# K.T. v. H.T. > Superior Court of Pennsylvania · October 19, 2015 URL: https://www.frixlaw.com/law-library/cases/3132490 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** October 19, 2015 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3132490 ## How later opinions describe it (automated extraction) - stating that, unless sanctions are imposed, an order declaring a party in contempt is interlocutory, and that a threat to impose sanctions in the future is neither final nor appealable - holding that, if the custody - 12 - J-A19045-15 evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply - stating that, if the certified record supports a trial court’s conclusions in a custody matter, the trial court is not required to accept an expert’s conclusions and recommendations - stating that “where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.” ## Opinion text J-A19045-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 K.T., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. H.T., Appellee No. 454 WDA 2015 Appeal from the Order entered February 27, 2015, in the Court of Common Pleas of Lawrence County, Civil Division, at No. 11297/06 CA K.T., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. H.T., Appellee No. 462 WDA 2015 Appeal from the Order entered February 27, 2015, in the Court of Common Pleas of Lawrence County, Civil Division, at No. 11297/06 CA BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 19, 2015 In these consolidated appeals, K.T. (“Father”) appeals from the Order entered on February 27, 2015 (hereinafter “Custody Order”) which (1) denied the competing Petitions for modification of the existing child custody Order entered on October 3, 2013 (“the prior custody Order”), filed by Father and H.T. (“Mother”), regarding their minor child, C.T. (“Child” or “C.”) J-A19045-15 (born in February 2001); and (2) granted Mother special relief relating to enforcement of the prior custody Order. The Custody Order continued to award Mother sole legal, and primary physical, custody of Child, and granted Father partial physical custody. The Order also included an enforcement provision requiring law enforcement officials and child protective services agents/employees to return Child to Mother, rather than Father or anyone acting on behalf of Father, if Child removed himself from Mother’s physical custody (discussed in detail below). Father also appeals from a separate Order entered on February 27, 2015, which granted Mother’s Petition for contempt concerning Father’s violation of the prior custody Order (hereinafter “Contempt Order”). We affirm the Custody Order, and quash the appeal from the Contempt Order as interlocutory. The factual and procedural background of this matter is exhaustively set forth in the trial court’s 91-page Pa.R.A.P. 1925(a) Opinion, which we adopt and incorporate herein by reference. See Trial Court Opinion, 2/27/15, at 1-62. In the interest of conciseness and readability, we will briefly set forth the relevant facts and procedural history herein. The trial court summarized the background of this case, and the parties’ positions, as follows: The issues in this case revolve around the fact that [Child] refuses to be in the custody of Mother and[,] in fact[,] has not been in the physical custody of Mother since December [] 2013, despite the terms of the [prior] custody [O]rder. Mother claims that this circumstance [exists] because of the contemptuous conduct of Father[,] who has engaged in a pattern of parental alienation, turning [Child] against Mother[. W]hereas[] Father -2- J-A19045-15 contends that this circumstance is brought about by the manner in which Mother treats [Child], causing him to be in fear of her[,] and [Mother’s] refusing to engage in any meaningful effort to keep [Child] in her custody. Id. at 2. The parties have engaged in contentious and continuous litigation since their separation in 2004, when Child was only three years-old. Before the entry of the prior custody Order, the parties shared physical and legal custody of Child, pursuant to a consent custody Order executed in March 2011. In the prior custody Order, entered on October 3, 2013, the trial court awarded sole legal and primary physical custody of Child to Mother, who is a dietician, and resides in Neshannock Township, Lawrence County, Pennsylvania. The prior custody Order also denied Father’s Petition to relocate Child from Lawrence County to Westmoreland County.1 Father is a physician, employed as a professor at the Lake Erie College of Osteopathic Medicine. Father moved to Westmoreland County in July 2013, and presently resides there.2 Father’s long-time paramour, M.E.S., has a residence in Neshannock Township, Lawrence County, located nearby 1 Father appealed the prior custody Order. This Court affirmed, after which the Supreme Court of Pennsylvania denied allowance of appeal. K.T. v. H.T., 104 A.3d 67 (Pa. Super. 2014) (unpublished memorandum), appeal denied, 95 A.3d 278 (Pa. 2014). 2 Before the entry of the prior custody Order, the parties had lived in close proximity to one another in Neshannock Township, Lawrence County, and within the same school district. -3- J-A19045-15 Mother’s residence, which we will hereinafter refer to as the “Fireside residence” or “Fireside.”3 Despite the dictates of the prior custody Order providing Mother with primary physical custody, Child began to refuse to stay at Mother’s residence, approximately one month after the entry of that Order. Trial Court Opinion, 2/27/15, at 7. Specifically, the trial court explained that [Child] and Father began a procedure whereby Father drops [Child] off at Mother’s house[. A]t the custody exchange time, [Child] will either knock on Mother’s door and tell her that he is not staying or simply walk through the backyards, and in either case, proceed directly to the [Fireside residence] of … [M.E.S.] Father will then email Mother[,] telling her that [Child] is at Fireside. Id. In its Opinion, the trial court detailed several incidents involving Child’s refusal to stay with Mother during her scheduled custodial periods. The first of those incidents occurred on November 7, 2013, when Child left Mother’s home, wearing only pajamas, at approximately 9:00 p.m., after which time Mother called 911 and went to the police station. Id. at 8. At the police station, Mother learned that M.E.S. had already picked up Child. Id. Child did not return to Mother’s home. Id. On December 16, 2013, Mother held a birthday party at her home, after which Child spent the night at Mother’s home. Id. The following 3 Fireside is located approximately two-tenths of a mile from Mother’s residence. -4- J-A19045-15 morning, Mother transported Child to school. Id. Child told her that he would return to her home after school, but he did not do so. Id. Mother next saw Child on January 1, 2014, when Father dropped him off at Mother’s residence at 8:00 p.m., whereupon Child immediately ran away. Id. Mother and the maternal grandmother followed Child in Mother’s car, and eventually caught up with him. Id. Child entered the back seat of the car, but, as the car pulled into Mother’s driveway, Child jumped out and began running away. Id. Mother and the maternal grandmother followed Child again. Id. Child ran to the Fireside residence, and went inside. Id. at 8-9. Child thereafter came back out and got into the car with Mother and the maternal grandmother, and they drove away, with the intention of heading to the home of a female friend of Mother. Id. at 9. The trial court explained what ensued as follows: At an intersection, Mother could hear [Child’s] seatbelt unclick. Fearing that [Child] was going to jump out of the car again, Mother directed the maternal grandmother to proceed. Mother turned around to grab [Child’s] leg. [Child] opened the door and jumped out of the car. Mother’s finger got stuck in the seam of his pants and ripped the bottom of his pants as he took off running. Mother called 911 and tried to find [Child]. At the direction of the police, Mother returned to her residence and waited. The police eventually notified Mother that [Child] was with Father. This incident resulted in the filing of a [P]etition for protection from abuse [“PFA Petition”] by Father[,] on behalf of [Child,] against Mother in the Westmoreland County Court of Common Pleas. After hearings before the Honorable Megan Bilik-DeFazio, Judge Bilik-DeFazio … dismissed the [PFA Petition]. Father filed a [P]etition for reconsideration[,] … -5- J-A19045-15 [which] was denied.[FN 1] Father appealed the PFA denial to the Superior Court, which affirmed the decision of the trial court.[FN 2] ___________________________________________________ [FN 1] In denying reconsideration, Judge Bilik-DeFazio referred to the case as one of the most tragic custody cases she had ever seen and one of the most tragic cases of parental alienation. The judge found [Child] to be very deliberate, that he knows what he is doing and that he is manipulating. [FN 2] In the court’s Pa.R.A.P. 1925(a) Opinion, the court found that Mother’s testimony was credible, that Mother had never threatened [Child], that Mother’s explanation of what occurred on January 1, 2014 was reasonable[,] and that the testimony of [Child] that Mother had threatened to kill him[,] and that he was “fearful” of Mother, was not credible. In finding that [Child] lacked credibility regarding his assertions that [] [M]other has threatened him and physically abused him, the court noted that [] [C]hild’s testimony was deliberate and calculated; that he did not show emotion under the circumstances[;] and that[,] by his conduct and demeanor, [Child] was operating under a clear agenda to manipulate the [prior] custody [O]rder. The court also commented on a cell phone video which shows that [Child] is giving [] [M]other a hard time, [and] that he is talking back to [] [M]other and being difficult and unreasonable, but that Mother exercised a great deal of patience in dealing with [Child] and his unacceptable behavior in that situation. Id. (footnotes in original). The trial court additionally stated as follows: [Child] has not been with [] [M]other since the incident of January 1, 2014. In the spring of 2014, Mother attended [Child’s] band concert at Neshannock School and observed the concert, but [Child] would not spend any time with her at that event. Meanwhile, during this entire period of time, Father and [Child] continued the procedure whereby Father will drop [Child] off at Mother’s residence but [Child] will not stay[,] and will proceed to the Fireside residence, where Father will pick up [] [C]hild. [Child] will videotape these events. He himself testified that he videotapes his interaction with [] [M]other for use of the videos in court. -6- J-A19045-15 In connection with the proceedings before the Westmoreland County Court of Common Pleas on the PFA Petition that Father brought on behalf of [Child], Father arrived at the Westmoreland County Courthouse on January 3, 2014. In passing through security, Father was asked if he had any weapons. Father denied having any weapons. Security discovered in his briefcase a loaded Glock 9mm firearm and a folding knife with a three and three-fourth[-]inch blade in Father’s briefcase. Father was arrested and charged with Possession of a Firearm and Other Dangerous Weapon in a Court Facility pursuant to 18 Pa.C.S.A. § 913(a)(1). The disposition of the charge was that Father entered the Accelerated Rehabilitative Disposition Program for a period of six months. Father testified that he had forgotten that he had the items in his briefcase and that he generally carried a loaded firearm, [which] he had obtained from a friend who was in the scrap recycling business, for his own protection[,] as he was afraid that Mother would harm him[,] and that generally[,] he carried the loaded firearm to the efforts to [sic] effectuate custody exchanges. Id. at 10-11. In relation to the prior custody Order, the trial court stated in its Opinion as follows: In awarding primary physical custody to Mother, the [c]ourt found that Father demonstrated a desire to frustrate Mother’s relationship with [Child]. The [c]ourt also found