MORE LOVING, STABLE, CONSISTENT AND 
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NURTURING RELATIONSHIP WITH...CHILD DID NOT 

FAVOR EITHER PARTY.

F. WHETHER THE TRIAL COURT ABUSED ITS 

DISCRETION AND ERRED IN DETERMINING THAT THE 

CONSIDERATION OF WHICH PARTY IS MORE LIKELY TO 

ATTEND TO THE DAILY PHYSICAL, EMOTIONAL, 

DEVELOPMENTAL, EDUCATIONAL AND SPECIAL NEEDS 

OF...CHILD DID NOT [FAVOR] EITHER PARTY. 

[A]PPELLEE ADMITTED THAT SHE DID NOT PROVIDE 

ANY SUPPLIES SUCH AS DIAPERS FOR [CHILD] AND 

DID NOTHING TO SUPPORT [CHILD] AFTER THE 

PARTIES SEPARATED. IN FACT...APPELLEE FAILED TO 

PROVIDE ANY SUPPORT UNTIL...APPELLANT FILED A 

CHILD SUPPORT ACTION AGAINST HER.

G. WHETHER THE TRIAL COURT ABUSED ITS 

DISCRETION AND ERRED IN DETERMINING THAT THE 

CONSIDERATION OF THE ABILITY OF THE PARTIES TO 

COOPERATE WITH ONE ANOTHER SLIGHTLY 

FAVORED...APPELLEE.

WHETHER THE [TRIAL] COURT’S INFERENCES AND 

DEDUCTIONS WERE UNSUPPORTED BY EVIDENCE OF 

RECORD AND WERE USED IN A PUNITIVE MANNER IN 

AWARDING APPELLEE SIGNIFICANTLY MORE CUSTODIAL 

TIME WITHOUT CONSIDERATION OF THE STATUTORY 

FACTORS AND WHICH RESULTED IN MEANINGFUL TIME 

WITH APPELLANT AND CHILD’S SIBLINGS BEING 

SIGNIFICANTLY DECREASED.

(Appellant’s Brief at 3-4). 

In reviewing a child custody order:

[O]ur scope is of the broadest type and our standard is 

abuse of discretion. This Court must accept findings of the 

trial court that are supported by competent evidence of 

record, as our role does not include making independent 

factual determinations. In addition, with regard to issues 

of credibility and weight of the evidence, this Court must 

defer to the trial judge who presided over the proceedings 

and thus viewed the witnesses first hand. However, we 

are not bound by the trial court’s deductions or inferences 
J-S62044-15

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from its factual findings. Ultimately, the test is whether 

the trial court’s conclusions are unreasonable as shown by 

the evidence of record. We may reject the conclusions of 

the trial court only if they involve an error of law, or are 

unreasonable in light of the sustainable findings of the trial 

court.

S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation 

omitted). Additionally,

[O]ur Legislature adopted a new Child Custody Act (“Act”), 

effective on January 24, 2011. See 23 Pa.C.S.A. §§ 5321–

5340. The new Act applies to “disputes relating to child 

custody matters” filed after the effective date of the new 

law. 23 Pa.C.S.A. § 5321. In E.D. v. M.P., 33 A.3d 73, 

76 (Pa.Super. 2011), we held that the Act applied to any 

proceeding, including a petition for relocation, initiated by 

a filing made after the effective date of the Act. 

Id. With respect to a custody order, Section 5328(a) provides:

§ 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 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). 
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(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, educational and 

special 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 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. 
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23 Pa.C.S.A. § 5328(a). In 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.” M.J.M. v. M.L.G., 63 A.3d 331, 

336 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A 

court’s explanation of reasons for its decision, which adequately addresses 

the relevant custody factors, complies with Section 5323(d). Id. In a child 

custody proceeding:

[O]n issues of credibility and weight of the evidence, we 

defer to the findings of the trial [court] who has had the 

opportunity to observe the proceedings and demeanor of 

the witnesses.

The parties cannot dictate the amount of weight the 

trial court places on evidence. Rather, the 

paramount concern of the trial court is the best 

interest of the child. Appellate interference is 

unwarranted if the trial court’s consideration of the 

best interest of the child was careful and thorough, 

and we are unable to find any abuse of discretion.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (internal 

citations omitted). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Anthony J. 

Vardaro, we conclude Appellant’s issues merit no relief. The trial court 

comprehensively discusses and properly disposes of the questions 

presented. (See Trial Court Opinion, filed June 25, 2015, incorporating its 
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Memorandum, filed May 14, 2015, at 2-7) (examining each relevant factor 

under applicable statute; concluding shared custody arrangement as ordered 

is in Child’s best interest). Accordingly, we affirm on the basis of the trial 

court’s opinion, incorporating its May 14, 2015 memorandum. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/2015
Another item raised in the Defendant's Statement of Matters Complained of on Appeal 

that this Court carefully considered is the history of drug or alcohol abuse. This Court was 

satisfied, taking into consideration testimony of witnesses including that of the Crawford County 

Human Services Coordinator for services for children that the Defendant does not drink 

alcoholic beverages when in custody of the child. This Court further addressed that concern to 

the extent it was applicable to either party in paragraph no. 6 of the Order directing that neither 

party shall use illegal drugs or alcohol at any time that party has care and custody of the child. 

To the extent the Defendant argues that this Court did not consider her employment 

schedule in fashioning the custody order, first of all it is difficult to do so because her schedule is 

twenty-four (24) hours on and forty-eight (48) hours off, which means that she may be available 

for the child on some weekends and on others she may not. The Order entered by this Court was 

intended to give the child some weekend time with the Plaintiff since the defendant has primary 

physical custody throughout the week and was further intended to allow the Plaintiff to have 

some time with the child during the week but only for three hours in the evening and only on 

days when the Defendant is not able to spend time with the child because of her work schedule. 

The decision rendered by this Court was intended to be in the best interest of the child 

after hearing all of the evidence presented in the case. 

This Court believes that the Memorandum attached to that Custody Order authored by 

this Court on May 13, 2015 explains for the most part this Court's reasoning with regard to the 

various factors for which the Defendant has complained of on appeal. 

AND NOW, June 25, 2015, this Court writes this Opinion pursuant to Pa.R.A.P. 1925(a) 

in light of the Notice of Appeal filed by the Defendant from the Custody Order entered by this 

Court on May 13, 2015 following a custody hearing. 

Anthony J. Vardaro, P.J. June 25, 2015 

OPINION SUR Pa. R.A.P. 1925{a) 

Barbara Mountjoy, Esq., for Plaintiff 

Debra S. Higgins, Esq., for Defendant 

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Vs. No. F.D. 2014-50 

Civil Action - Law 

IN THE COURT OF COMMON PLEAS OF CRAWFORD COUNTY, PENNSYLVANIA 

Circulated 10/09/2015 10:29 AM
2 

P.J. 

BY THE COURT, 

D 

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Finally, with regard to Item No. 3 raised in the Matters of Statement Complained of on 

Appeal, nothing was done by this Court in a putative matter. The determinations made were in 

the best interest of the child based on the evidence and this Court specifically notes that the 

Defendant continues to have substantially more physical custody of the child than the Plaintiff. 

However, as the record in this matter this Court believes will disclose, the Defendant would 

prefer that the Plaintiff have only minimal physical custodial time with the child which this 

Court does not find to be in the best interest of the child. 

Circulated 10/09/2015 10:29 AM
The parties called several witnesses at the hearing but to summarize the facts, while the 

two parties were not in agreement in their testimony, it appears that they got together in 2007 or 

2008 and by August of 2009 they had moved in together as partners. 

We have now conducted that De Novo hearing. 

The Plaintiff requested a De Novo hearing which was initially scheduled but rescheduled 

because Defendant's attorney was ill. 

Ultimately, the Plaintiff has not pursued custody of the twins and a mediation conference 

finally occurred on November 20, 2014 with regard to l=\·0,5. only resulting in an Order of 

December 4, 2014. 

The Plaintiff filed a custodv complaint on February 18. 2014 which actually included this 

child !:!~ well as twins, ::J"1 E. S., and . L. B I L. :S· ·--~ who were born on 

July , 2012. The Defendant is the natural mother of all three children but the Plaintiff only 

adopted ~- O, 5. and therefore was proceeding with regard to the twins arguing that she was in 

loco parentis with regard to the twins. 

These parties are the parents of one minor child, Gt , O _. S . ~ who was born on 

September ; 2010 and is therefore four years of age. 