that [Child] does want to conform to many of Father’s expectations, and that [Child’s] desire to please Father is negatively affecting his relationship with Mother. The [c]ourt noted that neither Father nor [Child] could testify to any positive attributes Mother possesses as a parent, thus indicating that [Child’s] emotional connection to Mother is being hindered in some form[, and] that [it] is having a devastating effect on his emotional security and development. The [c]ourt also noted that, although the custody evaluator, Dr. [Douglas] Darnell, made no specific findings of parental alienation, [] Dr. Darnell’s evaluation was completed prior to the fall of 2012, when [Child] began expressing his animosity towards [] [M]other[. Additionally], … when Dr. Darnell was presented with hypothetical questions regarding behaviors displayed by [Child], he testified that those behaviors -7- J-A19045-15 were consistent with behaviors exhibited by a child suffering from parental alienation. The [c]ourt also indicated that [Child’s] negative perception of Mother was irrational. The court further concluded that Father’s actions have caused Mother’s relationship with [Child] to suffer[,] and that he has enabled [Child’s] unwarranted fears and trepidations of Mother. The court also concluded, in awarding primary physical custody and sole legal custody to Mother, that if Father was awarded such custody, [Child’s] relationship with Mother would dissipate to the point of disrepair. Id. at 6-7 (footnote omitted). While Father’s appeal from the prior custody Order was pending, the parties filed several Petitions and Motions, which are more fully described in the trial court’s Opinion; we adopt the trial court’s recitation herein. See id. at 11-15. Most relevant to the instant appeal, on September 5, 2014, Mother filed a Petition for contempt (“September Petition for contempt”), asserting that Father had violated the prior consent Order by enrolling Child in the public school district that serviced the area of Father’s residence in Westmoreland County, without Mother’s consent or approval by the trial court. In November 2014, and January 2015, the trial court held a custody trial with regard to the parties’ competing Petitions for modification of the prior custody [O]rder, and Mother’s Petitions for special relief and contempt in relation to that Order. On February 27, 2015, the trial court entered the Custody Order, which dismissed the parties’ Petitions for modification of custody, and granted Mother special relief relating to enforcement of a particular provision of the Custody Order: paragraph 16. Paragraph 16 -8- J-A19045-15 provided that law enforcement and/or child protective services were to return Child to Mother, regardless of the circumstances, if he runs away from her home while in her custody.4 Also on February 27, 2015, the trial court entered the Contempt Order, which, in relevant part, granted Mother’s September Petition for contempt, based upon Father having unilaterally enrolled Child in a different school district. Mother alleged that Father’s action violated a provision in the prior custody Order providing that Mother was the sole legal custodian of Child, and therefore, entitled to make all decisions concerning his education. Notably to the instant appeal, the Contempt Order did not impose any sanctions on Father. Father timely filed Notices of Appeal from the Custody Order and Contempt Order, along with two Concise Statements of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In March 2015, 4 Paragraph 16 specifically provides as follows: 16. During the time that … Mother … has the right of physical custody pursuant to this Order, [] [C]hild shall not be permitted to be at the residence designated as … Fireside … without Mother’s consent nor shall [Child] be permitted for any reason to be placed in the custody or control of … Father … or [M.E.S.] without Mother’s consent, and no law enforcement officer, employee or agent of Lawrence County Child and Youth Services, nor any other agency or authority, shall place[] [C]hild in the custody or control of Father, during Mother’s scheduled primary custody period, with the further direction that if for any reason [] [C]hild removes himself from Mother’s custody, he is to be returned to Mother and not Father or anyone acting on Father’s behalf. Custody Order, 2/17/15, ¶ 16. -9- J-A19045-15 Father filed in this Court a Motion to stay the Custody Order. Although we entered an Order temporarily granting the stay, on April 1, 2015, we entered an Order lifting the temporary stay and denying Father’s Motion, directing Father to return Child to Mother two days later, at her residence. Approximately one week later, Father filed a second Motion to stay the Custody Order, which this Court denied.5 In his brief on appeal, Father presents the following issues for our review: I. Whether the trial court committed an abuse of discretion in awarding sole legal and primary physical custody to Mother[,] when the facts of record demonstrated that there was a complete breakdown of the relationship between Mother and [C]hild[,] and[,] for the past 14 months, that Mother had no contact with [] [C]hild during this time, and despite having sole legal custody[,] repeatedly failed to act in [] [C]hild’s best interest in meeting [C]hild’s medical, dental, mental health and educational needs? II. Whether the trial court committed an abuse of discretion in awarding primary physical custody to Mother[,] when the court engaged in no analysis [concerning] the effect of such an [award] on [] [C]hild as the circumstances existed at the time of trial, [which] uprooted [] [C]hild from school friends and his current life[,] and whether such an [award] was in [] [C]hild’s best interest under the factors enumerated in 23 Pa.C.S. [§] 5328[,] and when Mother presented no current evidence to the [trial c]ourt as to her current ability to parent [] [C]hild as required under M.E.V. v. F.P.W., 100 A.3d 670 (Pa. Super. 2014)? 5 At oral argument, on July 8, 2015, Father’s counsel informed this panel that Child was placed in a foster care home, after having refused to return to Mother’s custody. Father additionally brought this matter to our attention via a post-submission Application for Supplement to the Record, which we denied. - 10 - J-A19045-15 III. Whether the trial court committed an abuse of discretion in awarding primary physical and sole legal custody to Mother by failing to properly consider and/or completely disregard the uncontroverted testimony and opinion[s] of the [c]ourt- appointed experts[,] and failing to mandate reunification counseling[,] as recommended by the [trial c]ourt’s experts? IV. Whether the trial court committed an abuse of discretion when it found that Father had alienated [] [C]hild from Mother[,] when there was no evidence presented of parental alienation[,] [] neither expert testified that they believed there was parental alienation[,] and the finding was based on pure speculation? V. Whether the trial court committed an abuse of discretion when it ordered that law enforcement and/or child protective services were to return [] [C]hild to Mother[,] regardless of the circumstances? VI. Whether the trial court committed an abuse of discretion when it found Father in contempt of the [prior custody] Order [] by enrolling [] [C]hild in school[,] as Father’s actions were not an “intentional, designed act and one without justifiable excuse.” Com. ex rel. Wright v. Hendrick, 312 A.2d 402[, 404] ([Pa.] 1973); the [prior custody] Order was not definite, clear and specific; there was no volitional violation or wrongful intent; Mother failed to provide for schooling pursuant to 24 P.S. [§] 13- 1327[,] the Compulsory School Attendance Law; when Father was required to always consider [] [C]hild’s best interest, make sure that [] [C]hild continued to attend school, continue other activities beneficial to [] [C]hild’s overall growth and development[,] and exercise daily parental responsibility when [] [C]hild was in his physical custody[; and] when Mother had abdicated her parental responsibilities? Father’s Brief at 11.6 In custody cases, our standard and scope of review are follows: In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent 6 In his Concise Statements, Father set forth his issues somewhat differently. Nevertheless, we determine that he preserved the issues for our review. - 11 - J-A19045-15 evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual 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. C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted); see also Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (stating that “[a]n abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused.”) (citation omitted). Additionally, this Court has observed that [t]he discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record. Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted). As the custody trial in this matter was held in November 2014, and January 2015, the Child Custody Act (the “Act”), 23 Pa.C.S.A. §§ 5321 to 5340, is applicable. C.R.F., 45 A.3d at 445 (holding that, if the custody - 12 - J-A19045-15 evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply). With any custody case decided under the Act, the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial court may modify a custody order if it serves the best interests of the child. Id. § 5338. Section 5328(a) of the Act sets forth the various factors that a trial court must consider when ordering any form of custody (collectively referred to as “the best interest factors”). Id. § 5328(a). We will address Father’s first and second issues together, since both involve challenges to the trial court’s refusal to disturb the award of sole legal custody and primary physical custody to Mother under the prior custody Order. See Father’s Brief at 21-34. Pointing to Child’s repeated refusal to stay at Mother’s residence during her custodial periods, Father asserts that Mother and Child are estranged. Id. at 22-23. According to Father, “Mother abandoned [Child] and any parental responsibilities for his care, safety, or emotional well-being when he refused to stay with her.” Id. Father cites McDonel v. Sohn, 762 A.2d 1101 (Pa. Super. 2000), Snarski v. Krincek, 538 A.2d 1348 (Pa. Super. 1988), and Jones v. Stone, 495 A.2d 205 (Pa. Super. 1985), for the proposition that a parent’s lack of involvement and abandonment of parental duties supports a modification of custody and award of custody to another person, even to a non-parent. Father’s Brief at 27-28. - 13 - J-A19045-15 Father emphasizes that “the sole criterion in determining custody disputes is the best interest and paramount welfare of the child.” Id. at 28- 29 (quoting M.E.V., 100 A.3d at 679) (emphasis in M.E.V., citation omitted). Father points out the Court’s statement in M.E.V. that “a trial court may not merely advert to prior, manifestly outdated findings of fact in lieu of express and fully explained reconsideration of those factors in the light of any changes in the parties’ circumstances that occurred after the prior ruling and attendant explanation.” Father’s Brief at 27 (quoting M.E.V., 100 A.3d at 681). Father additionally contends that the trial court cannot “simply pay lip service” to the best interest factors in section 5328(a). Father’s Brief at 34 (citing C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013)). According to Father, the trial court’s Opinion “did not address which factor(s) weighed in favor of which party, … or how the factors affected its decision. Instead, the [t]rial [c]ourt came to the conclusion that Mother’s relationship with [Child] was paramount to his best interests[,] without reference to findings to support that conclusion.” Father’s Brief at 34. Father argues that Child’s best interests are served by awarding primary physical custody to him, as he is the only parent who has provided for Child’s physical, intellectual, moral, and spiritual well-being during the approximately fourteen-month period prior to the entry of the Custody Order. Id. at 36. Pointing to this period of separation, Father contends that “Mother offered not one scintilla of evidence … [as to] how she would keep Child in her care should Father[]” not be granted relief. Id. Father further - 14 - J-A19045-15 asserts that the trial court abused its discretion by failing to consider the effect on Child of his immediate return to Mother and his removal from the Hempfield School District (i.e., where Father had enrolled Child without Mother’s consent), absent the provision of immediate therapeutic intervention. Id. In its Opinion, the trial court discussed the law concerning section 5328(a), set forth the best interest factors, and provided a thorough analysis of each of the factors. See Trial Court Opinion, 2/27/15, at 62-80.7, 8 The trial court’s analysis is sound and supported by the record, and we therefore adopt and incorporate it herein for purposes of Father’s first and second issues. See id. After addressing the law and the best interest factors, the trial court then stated in its Opinion as follows: Although extensive proceedings have been held on the [parties’] competing requests for modification, and for special relief and findings of contempt, essentially nothing has changed subsequent to the proceedings that resulted in the … [prior c]ustody Order[,] except that [Child] adamantly refuses to be with [] [M]other. [Child’s] recalcitrance to being with [] [M]other was recognized by the trial judge in the prior proceedings. In the October [3], 2013 Opinion, the [trial] court noted that Father encourages [Child’s] unreasonable 7 Effective January 1, 2014, section 5328 was amended to include 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). Although applicable at the time of the custody trial in the present matter, there was no evidence that would have required the trial court’s consideration of this factor. 