Anthony J. Vardaro, P.J. May 13, 2015 

MEMORANDUM AND ORDER 

Barbara J. Mountjoy, Esq., for Plaintiff 

Debra S. Higgins, Esq., for Defendant 

' Defendant 

Vs. F.D. 2014-50 V 

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Plaintiff 

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IN THE COURT OF COMMON PLEAS OF CRAWFORD COUNTY, PENNSY,t~ AN_p\ 

Civil Action - Law 

Circulated 10/09/2015 10:29 AM
2 

The Plaintiff testified that when the parties were together whichever one of them was 

home would provide childcare or if both were home both would provide childcare. When neither 

was able to be home they had various babysitters, including at least two who wanted the child 

brought to them to stay overnight because of the work hours the parties had. 

The Plaintiff indicated the Defendant is a firefighter for the City of Meadville and works 

a twenty-four hour shift, is then off for forty-eight hours and begins another twenty-four hour 

shift. She does sometimes work an extra twenty-four hour shift as overtime. 

Sometime after the parties separated they attempted to reach an interim custody 

agreement and while ultimately the Plaintiff did not sign that, apparently her custody has been 

limited to Monday evenings from 4:00 p.m. to 7:00 p.m. and either Saturday or Sunday from 

10:00 p.m. to 6:00 p.m. 

Other than those children the Plaintiff's other family is located in the Philadelphia area 

and she indicated that they had only had contact with (::j.a.,S. on three occasions, once when they 

came here and twice when the child was taken to the Philadelphia area. 

The Plaintiff indicates that those children do interact positively with 6{. D, S. when they are 

in the area. 

The Plaintiff was formerly married and has two adult children, a son twenty-two years 

old who is about ready to graduate from college and a daughter nineteen years old who is in the 

Navy. 

The Plaintiff has worked at Walmart as a receiving associate for almost seventeen years 

and her typical schedule is from 5:00 a.m. to 2:00 p.m. Monday through Friday and sometimes 

she works on Saturday which may extend to 2:00 p.m. or may end earlier. She gets four weeks 

of vacation each year. 

The Plaintiff then apparently moved tc Chestnut Street in Meadville where she 

currently resides. 

The parties had resided together in the City of Meadville which was a 

home that the Defendant owned for many years prior to the Plaintiff and Defendant getting 

together. 

The parties resided together until latter August of 2013 when the Defendant, apparently 

concerned about the Plaintiff drinking alcoholic beverages too much and not being part of the 

family with the Defendant and the three children, told the Plaintiff to get out of the residence 

which she did within a couple of days. 

After 6,0, 5. was born to the Defendant as her biological child while the parties were 

partners and Plaintiff was present in the delivery room, in 2011 the child was adopted by the 

Plaintiff. 

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3 

It appears that she does well taking care of ·q,0/:,1 and the other two children and another 

issue she raises is that she hates to separate '61, ~,{>.from the other two children to go to spend 

time with the Plaintiff. i 

It was very clear that she is concerned that the Plaintiff drinks alcoholic beverages to 

excess when she is with the child because she felt the Plaintiff did so when they were together, 

but frankly there was limited evidence to substantiate that. 

She has a Master's Degree in counseling and a Bachelor's Degree in psychology. 

The Defendant testified that her home has four bedrooms and two and a half baths with a 

kitchen, living room, dining room and is fenced in the back so that there is a place for the child to 

play. 

The Plaintiff called various witnesses that indicated that she is a good mother and 

interacts with E{,O, S. and ~.cJ, _s. seems to be happy with the Plaintiff. 

Ultimately, the Plaintiff was permitted to take the child from the Defendant's home and 

the exchanges have gone fairly well except there is often a delay when she picks up the child but 

she has never been allowed to have the child overnight. 

She further testified she exercised every possible period of visitation with the child she 

could except on one occasion when she was sick and another when she was out of town but the 

visits were strained and particularly because at least on one occasion the Defendant's mother was 

nasty to her and often it was the Defendant's mother that was there for the visits. 

The Plaintiff testified that before the parties began following the schedule they have been 

following, the first three weeks that they separated she would be able to call and see the child 

frequently but only for an hour or an hour and a half at a time and was never allowed to take the 

child out of the home of the Defendant. 

She testified that normally the Defendant would take the child to the Defendant's 

mother's residence in Fairview on Sundays and that at first she went but then quit going because 

that was her only day to do chores around the house. 

She testified the normal routine for the child was to give her dinner and then prior to 

getting her to bed by 8:00 p.m. she would have some playtime and perhaps tell her stories. 

The Plaintiff further stated that the Defendant usually took the child to the doctor because 

the Plaintiff was working during those hours. 

The Plaintiff testified that she spent time with the child playing inside and outside and 

going for walks. She also indicated that she did most of the cooking and cleaning while the 

parties were together. 

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4 

Based on these facts and more facts we may discuss in considering the seventeen factors 

we must consider pursuant to 23 Pa.C.S.A.§5328(a), we will now determine what is in the best 

interest of the child. 

Even more alarming is that the Defendant's mother who spends a lot of time with the 

child really testified in a way that would suggest that she could well harm the relationship the 

child has with the Plaintiff. She has obviously not accepted the nature of the relationship of the 

Plaintiff and Defendant when they were together and the fact the Plaintiff has adopted the child 

to the extent she testified the child cannot have two mothers and that she considers the Plaintiff 

to be the child's stepmother. 

The one thing that is abundantly clear in this case, is that the Defendant has taken total 

control of this child and has dictated what contact the Plaintiff will have with the child and what 

information will be given to the Plaintiff. 

Interestingly, the Defendant indicated that the child calls her mom or mommy and calls 

the Plaintiff either S.,: or another name that apparently includes S. in it. 

There have been some problems with the child not wanting to go to the Plaintiff for 

periods of temporary physical custody according to the Defendant and she indicated that while 

initially she tried to encourage the child to do so, ultimately she was telling the child that the 

child needed to talk to the Plaintiff to work those issues out. 

The Defendant had witnesses also testify that her relationship with the child is good and 

that they do activities together of various kinds. 

The child, when in her custody, does have contact with various members of her family 

and apparently goes on vacation with members of the Defendant's family in the summer for 

typically one week and this year apparently for two weeks. 

She testified that essentially she is now scheduling all the medical appointments and was 

making decisions such as which ·preschool the child should attend until the time the mediation 

occurred and the Order was entered. She indicates she now follows the Order. 

She indicated that she does various activities with the children, including outings to Erie 

to various free activities. 

She indicates that she takes care of the children when she is not working and that her 

mother has a room in her residence and comes down from Fairview to take care of the children 

when she is not available because of work. 

Additionally, the Defendant indicated that she felt(:\,o,S. was too young to have 

overnights with the Plaintiff. 

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5 

To the extent the Defendant indicates that when they were initially together the Plaintiff 

didn't want any more children because she had raised two children, obviously she does very 

much want to spend time with this child and she must be permitted to do so. 

We next consider the need for stability and continuity in the child's education, family life 

and community life. Clearly, the child has thatwithin the home of the Defendant because it has 

been established for her. The problem we see is there has been reference to the child's family 

being that which she has with the Defendant and that's not proper. The child has family but the 

child has two parents who both are entitled to custodial rights. Certainly the child can continue 

to have stability in the Defendant's household but that doesn't mean she can't also as part of that 

stability have a consistent and growing relationship with the Plaintiff. 

We next consider factor three which is the parental duties performed by each party on 

behalf of the child. It appears that both parties performed parental duties when they were 

together but obviously, since the Plaintiff has been pretty much excluded from much contact 

with this child, the Defendant probably has performed more parental duties and that factor 

slightly favors the Defendant. 

Factor 2.1 regards the consideration of whether there has been any child abuse and 

involvement with protective services and both parties indicated there has not and we have no 

evidence to indicate otherwise. 

The next factor we consider is 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. That does not appear to be a factor in this case. 

The first factor we must consider is which party is more likely to encourage and permit 

frequent and continuing contact between the child and another party. That factor very clearly 

favors the Plaintiff. We frankly believe that she is entitled to more custodial time with the child 

than she is even seeking and we have every reason to believe that she will cooperate with the 

Defendant. On the other hand, based on the fact the Defendant, and perhaps her family, really 

think that since she is the biological mother of this child she controls things since she has been 

very restrictive since she has in fact controlled the relationship between the child and the 

Plaintiff, we would not expect her to be particularly cooperative. There have been some times 

when the parties have apparently discussed custody changes which were made to benefit the 

Plaintiff, but that was only because the Defendant was working and it is very clear that she wants 

the child to spend the least amount of time with the Plaintiff as possible. 