8 We note that the trial court’s discussion of factor 5328(a)(8) is not preceded by a heading, but appears to begin on page 71. - 15 - J-A19045-15 apprehension regarding Mother (Page 25); that Father has demonstrated a desire to frustrate Mother’s relationship with [Child] (Page 29); that if Father is awarded primary physical and sole legal custody, [Child’s] relationship with Mother will dissipate to the point of disrepair (Page 33); that the foregoing analysis finds fault in Father for enabling [Child’s] unwarranted fears and trepidations of Mother; the [c]ourt believes that Father’s actions have caused Mother’s relationship with [Child] to suffer, but the [c]ourt does not believe that Father’s actions should be characterized as alienating (Page 33). Although the trial court in the prior proceedings stops short of characterizing Father’s actions as alienating, the court did attribute [Child’s] unfounded perceptions of [] Mother to be caused by Father’s actions[,] and [found] that [Child’s] thoughts about Mother paralleled those of Father.[FN 3] The court’s prediction proved to be true, that if [Child] were left in the custody of Father, the relationship with [Child] and Mother would only deteriorate. However, the circumstance that allowed Father to have the custody was not brought about by court order, but by the fact that [Child] simply refused to be with Mother[.] ___________________________________________________ [FN 3] More recently, Mother filed an injunction proceeding against [M.E.S.,] seeking to enjoin her from interfering in the custody matters. [H.T. v. M.E.S.], No. 1091 of 2014, C.A. The same trial judge [who] issued the … Custody Order in this case denied injunctive relief, but in a Pa.R.[A.]P. 1925(a) Opinion[,] found that the “root of [] [C]hild’s behavior seems to have been derived from [Father].” (Pa.R.A.P. 1925(a) Opinion dated February 4, 2015, page 10[)]. Trial Court Opinion, 2/27/15, at 81-82 (footnote in original). Our review of the record demonstrates that the trial court thoroughly considered each of the best interest factors, and its Custody Order sought to render a custody award in Child’s best interests. Contrary to Father’s assertion, the record reflects that the trial court did not merely rely on outdated findings. Rather, the court expressly and fully explained its consideration of the best interest factors, in light of the parties’ actions, as - 16 - J-A19045-15 concerns Child’s best interests, following entry of the prior custody Order. The trial court determined that Mother had not abandoned Child, but, instead, Child, with Father’s assistance, had acted to obviate the prior custody Order and deprive Mother of her court-awarded custody. Further, the trial court found that, under the circumstances, Child’s best interests are served by maintaining the prior custody Order, awarding sole legal custody and primary physical custody to Mother, and dismissing the competing modification Petitions. We discern no abuse of discretion or error of law in the trial court’s analysis, and its findings are supported by the record. Accordingly, we affirm based on the trial court’s Opinion regarding Father’s first two issues, see Trial Court Opinion, 2/27/15, at 62-82, and conclude that these issues lack merit. Next, we address Father’s third and fourth issues together. In his third issue, Father contends that the trial court abused its discretion by (1) awarding sole legal custody and primary physical custody to Mother in disregarding, or failing to adequately consider, the uncontroverted testimony and opinions of the court-appointed experts; and (2) failing to mandate reunification counseling, as recommended by these experts. See Father’s Brief at 39-42. Father alleges that Dr. Martin Myers (“Dr. Myers”), the court-appointed psychologist who evaluated Child, testified that Child is flourishing in Father’s custody, and recommended that Mother and Child engage in counseling, and that Mother and Father each participate in counseling. Id. at 37. Father states that Dr. Bruce Chambers (“Dr. - 17 - J-A19045-15 Chambers”), the court-appointed custody evaluator who performed an updated custody evaluation, testified that it would be problematic to return Child to Mother’s custody without therapeutic intervention. Id. at 40. Father argues that the trial court’s Order directing the immediate return of Child to Mother is against the weight of the evidence and against the uncontroverted testimony of these two experts. Id. at 41. According to Father, the trial court improperly rejected Dr. Chambers’s testimony. Id. at 41-42. In support of this argument, Father relies on Murphey v. Hatala, 504 A.2d 917 (Pa. Super. 1986), for the proposition that it is an abuse of discretion for the trial court to accept as unpersuasive, and to totally discount, uncontradicted expert testimony. Father’s Brief at 41. In his fourth issue, Father argues that the trial court abused its discretion when it found that he had alienated Child from Mother, where there was no evidence of parental alienation and neither Dr. Myers nor Dr. Chambers had opined that there was parental alienation. Id. at 46-48. According to Father, the trial court’s finding of parental alienation was based on pure speculation, and Mother’s mere allegations. Id. at 46-47. Additionally, Father asserts that “[n]early all of the evidence of record supports that it was Mother’s actions, not Father’s, that were estranging her from [Child]. Particularly relevant was Mother’s complete rejection of [Child] for a period of over 14 months, a fact the trial court summarily ignores in its Opinion.” Id. at 47. - 18 - J-A19045-15 In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), this Court held that a trial court may not simply dismiss uncontradicted expert testimony unless the court’s independent determination is supported by the certified record. Id. at 19-20. Although a trial court is not bound by the custody evaluator’s conclusions, it must actually consider the expert’s analysis. Id. at 20. The M.A.T. Court held that “[s]o long as the trial court’s conclusions are founded in the record, the lower court was not obligated to accept the conclusions of the experts.” Id. (citation omitted); see also King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (stating that, if the certified record supports a trial court’s conclusions in a custody matter, the trial court is not required to accept an expert’s conclusions and recommendations). In its Opinion, the trial court provided a detailed explanation for its rejection of the expert testimony of Drs. Chambers and Myers, as concerns section 5328(a)(8) of the Act (i.e., the best interest factor pertaining to parental alienation), and set forth ample evidence in the certified record supporting the court’s determination that Father had engaged in alienation. See Trial Court Opinion, 2/27/15, at 71-77, 83-86. Since the trial court’s recitation of the evidence, and the court’s determinations, are sound and supported by the record, we incorporate them herein with regard to Father’s third and fourth issues. See id.; see also M.A.T., 989 A.2d at 19-20. We affirm on this basis in rejecting Father’s third and fourth issues, as we conclude that the trial court properly exercised its discretion in finding that - 19 - J-A19045-15 Father engaged in parental alienation, and in not following the custody experts’ recommendations. See Trial Court Opinion, 2/27/15, at 71-77, 83- 86; see also King, 889 A.2d at 632. In Father’s fifth issue, he argues that trial court abused its discretion when it directed, in paragraph 16 of the Custody Order, that law enforcement and/or child protective services must return Child to Mother if he runs away from her home while in her custody. See Father’s Brief at 42- 46. Father posits that, if Child refuses to stay with Mother, the effect of the provision is essentially an adjudication of Child as dependent, since it prohibits Child from being placed in Father’s custody. Id. at 42-43. Father argues that the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. (governing the adjudication and disposition of delinquent and dependent children), does not provide for a restriction on the placement of a dependent child prior to an adjudication of dependency. Father’s Brief at 44. According to Father, paragraph 16 (1) excuses Lawrence County Children and Youth Services (“CYS”) from meeting its burden to establish Child’s dependency under the Juvenile Act, id. at 42-43; (2) violates Father’s due process rights, id. at 43; and (3) violates the statutory mandate set forth in section 6301 of the Juvenile Act, 42 Pa.C.S.A. § 6301(b)(1), requiring the preservation of family unity whenever possible. Father’s Brief at 45. Finally, Father maintains that the trial court has scheduled a dependency hearing concerning Child, who is still in placement. Id. - 20 - J-A19045-15 Our review of the record reveals that trial court created paragraph 16 of the Custody Order in response to Mother’s request for special relief for enforcement of the prior custody Order. See Trial Court Opinion, 2/27/15, at 81. The prior custody Order had granted Mother primary physical custody, but Child was obviating that Order by running away from Mother’s residence. In light of Child’s repeated refusal to see Mother,9 the trial court determined that this enforcement provision was necessary to ensure that the award of primary physical custody to Mother was enforced. See id. at 82 (stating that “the circumstance that allowed Father to have the custody was not brought about by court order, but by the fact that [Child] simply refused to be with Mother[. T]hat circumstance has been allowed to exist without being specifically addressed by the court relative to the aspect of enforcement of the [prior custody] Order.”). We determine that the trial court’s analysis supports its decision to grant Mother’s request for special relief for enforcement of the prior custody Order. Moreover, as support for his argument that paragraph 16 is inappropriate for a custody order, Father relies generally on the Juvenile Act and case law under its statutory provisions. However, paragraph 16 does not refer to the Juvenile Act, nor does this Court have an appeal before it under the Juvenile Act. Father asks this Court rule on a matter raised in his 9 In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth its analysis and legal support involving the refusal of a child to visit his parent, which we incorporate herein by reference. See Trial Court Opinion, 2/27/15, at 82- 83. - 21 - J-A19045-15 second Motion for stay, which we denied until the matters raised therein are addressed by the trial court. In effect, Father would like this Court to prematurely rule on dependency proceedings that are before the trial court; we may not do so. See Pa.R.A.P. 302(a). Accordingly, we discern no abuse of discretion by the trial court’s entering paragraph 16 in the Custody Order. Father is therefore not entitled to relief on his fifth issue.10 Finally, Father argues that the trial court abused its discretion when it found him in contempt of paragraph 2 of the prior custody Order, which granted Mother sole legal custody of Child, and the authority to, inter alia, make major decisions concerning Child’s education. See Father’s Brief at 48-53. Concerning Father’s unilateral enrollment of Child in the Hempfield School District, prior to the commencement of the 2014-2015 school year, Father asserts that “[b]y the Fall of 2014, Mother had not taken care of [Child], nor acted as [Child’s] custodial parent,” and “Mother made no efforts for appropriate schooling or enrollment for [Child], since he was not staying in her house.” Id. at 48, 49. It is well-established that “each court is the exclusive judge of contempts against its process.” G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013) (citation omitted). Additionally, “[t]his Court must place great 10 We additionally observe that there is no information in the certified record regarding Child’s allegedly pending juvenile adjudication and disposition, and/or his placement. See Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en banc) (stating that an appellate court is limited to considering only the materials in the certified record when resolving an issue). - 22 - J-A19045-15 reliance on the sound discretion of the trial judge when reviewing an order of contempt[,]” and we will not disturb a trial court’s findings on a contempt petition absent a clear abuse of discretion. Id. To sustain a finding of civil contempt, the complainant must prove certain distinct elements by a preponderance of the evidence: (1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) that the act constituting the contemnor’s violation was volitional; and (3) that the contemnor acted with wrongful intent. P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012) (citation omitted). Here, the trial court found that Father’s enrollment of Child in the Hempfield School District, violated paragraph 2 of the prior custody Order. Trial Court Opinion, 2/27/15, at 89-90. The trial court also found that Father had acted without the approval of the court or the consent of Mother, who had sole legal custody. Id. Additionally, the court determined that Father had acted intentionally and willfully, pointing out the Hempfield School District enrollment form completed by Father, wherein he stated that he had custody of Child. Id. at 90. The trial court, therefore, granted Mother’s September Petition for contempt. Id. at 90-91. However, the court deferred the imposition of sanctions, pending the opportunity for Father to purge himself of the contempt. The Contempt Order, at paragraph 5, provides the following purge condition: 5. [Father] shall purge himself of contempt by strictly complying with all provisions of the [C]ustody [O]rder entered contemporaneously with this Order and any subsequent orders in this case. [Father] shall be deemed to have purged himself of - 23 - J-A19045-15 contempt if he remains in compliance for a period of (6) months from the date of this Order. Trial Court Contempt Order, 2/27/15, ¶ 5. We conclude that Father’s appeal from the Contempt Order is interlocutory, as the Order imposes no sanctions on him. See Genovese v. Genovese, 550 A.2d 1021, 1022 (Pa. Super. 1988) (stating that, unless sanctions are imposed, an order declaring a party in contempt is interlocutory, and that a threat to impose sanctions in the future is neither final nor appealable). We, therefore, quash Father’s appeal from the Contempt Order at Docket No. 462 WDA 2015 as interlocutory.11, 12 Appeal at Docket No. 454 WDA 2015 affirmed; appeal at Docket No. 462 WDA 2015 quashed as interlocutory. 11 On April 2, 2015, this Court issued a Rule on Father, directing him to show cause as to why this appeal should not be quashed as interlocutory. Father’s counsel responded by claiming that the trial court used the contempt finding in its custody ruling in relation to the Custody Order. On April 17, 2015, we discharged the Rule, pending a review by this panel. Upon our review, we determine that the trial court, in making its Custody Order, did not rely upon the contempt finding. Rather, the trial court considered Father’s unilateral actions in enrolling Child in the Hempfield School District, without the prior consent of Mother or the approval of the trial court. While these same actions were the basis for the trial court’s contempt finding, the contempt finding was not the basis for the court’s decision to maintain the prior custody Order in place. See Trial Court Opinion, 2/27/15, at 87-90. 12 In her brief, Mother requests the imposition of costs on Father. See Mother’s Brief at 19. However, she has not filed a motion for costs or developed the request; accordingly, this claim is waived. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that “where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.”); see also Pa.R.A.P. 2119(a). - 24 - J-A19045-15 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/19/2015 - 25 - :r- AtjO 45- IS Circulated 09/23/2015 11:13 AM K.,..,, Plaintiff IN THE COURT OF COMMON PLEAS LAWRENCE.COUNTY, PENNSYLVANIA vs. · :. NO. 11297 OF 2006, C.A. . APPEARANCES For Plaintiff: Richard B. Sandow, Esq. c. Kurt Mulzet, Esq. Stephanie T.' Anderson, Esq. Jones, ·Gregg, Creehan & Gerace, LLP 411 seventh Avenue suite 1200 · . Pittsburgh, PA 15219 · For Defendant: Ri~hard Ducote, Esq. Erica Burns, Esq. Ri~hard oucotei PC 4800 Liberty Avenue 3rd Floor Pittsburgh, PA 1522'4 OPINION MOfio, P.J. FEBRUARY 27, 2015 T-, In this custody dispute presently'before the court, (hereinafter "Mother") seeks enforcement·of the order of court dared October 1, 2013 issued by the· aonorab 1 e Thomas M. Hllllf · Piccione which granted her. so 1 e 1 ega 1 and primary phys i. ca 1 custody of the minor child, clllllll TIIIII, born February 10, ioq1, and, further, seeks modi f'i catrion .9f that· custody order by · ~~~·~·d·i-~g· ·h~·~. . :s~l·e . . p.h·y·si ·cal·. ·.·c~·s·tody. . .arid .... p. r'ovi d ;·h~r··Father· . wi th-- . S3FID closely supervised visitation, as. opposed to partial custody. JUDICIAL DISTRICT IRF!NCI!: COUNTY 11:NNSY~V ... NIA Circulated 09/23/2015 11:13 AM October 1, 2013 custody order by awarding him the sole legal and physical custody of cllllll, with ctllllllllll's further contact with Mother to be as may be advised th rough reuni fi cation counse 1 ing . . The issues in this case_revolve around the fact that '11111111 refuses to be in the custody of Mother and in fact has not been in the physical custody of Mother since December of 2013, despite the terms of. the October 1, 2013 custody order , Mother claims that this circµmstance is because of the contemptuous ali.enation, turning c- conduct.of Father who has engaged in a pattern of parental against Mother; whereas, Father in which Mother treats ·c-, contends that this circumstance i's brought about by the manner causi.ng him to be in fear of her and refusing to engage in any meaningful effort to keep r-compet~ce in schoo-l-;------·--- . . . __ . __ on January.7, 2014, Mother filed an emergency supplemental 53RO JUDICIAL DISTRICT petition for special relief adding a first person narrative of l'll!:N C:£ COUNTY NN$YLVANIA 12 Circulated 09/23/2015 11:13 AM CIIIIIIII'~ behavior asserting that it is a product of Father's manipulation and coercion and requesting that the court impose heavy monetary incentives upon Father to convi"nce him that it is in his best interest to support c-•'s relationship with Mother. The narrative recited c 's refusal to stay with his Mother, each time either walking through Mother's yard back to . Fireside, or stopping at Mother's house telling her that he was not staying and leaving and going to the Fireside residence, c recording w1th his cell phone his actions and an incident on oecembe r 8, 2013 where Mother fo11 owed ca H to Fi reside, tried to get him i nto the car with her, which he refused., with 'c r-scor-df nq her, which incident ended wi'th c staying with Father and Father's girlfriend at Fireside and police refusing to enforce the. order by retu.rni ng ca T to Mother. The narrative includes repeated incidents of ca B getting off · the bus near Mother's resi dence , wa l .king through the back _yards to Fireside, and not staying with Mother. on April 8, 2014, Mother filed a petition for contempt reciting that since entry of the October 1, 2013 order, Mother, who has primary custody of c , has only had custody of c for one overnight on December 16, 2013 and that all other ·times conner is improperly in the custody of Father or Father's girlfriend. Mother recites in this petition that Father pays Jip service to the order by dropping c off at Mother's. ·. resi'dence every other .s'unday' where, rc-c- gets-out-of-tt-le-- . . 53RD car, runs to Father's ·girlfriend's residence where Father is JUDICIA I. DISTRICT waiting for c Father p icks c up on the street behind 'IRlli:NC!l: COUN'l"V 11.NN$YI..VANIA 13 Circulated 09/23/2015 11:13 AM Mother's residence and they depart. Mother further asserts in this petition that Father blatantly undermines Mother's role as a parent and speaks of her in a derogatory, condescending and otherwise inappropriate manner in an effort to reinforce c 's unfounded beliefs about Mother. Mother also alleges in this petition that Father refuses to communicate with Mother and provide her any information about c•• on 'July 1, 2014, Father .filed a petition for modification of primary physical and legal custody reciting that c has not spent an overnight with Mother since December, 2013 and that ·the best interest of ca . I would be served by awarding Father .physf ca'l and 1 ega1 custody. · on July 28, 2014,· Mother filed an answer to the petition for modi fi cation of custody asserting that Father has acted in .~, defiance of the October 1, 2013 custody Qrder; that Father has engaged in a course of conduct designed to deliberately thwart the mother-child relationship and that awarding custody of C£J to Father would not be in his best interest. Mother also in said pleading counterclaimed for modification of the ~ustody '3 order requesting that the October )(, 2013 order be modified to limit Father to professionally supervised contact and visitation of c at his sole .cost reciting all of the allegations made in the previous petitions filed by Mother and also referencing the petition for protection from abuse proceedtnq filed by . ,;;the r ii ,.w.,.,., ••• we's"t"mo".'rei and-·· county-on~"Jamrary·-2-, -201:4-:-1:h-a-t-.-was . . based . . ., . . . 