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6 

The next factor we consider is which party is more likely to attend to the daily physical, 

emotional, developmental, educational and special needs of the child and we feel that factor 

favors neither party. 

The ninth factor we consider is which party is more likely to maintain a loving, stable, 

consistent and nurturing relationship with the child adequate for the child's emotional needs and 

while again we are concerned about the control the Defendant wants in this case, we do not 

believe that factor favors either party. 

However, at this time we do not believe that factor favors either party. 

The eighth factor we consider is 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. In that regard there is no direct evidence that has occurred but 

again, we suggest that the Defendant putting the child in a position that the child is supposed to 

talk to the Plaintiff if she does not want to go to the Plaintiffs house and the fact that the 

Defendant appears to be all right with the child calling the Plaintiff "Sue" borders on concerns 

about the Defendant trying to tum the child against the Plaintiff. 

Next we consider the well-reason preference of the child based on the child's maturity 

and judgment and obviously that is not a factor because of the child's age. To the extent the 

Defendant has tried to make that a factor by putting this four year old child in a position where 

she is supposed to talk to the Plaintiff about whether she wants to visit with the Plaintiff or not, 

the Defendant should cease putting the child in that position. It appears that in any event, the 

child does quite well when she is in the Plaintiff's care regardless of what may occur in the house 

of the Defendant before the child leaves to go with the Plaintiff. Also, we note in passing that 

we do not conclude that the Plaintiff is not properly feeding the child even though the Defendant 

and her mother insinuate that the Plaintiff has not properly fed the child since the child wants to 

eat when offered the opportunity at the Defendant's home upon returning from the Plaintiff's 

custody. 

The sixth factor we consider is the child's sibling relationships. That factor slightly 

favors the Defendant because the child has a relationship with her younger twin siblings. 

However, the child does have a relationship with her adult half-brother and half-sister when they 

are in the area and can spend time with the child. 

Next we consider the availability of extended family and it is clear that while the Plaintiff 

has some extended family who interacts with the child, this factor favors the Defendant. 

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7 

ACCORDINGLY, we will enter the following Order: 

Based on our consideration of the various factors and the fact the Plaintiff is only asking 

for limited contact with the child, we find it is in the best interest ofthei~1 \4_ frt +\\c. D('.ft~:t hi l,,wt~ 

primary physical custody with the Plaintiff to have substantially more physical custody than she 

has enjoyed since August of 2013. 

The final factor we consider is any other relevant factor and we do not find there is any. 

The next factor we consider is the mental and physical conditions of a party or member of 

a party's household. We will not find that factor favors either party although again, we are very 

concerned about the contact of the Defendant's mother with child when she is residing in the 

home of the Defendant caring for the child while the Defendant works. 

The next factor we consider the history of drug or alcohol abuse of a party or member of 

a party's household. There is evidence that both parties drank intoxicating beverages when they 

were together and the Plaintiff apparently still drinks intoxicating beverages. There is no 

indication, despite the innuendo, that either party put the child at any risk because of drinking 

alcoholic beverages. There is some evidence presented by the Defendant that the Plaintiff would 

not care for the child at a point she had too much to drink but we are satisfied that may well have 

been because of the dynamics of their relationship between the parties when they were together 

and we have no reason to believe that the Plaintiff will not put the child ahead of drinking 

alcoholic beverages. We find that factor favors neither party. 

The thirteenth factor we consider is 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. We believe this factor slightly favors the Plaintiff since it is clear the Defendant is 

only going to do, for the most part, what she thinks she has to do under a court order and clearly 

only wants to have minimal contact with the Plaintiff even with regard to the child. 

The twelfth factor we consider is the availability to care for the child or make appropriate 

childcare arrangements. Both of these parties are able to do that either through their own care or 

through appropriate arrangements although again, while we will not find this factor favors either 

party, we are concerned about the Defendant's mother's substantial contact with this child based 

on her attitude and thoughts. 

The eleventh factor we consider is the proximity of the residences of the parties and they 

are within a few blocks from each other so that is not a factor. 

Circulated 10/09/2015 10:29 AM