53RO ·on the January 1, 2014 incident wherein c jumped out of the JUOICIAL OISTRICT car that he was occupying with Mother and also referencing· the "'RENCH: COUNTY 'ltNNSYI..VANIA 14 Circulated 09/23/2015 11:13 AM January 3, 2014 incident wherein Father brought the loaded Glock mm firearm and folding knife in his briefcase into the Westmoreland courity court of common Pleas. on August 26, 2014, Father filed an amended petition for modification of the custody order specifically reciting that the order should be modified because Mother has not exercised any custody, legal or physical, of c since on or about December 12, 2013 and that c refusing to go to Mother's house for Mother's periods of court-ordered custody time. on.September 5, ·2014, Mother filed a petition for contempt ·reciting that c O was to begin school at Neshannock Junior ~enior High School on Augu~t 25, 2014, Neshannock being the school district that cg Shad always attended, and that Father, in direct violation of the October 1, 2013 custody order, enrol?ed cg; in the ·Hempfield school District without .any notice, ·discussion or other information to MQther, the school district being in Westmoreland county, the county· in which Father now resides. The petition further recites that Father has continued to deny or .coerce, conspire and otherwise control cg in an effort to deny Mother her primary physical custody. SUMMARY OF EVIDENCE Father was called to testify as on cross by Mother. Father testified that on January 3, 2014, he brought a loaded gun into ... the .Westmore 1 and .co.unty cou.rthouse :-Ims~-9mm-handg1:m-w-i-t.h- . ._:. ten lives rounds in it. In addition, he had a folding knife in 53FIO JUDICIAL DISTRICT his briefcase. The weapons were in his briefcase from the day WRENCIC C:OUN'l"Y •ENNSYL.VANIA 15 Circulated 09/23/2015 11:13 AM before when he had come to Lawrenc~ county. He stated that·he had these weapons in his briefcase Mother has thre~tened to kill him and c Father stated that Mother :had j~st dragged c from behind her SUV and he was fearful for his safety and for c••'' s. He acknowledged that he had these weapons to use against-Moth~r if necessary. Father carried a gun with him nearly every day when he lived in Lawrence county. Father testified that he had·forgotten he had the gun .and knife in his briefcase when he entered the Westmoreland county courthouse for the purpose of obtaining a PFA on behalf of c against Mother. Father does have a permit to carry a firearm. The gun had:been loaned to Father by a Mr. Lewis who· was fearful for Father's safety. ·Mr. Lewis felt this way because·of.information received from Father. Father still feels that he needs to protect hi~self from Mother. Father acknowledges that the current custody order of october 1, ~013 provides for cg s -to be living with Mother, althoug~ in fact c has been living with him. Fath~r · further acknowledges completing the student enrollment form for the Hempfie,.d Area school Di~trict and signing it on August 21, 2014·;n order to enroll conner in the Hempfield Area school system. Father. acknowl edqed that Mother did not aqree .for him to do this. on this form the information Father provided was ·'that c lives with him, that Ms. s-is the other ··c:a:retaker··or adul t in the home, Father's-and Ms~··· . ····- !l3RD contact. phone numbers are provided with no phone number for JUDICIAi. DISTRICT Mother. The form further required information as to "legal \IRENCE COUNTY •ENNSYL.VANIA 16 Circulated 09/23/2015 11:13 AM custody/court documents/special arrangements" relative to which Father placed "Father". Father explained that he answered that way because he felt that the current situation constituted sp~cial··arrangements as Mother has abdicated her role as a parent. Father felt that he had no choice but to enroll him in Hempfield because Mother would do nothing to keep enrolled in Neshannock. Father maintains that Mother has refused to provide c:•• a p 1 ace to 1 i ve .. Father. takes c every other Sunday night at 5:00 p.m. for the custody change but Mother usually is not there. . . Father moved to Greensburg in July of 2013. He had previously be~n a family physician at Family Health care Partners in Mercer and Grove city and was admitted to the Grove city Medical center. Father is now the Assistant clinical Professor of Family Medicine and osteopathic Principles and Practice at the Lake Erie college of osteopathic Medicine located at the Seaton Hill campus in sreensburc, Pennsylvania. Although Father had other opp9rtunities .for teaching, he chose the Seaton Hill campus because it was the closest to where Mother lived, foregoing other oppo_rtunities to teach at medical schools that were farther away. · Father te$tified that·Mother lives on Shenango Road i~ Neshanno~k Township, Lawrence county, while Ms. slllllowns a ·residence on. Fireside Drive that is located approximately two- ·te,rth·s of a mi 1 e from Mother' s residence .. 531'!0 JUDICIAL DISTRICT order, c- Father noted that subsequent to the October 1, 2013 custody _was livi_ng with Mother but cm November 7, 2013, he IVRl!:NCI: COUNTY 11.':NNSVLVANIA 17 Circulated 09/23/2015 11:13 AM began running away from Mother. Late that evening ran Cllllf out of the house, in the evening, wearing nothing but pajamas and a pair of socks. It was approximately 30 degrees with snow on the ·ground. He ran from Mother's house to Fi reside Drive where Ms. s ..... was staying. Father was called and told by Ms. s-that c was inconsolable. Ms. s-was enroute to take c to a hospital because he was so upset, but Father spoke with Ms. slllllon the telephone and directed her to return to Fireside. Th~ police called Father and Father advised where c•• was. Father spoke. with c••, and Cl 3 ·explained that he was upset because of the yelling and screaming that was going on at Mother's home. Father wen~ to Fireside and . . had c sleep at Firesid~ that night. Father had sent Mother an email telling her where c was a~d that he was safe. Mother did not come to Fireside to·pick up CQ&lllllllllt Mother sent. an ~mail indicating that c 's backpack and school items would be on her front porch, and in fact, Father picked up c 's things from Mother's front porch on the way to school the next day at Neshannock. The next day c refused to leave school because he did not want to return to. his Mother ' s. Even tu a 11 y, c•• did go to Mother's house, and she brought him to Father's house .as part of the custody exchange in Greensburg. ca :Shad been fearful that Mother would no·t return him to Greensburg for the custody exchange, but once he was assured that she woulcf ao so., he 53RD agreed to go with Mother. JUDICIAL. DfSTRICT 1£!;NCI£ COUNTY ~NSVC..VANIA 18 Circulated 09/23/2015 11:13 AM c•• returned to Mother on the exchange day of November 10, 2013. c; was to be with Mother for the week, but on November 13, 2013, c ;· after school, went to Fireside. Initially, cu. had refused to leave school that day. Clllllf had informed the guidance counselor that he would not leave school because he would not go with his mother. Mother was informed of the situation and sent the maternal grandmother to attempt to get c c refused to go with her~ The school called the police, and ·an officer Sikes was dispatched to the school to talk to conner. .c was taken to the po1 ice ·stati-on.. Eventually the police officer drove cg to Motheris. c exited the police vehicle, walked past Mother's house, and over to Fireside. on November 14, 2013, Father took c to meet with.his therapi~t, John Moyer, and invited.Mother to attend. Mother did not attend, and on November 15, 2013 Father took CSL 8 to school at Neshannock. After school on that day, ca a went to Fireside. Father emailed mother with the information as to where c was and invited her to go pi ck up c ( J, with Mother directing that Father. bring c to her. on November 18, 2013, cg I. got off the bus from school, walked passed Mother's house, and went to Fireside. Father emailed. Mother as to where cg I was. 'The same· thing essentially happened on November 19, 2013, and again on November ·:20, . ·2013, and again on November· 21, 2013. on Friday, Novembe·r- . ···- 53RO 22, .2013 c went to Mother's after school. That day was a JUDICIAL. DISTRICT custody exchange day for ca a to be returned to Father. RltNCC: COUNTY NNSYI-VANIA 19 Circulated 09/23/2015 11:13 AM c g called Father and said he would walk over to Fireside because Mother was refusing to drive him over. Father could hear. yelling in the background. Father went to Mother's home, with police present, and c•• came out of the house and got into Fathe~'s car and Father and c returned to Greensburg. on Sunday, November 24, 2013, Father states that he .made an effort to return c- to Mother, had driven c•• to Lawrence county from Greensburg, Jet c•• out of the car at Mother's whereupon· c i a knocked on the door but there was no answer.· C15E then went to Fireside. Father sent Mother an email to inform Mother where c .... was. Again., c.., walked to· Fireside on November 25, 4013. on Thanksgiving Day, November 28, 2013, Ctllllllll' was to b~ with Father for Thanksgiving. At 8:00 p.m., the exchang~ tim~, c was dropped off at Mother's but CIIII' walked to Fireside. The maternal grandmother ·followed c ..... back to Fireside in her car. Father returned to Fireside. on·oecember 3, 2013, the first day back to school a~er Thanksgiving break, after. school CB S again went to Fireside. The same scenario . repeated itself for· the rest of . the week, whereby cg '7 would go to Fi reside instead of to Mother's residence. Father offered that c could stay overnight ----u ...~.,riday n.ight and attend a counseling appointment with Mr. Moyer .-'• ·the next day.·. However 1 C had gone to Mother's house after 53RD school put Mother was not there and the door was locked so JUOICIAL DISTRICT .VR£NCE COUNTY •r,;NNSVL.VANIA 20 Circulated 09/23/2015 11:13 AM c & q went to Fireside. Mo.ther did not come to Fi reside to get c:••on December 8, 2013, Clllllf again went to Fireside after s~hool. on that day, Father received a.telephone call from . officer DeWitt of the Neshannock police advis-ing that Mother had missing· child. · At the time, par tarnccnt+nued c- gone to the police ·station about 8:00 p.m. to report c through the week. was at _Fireside. on December 11,·2013, This as a c~ept to Fi resi d~ but that eve_ni ng he had a band concert also. c- at Neshapnock Junior High school. left ·contend~d that Mother ~ad left without Mother attended the concert the band concert with Father. Clllllllf as Father CIIIP was suppose~ to stay with her that night. As with each of.the foregoing events, Father documented all these matters with emails. Fattier gave testimony that explained the same pattern of Cllllllfgoing to Fireside until December 16, 2013. · on that date, ctllllll did go to.his mother's. cllllf was on the phone with' Father talking about a school ·project. Father-could hear Moth~r in·the background making comments. Family members came to Mother's home that everrinq , Afterw_ards., Father explains that 'llllll]f began to feel uncom:ortable and called hi~ saying. that he ---1 -states that c- was afraid to stay the ni.ght and was going to run. called him at varfous ·times during the night Father . until a time close to midnight when he ca1led one last time . .. . - .... - . . 53RO asking if Father felt sure that he would be ok. The next JUDICIAL DISTRICT morning·Mother drove conner to school. The next day, cg O did ,'IRll:NCE COUNTY 'ENNSYLVANIA 21 Circulated 09/23/2015 11:13 AM not go to Mother's but went again to Fireside. on December 17, 2013, when c~wen~ back to Fireside, ·he announced that he was never" going to his mother's again. Father's subsequent testimony continues with the same ri tua 1 of c... con ti nui ng to end up at Fireside. on ch ri stmas with Mother, with Fireside. the result that c- Day conner went up to Mother's door, had a brief conversation left and went to c- on January 1, 2014, c-wa-s dropped off at Mother's. left Mother's and went to Firesi"de. This time Mother drove to Fireside fQllowing c He got into Mother's vehicle. They drove back to Mother's home. He got out again and ret'urned to Fi.reside a second time.· Mother and maternal . grandmother followed c back to Fireside again .• After an exchange, clllllllllf got ·b~ck into the car. Mother did not return to her home but drove in a different direction with the result that, at a traffic l.i ght, c exited the car. Mother tried to stop cg ?-with the result that ca ripped his pants, but was able to exit~ C•tlll.., hid behind a convenience store, called his father, and was in fact picked up by Father. The police arrived shortly thereafter .. Father then.filed the · .foregotng referenced PFA in Westm~reland county, which. was dismissed. As a result of the PFA proceedings, Mother could :· have no contact with • c until the PFA was dissolved on ----H·---, :February 5, · 2014. on ._.February 5, 2014, Father dropped· c••off in the 53RO JUDICIAL DISTRIC'r driveway of Mother's home, and ca 1 immediately ran to WR!l:NCE COUNTY •r.NNSYLVANIA 22 Circulated 09/23/2015 11:13 AM Fireside. Thereafter, the same process continues whereby CIIIIIIJ refuses to stay at Mother's, and after school upon being dropped at or near Mother's home goes directly to Fireside with Father continuing to document to Mother by email where CJ • is located. At each scheduled custody exchange thereafter, the same pattern continued wherebx c would be dropped off at Mother's, Conner does not stay, and goes to Fireside~ on many of these occasions, Mother would not be at home. All of these incidents ~hereby cu S iS'' dropped off and does not stay are documented by ·Father in emails. This circumstance had continued up until the time of the most recent court filings .. During ~11 this time, according to Father, ·Mother does nothing with respect to c 's needs as it relates to education, hea'Ith care, or extracurricular activities: No contact occurred between Mo~her and Father relative to. c and Mother had ·no contact with c during the summer of 2014. Father initially thought it might be beneficial to· enroll c•• in cyberschool in the event that things changed but eventually decided to enroll him in Hempfield. Father invited Mother to a band concert at Hempfield on October 27, 2014, but Mother did not attend. Mother has not participated in any activities at the Hempfield school. Father testified to c 's exceptional performance at Hempfield and his being engaged in various extracurricular activities from which he has ---- ..U benefited. c .is in the. eighth grac1e,-a:n-d-ts-i·n-acl·van-Gsd--_,_ 531'10 classes. Mother has consistently refused to sign any documents JUDICIAL 015,-RICT relating to c 's education at Hempfield. ¥Rt!Ner. C:OUNTV 'IZNNSYI.VANIA 23 Circulated 09/23/2015 11:13 AM Mother testified that she is five feet, two inches in height and weighs approximately one hundred thirty pounds. Father .;s approximately six feet, two or three inches in height. Mother denied that she has ever threatened to shoot Father or to have ·ever heard him make that allegation in the past. In fact, she has never touched a firearm in her life. on the.other hand, Father has threatened her. In 2012, Father told Mother that she deserved to die. she just learned in the course of these - proceedings, the day before her testimony, that Father was carrying a loaded firearm at the custody exchanges. Mother . . · testified that she has never done anything to c•• in words· or deeds that in any way conveyed that she would harm him and in fact she has never physically harmed him. The. mother described the.standard exchange since October 1, 2013 by explaining that Father pulls .into the driveway; cg 7 comes to the door, either ringing the bell or ~nocking; Mother opens the door; c holds up his phone and records, stat,ng "I am j ust he re to te 11 you that I am not staying"; cg 7 then walks through the front yard between the houses and through the back yard holding his cell phone up the whole time recording and walking·over to the Fireside residence. Father sits in the driveway for a minute and then backs out and drive~ over to Fi reside. illegal drugs, .although •.. _ Mother is employed as a dietician. -.... she has·been .. _ Mother has never used accused of such by .Father. S3RO Mother denies that she has abdicated her respon~ibility as a JUDICIAL DISTRICT parent. she did not see any need to respond to an email where 0'.NCE COUNTY l'INSYL.VANIA 24 Circulated 09/23/2015 11:13 AM Father wanted c•• to be in cyber school because c•a:111.. was already enrolled in Neshannock where he had always gone to school and where he had done very well. ~while in Neshannock his grades where A's and he engaged in activities such as soccer, . baseball, took flying lessons and played a musical instrument. Mother noted that ca ff had taken flying lessons s ince he was about ten years ·of age. The maternal grandfather would often take c••to the flying Iessons as c••enjoyed a close relationship with, until the flying lessons were stopped about a year ago at Father's insistence. c was very interested in the flying lessons and Mother would participate with c in the lessons as part of it included classwork with which Mother helped ca R. Mother noted in her testimony that when Father calls and spends long ·periods of time with c on the phone, c111111• will thereafter be distant, reserved and avoid h~r. When c1111111• is ·out of his father's sphere of influence then he is good and that he is happy, engaged and interacts with Mother s~ch as wanting to watch a· movie. c•• is very involved with h+s friends when he resides with Mother. Mother denies that she had no plans for.c•• for school as the reality is that c•• is to reside at her house.and he would normally go to. Neshannock.at the start of the school year just like he has done every other year. There is no reenrollment process to continue at the same schoo l, she found .out. that Father had made other school pl.ans 5)RD for c by called Neshannock on the first day of school and JUOICIAt. DISTRICT learning that he was not there. She does not go to C 's i'!ltMCII: COUNTY l'INSYLVANIA 25 Circulated 09/23/2015 11:13 AM functions at Hempfield because she does not feel that·it is wise to be near Father, as she is deathly afraid of him. she cannot sign forms verifying any reading assignments as she has not been able to interact with conner or to even speak to him about it.' she testifies that she can't sign a form saying that c T has read something when she does not if he truly did it. she has not .had the interaction with c•• because c••1tdoes not come to her .house. Her response to Father's claim that he complies with the I order by bringing cg 2 to her house every other Sunday at . '• exchange time is that she is normally there although she is not· there every single Sunday because some Sundays he comes and some he doesn't and in fact she·knows that c will not stay but will simply ~ome ·to her door and say terrible things; things that sh~ knows he does not want to say but he will record .her on his phone for him to tell things such as telling Dr. Chambers that she had answered the door ·naked, which was false. she does not go to Fireside to pick-up·c• .. .., after he leaves her. residence because she knows that c is not going to come with her. The last time she tried to go Fi resi de before January 1, 2014, she was greeted by the p~ljce and was told she was under arrest for trespassing. she does not feel comfor tab'l e attending sessions with Mr. Moyer as she feels that he is I' ----U manipulated by Father. when she di~ show up at appointments ··,· scheduled for her by Mr. Moyer,·M·r. ·Moyer falsely ~ssert·ee1that:----- . ... 53RD the. appointment had·been changed even though her appointments JUDICIAL DISTRICT cards show the correct date. When she showed up for her Rl!NC:5: COUNTY NNSYLVANIA 26 Circulated 09/23/2015 11:13 AM orthodontist appointments, she would find out that Father had. cancelled the appointment. The orthodontist refused to see Mother without Father being pre~ent. Afterwards, she would be accused of not parti~ipating. Mother also referenced disturbing photos on Internet on or. Moyer's website that appear to have pages of young girls with inappropriate names. Her ~xplana~ion of the QCcurrence on November 7, 2013 was ,. that c left her house about 9:30 in the evening after everyone, including~ , had gone 'to bed. There had been no issues that evening. About 9:30 on the 7th, c got up to use the bathroom, and took of down the steps and straight out the front door wearing his pajamas. There had been no interaction.with c from the ·time he went to bed until he le~. He did have access to a telephone .. Issues.had previously . . risen with respect to .cs 5 using a telephone.to have conversations with Father. Generally after he would hang up the phon.e with his Father he would have a tantrum. Approximately . two years ago, after a conversation with Father, Cb 7 hung up the phone and then began screaming saying that Mother was going. to kill him. on this occa~ion, after c ran out the door in hi's pajamas, Mother ·called the poli'lllltNC:P: C:OUN"l"Y •ENN$VL.VANIA 53 Circulated 09/23/2015 11:13 AM until 1:00 a.m. on and off. He described his breathing as shallow, breathing really fast, his heart was racing and his throat was throbbing and his face got ··real hot. The next day he went back to fireside and did not return to his mother's house. He continued to go to Fireside from the bus. The next video is the one where he indicates that mom appeared at the door undressed. He describes tha~ he is holding the camera, and his head is further left of the camera. He can see around the door and could see most of the right side of her body. He could not see any clothes on her shoulder or anywhere around her neck or anything and saw the top part of her chest, ~he side of her chest and the in~ide of her knee and leg and there were no clothes on any parts of her body. He stated that he was completely startled when she answered the door naked. Cdt I I says to her that I'm coming to invite you to go to counselin~ with me. He gave her an exact date and time that she was to go to counseling with him. The date of this event is November 23, 2014 (obviously meaning 2013 given the timeframe of everrts). ... c417 .. stated that h1s mother was never willi~g to go to .counse'l inq with him, his dad 'encouraged him .to -reach out to Mother in other ways such as g~ing to lunch or just talk on the porch. He ~o~s describe the lunch with his grandmother as a ·pleasant event. At the end of the lunch he told his grandmother ~that if she Wanted ·tO have lunch agai nshe--CO-ulelsena-him-at·ext·:··· -:-·· S3FU> or call him and he give her his phone number. After that JUDICIAL OISTRICi· •Rl!:NCE COUNTY EN,ooO_. CONSIDERATION OF BEST _ INTEREST FACTORS.·.--- ,. ,,,,, ··-··· '53RO rn a custody case the primary concern is the best interests JUDICIAL DISTRICY of the child .. As stated in saiotz v. Rinker, 902 A.2d 509, 512 (l'!l:!:NCI!: COUNTY ltNNSYt..VANIA 62 Circulated 09/23/2015 11:13 AM (Pa.super. 2006), "The best-interests standard, decided on a case by case basis, considers all factors that legitimately may have an effect upon the child's physical, intellectual, moral and spiritual well-being." Cf. Arnold v. Arnold, 847 A.2d 674, 677 (Pa~super. 2004). The court is required to consider the bests interest factors that are set forth in 23 Pa.c.S.A. §5328(a)(l-16). The court notes that these factors were addressed in the proceedings before·Judge Piccione which culminated.in the October 1. 2013 custody order. Although this proceeding constitutes competing petitions to modffy that ~ustody'order, this Court must conduct an independent inquiry :into the statutory fact~rs enumerated in §5328 and cannot simply incorporate by reference the findings from the earlier decision. -see M,E.V, v. F.P.w., 100 A.3d 670 (Pa.super. 2014). section · 532&(a) spect f'lca'lIy provides as follows: (a). Factors.- In ordering any form of custody, the court shall determine the best interests of the· child by considerin~ all relevant factors, giving weighted consideration to those factors which effect the safety of the child, including the following: .... (1) Which gart~ is more likely ~o encourage and permit frequent and continu1na contact between the c6ild and other pa_ty? Mother was able to exercise ~ustody of cllll from February 2013 unti 1 ·, ate November .of 2013, as c ... began refusing to go · · · · . · · · -- . 53RO JUDICIAL · --to--Mo-the· . ,-:,·:· . .•. · ·. r-t,s--··heme---s . . 20.13 was i ss~·ed. Father testified must see his mother and comply with the court's order. that he te 11 s C- ho r.tl-Y---af.ter. . -.th.e.-.cus:to.dy_o_r:.de.c_Qf. __ .Q5;;_tobe.r _ l r... - that he However, __ . ... DISTRICi the court finds that Father's attempts to enforce compliance are ~ENCi!'. COUNTY NNSYl.V ... NIA 63 Circulated 09/23/2015 11:13 AM rudimentary and not sincere, and that in fact Father has alienated Cllllt against Mother in order to avoid the results set for~h in the October 1, 2013 custody order. The reasoning,. behind the court's conclusion is set forth in more detail in the discussion section of this Opinion. There is no evidence that Mother has interfered with the [nter fer-ed with c-' custody time of Father, and to the extent that she has s efforts to t in custody of. Mother, it has. only been to address excessive e lephone his father while telephone communica~ion between clllll and Father as to interfere with Mother's custody time with c~. (2) c- and Father contend that Mother and the maternal grandfather are physically abusive to clllll, The court finds that· the evidence supporting this claim is not credible. cllll testified that he is afraid of Mother and afraid that she and The co:u rt finds that c- the m~ternal grandfather will hurt him and have done so in the past. is making such statements in an. effor.t to control th~ outcome of this case as he is aligned with Father and alienated from M9ther, as will be explained . further infra . . _ . . _. :·:··_ ........ __ The cour-t concl u-des . °ihat'·"·tfier·e-· is no credf61 e evicl'erfte""l:hat !53RO either party is physically abusive or verbally abusive towards JUDICIAL OISTRICT c4IIIIII. However, to the extent that Father's· efforts to f&:NC:E COUNTY NNSYL.VANIA 64 Circulated 09/23/2015 11:13 AM ali'enate cl 3 from Mother may be considered abusive, the court is concerned that c has been psychologically harmed because of the pattern of alienation. The court sp~~ifically 1inds that the testimony of Mother and maternal grandfather relative to the incident of November 25, 2012 is credible, and no abuse occurred. The court here finds, as previous courts have found, that on November 25, 2012, cl Jihad an extensive telephone conversation with Father while in custody of Mother at Mother's residence. After that conversation ended, ctlllll acted in a manner whereby he was out of control. Mother attempted to calm clllll down, but .ctlllll, -without any re~son to do so, began to scream for help stating -~hat Mother was going to hurt him. The maternal grandfather .arrived to render assistance. Upon arrival, the maternal grandfather found c~barricaded inside his bedroom. Maternal grandfather was required to push the door open to enter. ·c~ threw himself ?n the floor and contiriued'to engage in a tantrum. Maternal grandfather and Mother restrained Ctlllllby holding his ar.ms and legs until he calmed down. Afterwards ct1111111was fine, had something to eat afterwards, and the next day interacted with the maternal grandfather as though nothing.had occyrred, spending time with him. Both Mother and Father have appropriateiy cared for Cllllf 53RD JUDICIAL while exercising physical custody relative to preparing of DISiRICT meals, gettjng conner to school, seeing to his hygiene and dress '111ENCII: COUNTY ,NNSYI.VANIA 65 Circulated 09/23/2015 11:13 AM and otherwise each providing and being able to provide suitable parental care of c~. Aside from the issue of c11119's alienation from and expressed fear of ~other, that is without foundation, Mother and Father are each able to render appropriate parental care. (4) Because of the protracted 1 i ti gati ~n between the part_i es, clllllll lacks stability and continuity-in all aspects of his life. He previously attended school in Neshannock Township. Howeve'r, commenci ng with. the 2014-15 schoo l year, rarher , who did not have primary physical cus~ody nor any legal. custody pµrsuant to the court 9r.der, enrolled_ cllllf in the Hempfield school District in westm~reland county. This enrollment is ·-directly in contravention. of the October 1, 2013, court order and wa~ done without court approval. Thus, ct1111is faced with having to be returned to the Neshannock school District if the custody order does not change. clearly his family life is undermined in that the result of the extensive litigation is that he has not had contact with his mother and mother'·s family since oecember, 2013. c1111111t's sense of stability is further disrupted by the fact that Mother and Father have a complete inability to communi~ate with each oth~r in a civil manner. . . .......... . . . . - -Although-E----i··S·· . de:i.ng we.1-L.-i.n hf.s, cu.r..r. ent v e.o.r.Qllm~D.:t; i..!t ..~_l!_~ - . \ . Hempfield school District, Ctlll is a~ intelligent young man 53RC JUDICIAL and will do well in any educational environment. The DISTRICT instability results ·from the manner of interaction between his 1RENCE COUNTY ENNSYLVII.NIA 66 Circulated 09/23/2015 11:13 AM parents. The court further finds that the pattern of conduct whereby Father drives c I from Greensburg, Westmoreland county to Neshannock Township, Lawrence county each week so that conner may exit his father's car, knock on Mother's door and tell her he is not staying, and then proceed to the residence of Father's _si gni fi cant other, videotaping the entire proceeding, even beginning the videotaping in Father's car without objection from Father, i.s not indicative of stability in his family' life. (5) The availa_bility of extended family.· The maternal grandparents live near the residence of Mother - and have the desire and the ability to assist Mother in caring for ct11111and are available on a daily basis. grandparents express great love for c .. s alienation C- The maternal and are devastated by from Mother and from maternal Q.randfather. c .. does express a fondness for maternal grandmother and did invite her to have lunch with him, which was successfully accomplished. It is noteworthy, however, that in expressing his fondness for maternal grandmother, cllllll also expresses, without foundation,. that she is abused. ·Father does not have extended family that lives in proximity to nis residence. (6) The child's sibling relationships. . This factor is not. applicable as ctlllllf is an only child, -~nd nei the r p~~-;·~·t· · h~;·· · ·;·~-y-·-_;the_r ch i l d ren-:··-·-·-· ,- _, __ .: ·-- -·-- SlRD JUDICIAi. OISTRIC1" 'iRENClt COUNTY ENNSYI..VANIA 67 Circulated 09/23/2015 11:13 AM (7) referen e of t e child bas d on the maturity an Judgment. c is fourteen.ye!rs of age, clearly possessing a high degree of intelligence, and displays a high level of maturity for his age. c S does not only demons tr-ate preference to live with his father, he di~plays a total disdain for Mother. He states that he is fe.arful that his mother and/or maternal grandfather will physically harm him. He testified that his mother.would threaten him, dig her fingernails into his arm, yell at him and otherwise physically abu~e him. Cllllf 'himself .has stated that he wanted to kill his mother and blow up his school. ctlllllstates that Moth~r and maternal grandfather attacked him on November 25, 2012 and then on ·January 1, 2014, Mother attempted to harm him in the incident when clllll exited 'the·car driven by maternal grandmother with Mother seated in the back seat with cllllJ. The court specifically finds that cllll's perception of the· events of November 25, 2012 and January 1, 2014 are completely unfounded and that there is absolutely no basis for cllll to believe that his mother will harm him in any way. In.answering each question put to him by counsel. in the court, ctlllllll answered each question in such a way ·as to place Mother in the worst light possible. Cllllltould ~ot identify a single positive memory of any event involving his mother. when -~~ked-·-abo·ut~·-·fly-i-ng---le-s-sons. :that--be __to~ok.....u_p__!,J_r:tti l 2011.J downplayed Mother's support of the lessons. when he described f- - - . 53RO JUDICIAL. their va~ation taken to south Carolina, he indicated his mother DISTRICT paid little attention to him. rRENCE COUN,-Y ;;NNSYI.VANIA 68 Circulated 09/23/2015 11:13 AM Although clJllllllllt states that he is fearful of his mother, a video introduced into evidence by Father shows the contrary. Father depicts c .... on the telephone with his father and Mother telling him to get off the phone because of the length of time that he has been on the phone. It is clear in the video and the ·statements made by him and in the manner of expression that cg 2 is clearly goading his mother. He is videotaping her being upset with him being on the phone and the court finds that this was in effort by clll!llll*to get Mother to do something physical that could be used against her in court. His efforts were unsuccessful. Mother's reaction to his obstinance was .understandable under the circumstances. one cannot ·view this videotape and conclude that Cllllllllhas any fear whatsoever of his mother. ~estified that his mother would take a voodoo doll hanging above the kitch~n sink, and ~tab the voodoo doll with a knife and smash in the drawer as though she were displaying such aggression against Father. The voodoo doll was stated by him to appear to be wearing scrubs and his father is a physician, would therefore represent Father. when shown the voodoo doll on cross ·examination, ctlllllcould not exp~ain why the voodoo doll was in excellent condition, other than showing age, containe9 no evidence of any damage to it and.clearly no knife marks. His pnly explanation was that perhaps the doll had been substituted . ~;t~-~·~·;, g_r.an.dmother. . ,_u,._, • ,, • ., ••__ ,.,,._,._, • Testimony from was .. that the dol'T""at'·····a-- · 53P!D recess was removed from its place above the kitchen sink by JUCICIAJ.. OISTRICT i'PlltNCII: COUNTY ENNSYl.VANIA 69 Circulated 09/23/2015 11:13 AM having to unscrew the handle on the cabinet door at it had never been removed prior to having been put there originally. c II testified that on one occasion his mother answered .the door. totally naked. Mother testified that the occasion · c is referring to was an occasi'on where she answered the door in a nightgown and the nightgown was shown to the court, with the court 9bserving that there was nothing improper about it. Early in the trial, Father claimed to have a video of this occurrence. counsel for Mother demanded the video. It has been· produced and entered·into evidence, and it does not show Mother without:any clothes. All that the video shows is Mother's arm ·and does not support c.... 's testimony. In testifying as to living with Father, Ctllldescribes everything in a positive manner. He enjoys living with his father, enjoys the school he presently attends, describes the school that he presently attends ~s being a much better school than the school in Neshannock Township, describes Father as good ~ . at helping him with homework where Mother was not, gets along well with Father's significant other and enjoys the time that he spends with Father. In view of the foregoing, the court finds that ·Ctllllr's preference is not well-reasoned; that there is no basis for his disdain ·towards his mother and that his testimony relative to the conduct of Mother·and his fear of her is not credible. · ·~-'·s · ·atti tud~ ·t~~ards his mother ·;:s ·-the _. . u'nfortunatEf'"N~-strlt . - · -. · !13RO of the fact that the parties have been in constant litigation JUDICIAL DISTRICT IU::l'ICI!: COUNTY ,l'INSYLVANIA 70 Circulated 09/23/2015 11:13 AM over him during most of his life and that Father has succeeded in alienating him against Mother. Mother's position is that Father has clearly turned~ against her. The court finds that there is merit to Mother's contention. c 's total refusal to be with Mother did not come about untri 1 _shortly after· the october- 1, 2013 custody order that gave· primary custody to Mother. Until then~ c~ did spend an equal amount of time with Father and Mother, changing custody on a weekly basis, and had done so since at least February, 2012. Therefore, it appears that c 's behavior was simply a way of ·-avoidi.ng compliance with the October 1, 2013 court order and that c is behaving the way that Father wants him to jn order .to retain physical custody. Father and c.....-both state that Father tells c..., that he must comply with the court order and he must go to Mother and that each week at each appointed time of custody excha~ge Father drops cu off at Mother's house but c simply won't go. Cl£ will either knock on the door and tell his mother he is not staying or will simply walk through the yard and end up at the Fireside residence of Father's significant other. Father wi 11 pi ck c I $ up at Fireside, email Mother as to where c•• is and then return·with c to Greensburg. However, the .. ~ourt fi.nds that Father is only paying lip service to the · ~-~-~~~~j"~.= order- know·i·~·g··· ·fu1·,·· we"fi·· · that . . c. . is not going·· to· srav:': ""'''' '''•"•-•~•••••••• • O• ,, .. ,., . ·., ' 531tO and that Father does not expect him to stay. There is no JUOlCIAL DISTRICT evidence whatsoever of Father doing anything to require RE:NCE COUNTY ,NNSVLV"NtA 71 Circulated 09/23/2015 11:13 AM to stay. Father drops c"IIII off in the driveway of Mother's house but does not· get out himself to.take C ..... to the door. These exchanges are ~enerally videotaped.by c&illlll an~ there is no indication in any videotape of any effort by Father to make cs :ar stay. In fact, the video tape introduced into evidence by Father shows- c • commencing the videotaping as the car +n which he is riding with Father is pulling into the driveway. Father can obvious·ly see that c- is vtdeotaptnq and thereis no effort to discourage or forbid him from such conduct. The court finds that ·thi"s is evidence of the Fat~er encouraging and condoning clllllll's behavior. Each time an incident occurred that involved any type of physical contact, Father would immediately file a PFA on behalf of conner when in reality the occurrences became physical only because of the need to-restrain clllllto keep him from hurting himself. · Each trime conner would refuse to stay at his mother's he would run over to the Fireside residence. Entry into the Fireside residence was gained with a code which Cllllt knew. No effort has ever been made to change t~e code to prevent c~ from entering that residence. No effort has been made to forbid ctllllfrom entering· that residence~ The Fireside residence has been made available to conner by Father and Father's s·ignificant other as a place of refuge to avoid having to stay with Mother. it is c~ear·to the court that if ctlllllwere to be left in the .· .. -·- · phys+ca] .. custody of Father,-- there, is no reasonab.1e."-Ti'ke11ho'od_.......~··:· that ct111could ever have any type of meaningful relationship 53RD JUDICIAL DISTRICT with Mother as that would.be contrary to Father's wishes and ~Rll:NCE COUNTY 11:NNSVI.VANIA 72 Circulated 09/23/2015 11:13 AM expectations and that under current circumstances, c111111will do whatever he has to do to meet those wishes and expectations. In July of 2014, Judge Thomas M. Piccione ordered an updated custody evaluation be prepared by Bruce chambers, Ph.D. Dr. chambers conduc~ed the evaluation, prepared a report and testified at the trial in this case. or. Chambers recommended that Father be granted full legal and physical custody of c• s. Dr. chambers concluded that there was no evidence to suggest active alienation on the part of one parent or· the other. Dr. chambers opi~ed that Cl T's preference to reside with his father and to avoid custody with his mother is due to personality issues in Mother whereby she has manifested her anger toward Cfll///l· in a variety of ways. or. chambers stated that Mother appears to have issues with anger management referencing Cllllt's statements about her yelling and screaming. or. chambers believed that Cllllf was credible in his interviews with him and. in his prior interviews with or .. Darnell. or. chambers concluded that in Mother's household and with the interaction of Mother's parents, there is a lot of animation and yetling in day-to-day communications. Chambers also accepts as ' credible c s statements that his grandfather could go to jail if he talked about what happened; that .no one would believe c f and that he would be sent to a mental hospital. chambers 'a'l so noted in his interview wi~h CQI r that c commented •'that' indst nights when they had dinner- t'ogethe'r ··w~'t'fi" ::fr;e·- . 53RD grandparents they were nasty, mean, and rude to each other. or. JUDICIAL DISTRICT chambers gives Cb I credence in these statements noting that IR ENC&: COUNTY l!NNSYI..VANIA 73 Circulated 09/23/2015 11:13 AM this type of activity would be stressful to CIIIII'· Repeatedly, throughout his report and his testimony, chambers indicates that cs a is credible and what he states about Mother and her explosiveness, display of anger, and Mother's behavioral issues .that have caused c to fear his mother. or. -Chambers also notes that in concluding that there is not parental alienation being engaged in by Father, in true cases of·parental alienation the·resulting·behavior and attitude toward the alienated pa~ent tends to be much more polarized, with children being unable to talk about little positive if anything about the alienated parent. Dr. chambers noted that ·this was not the case in his evaluation, chambers noting that Cl :0 did describe some positive moments he had with his mother in the past. or. chambers conceded in his testimony that his conclusions are based upon the fact that he finds c•• to be credible and that he has been consistent in his statements when his present statements are compared with statements he has made in prior evaluations. He also notes that Mother. was pessimistic tha~ any positive outcome could come from the evaluation, that she was ·less than fu'l'ly cooperative, with or. chambers noting that Mother's contempt for the process was evidenced in her· incomplete pre-evaluation questionnaires .. chambers noted that ~he was sparse in her information in those questionnaires in regard rovher-se l f , ~$5-Ues With Fatfi'er;·· ·and·· c : . · -· ·-- . ~·- - . ·-··- · · ·---· -. The court here concludes that Dr. chambers' conclusions are 531'!0 JUDICIAL DISTRICT not supported by the record for two distinct reasons. First of Rl!'.NC:E COUNTY :NNSYLVANIA 74 Circulated 09/23/2015 11:13 AM all, the court does not find CCIIIIIIIF• to be credible in his statements relative to Mother's conduct. The Court has had the benefit of a tri'al whereby c••' s statements relative to Mother's conduct has been subject to the test of cross- examination and rebuttal by other evidence.· In th1s record, there is no indication of Mother being explosive or expressing. anger towards c At best ·all that one can say is that she is· understandably· frustrated by a process whe'reby she has had by court order primary custody since October 1, 2013 ye~ has not had c since December, 2013. The court has had the opportunity to view the demeanor of Mother as well as the ·maternal grandparents and they all appear to be individuals who· exercise good common sense, love c very much, are dealing with a difficult emotional situation as best as anyone could in these·circumstances --and are truly heartbroken over the course this case has taken. -As above indicated, any claim that c:••• fears his mother is clearly negated by the very videos that were introduced by Father where cg S can be seen being aggressive in his desire to anger his mother and in his calculating conduct in videotaping every possible exchange he can, with the purpose of having evidence in court to use against his mother, by his -own admission. unfortunately, or. chambers accepted a view of Mother from his limited ability to analyze the evidence, which ·js directly contrary to-the evidence that the court was able to . · -·····- ···~-~~·,· ~~~-~·· · i··~·· ··;·· ·t·~·i-~1··:--;etti ~g. - Th.e court -·finds ·that the _ : _ . · ·· ·· ·-·· 53RD underlying factual bases for Dr. Chambers' opinion have been JUDICIAi. DISTRICT disproven or are unsupported by the record. 'Rl':NClt COUNTY i:NNSYI..VANIA 75 Circulated 09/23/2015 11:13 AM secondly, or. chambers in concluding that there was no .indication of parental alienation by Father, bases his conclusion, at least in part, by his determination that c111111t did have positive memories of times with his mother and in true parental alienation cases, the situation is much more polarized with the alienated child having little or no positive statements to make.a~out the parent being alienated. Here, when one views c lf's testimony, c :S has nothing positive to say about his mother and the court cannot conceive of how c 's attitude towards· his mother could be any more polarized. He displays nothing but disdain for her. He entered every question in a · manner calculated to place Mother in the worst light possible. when the. court questioned cg 9 about positive memories with Mother,·c..1111•would put a·negative spin on any .Possible memory that could be considered to be a positive. on cross examination,. or. chamber's conceded that if the .events that c•• described never happened then the basis for his opinion would be incorrect. The Court concludes t~at such is the situation in that cg has consistently attributed to Mother and the maternal grandparents conduct that has in fact not occurred and that a finding of parental alienation is supported by Dr. chambers own observation that in true parenta'l alienation cases the effected child has little or nothing positive to say about the alienated parent and the child's . -- - .. ) . . . ··-"""" --·- _ - __ """'"---·······--·--- ..--·----·---··-··· --· .. ---·-- _, , , . perception of the a 1 i enated parent . is po 1 arfzea:-------·----·-~-·-· · _,_ · A psychological evaluation was done of c 9 at the 53RD JUDICIAL. OISTRICT request of the court by Martin Myer, Ph.D., psychologist. In ll!NCf? COUNTY ~N$YLVANIA 76 Circulated 09/23/2015 11:13 AM his conclusion, or. Myer notes that the evaluation focused solely on the mental status of cg g and not the psychological or emotional status of the parents. or. Myer concluded that the current findings do not suggest significant psychological damage to c t W; that he is.fairly resilient and even flourishing in the current situation. However, or. Myer notes that Mother has not had a chance·to parent largely through the willful behavior of c or. Myer also recommends that counseling occur between cg; and his mother. or. Myer even comments.that both Mother and Father should seek their.own counseling. or. Myer does not address the.issue of.parental alienation other than to ;i"ndicate that he does not rule it out. It is also noteworthy that Dr. chambers referr.ed to tQe report of Dr. Darnell as support for or. chambers.' own .con cl usi ons , .i ndi cati ng that Dr. Darne 11 's concl usi ans paralleled his own. However,.Judge Piccione noted in his opinion ·of August 1, 2013, that when Dr. Darnell, in his testimony, was presented with hypothetical questions regarding behaviors displayed by Clit over the course of the past year, or. · oarne 11 testified that those behaviors we re consistent with behaviors exhibited by a child suff~ring from parental ·alienation. see Trial court opinion, October 1, 2013, page 24, 25. a .. - -- . 53RO 'UDICIAL Both·parents love CB!.7 and wish to see c1111 flourish in )!STRICT every aspect of his life. Unfortunately, . they have a total 1!:NCE COUNTY NS VI.VANIA 77 Circulated 09/23/2015 11:13 AM inability to co-parent and have exposed Cllllllf to over a decade of litigati"on that has clearly affected him emotionally. c R's negative and i rrati ona 1 attitude toward his mother demonstrates that his emotional needs are not being met by Father. contrary to court order, c111111thas remaine~ in ·the actual physical custody of Father without legal basis, and this has a11owed the situati"on to get worse in regard to c 's feelings toward Mother. Cg I's testimony and that of his Father par~llel each other, both being quick to lay blame·on Mother who has been put tn an almost impossible situation, including.her being criticized for not following Fath~r's lead ·on various issues regarding c when Father is clearly acting in corrtr'aventrl on of the cus.tody order. The court further notes that the di scussi.on contained relative to factor· (8) applies also to relative to the discussion relative to the within factor. Both parents have the ability to meet the daily physical, developmental, educational ~nd any special needs of c :r. Both maintain more than ad~quate households, have the ability to clothe and feed CUJ g and support him in his educational . .p-ro·gre:s-s-···and···-suppor't-·· h" · ·1·m· · 1·n' ····extr.acu.r.r.-1.cu . 1 ar._.act:1.v..1.. . .t.1.es . ·-···. However, Ct1£••:, s emotional needs are not being met by Father !!3RO JUDICIAL while in his custody as allowing to remain in his custody has DISTRICT escalated Clllllf's negative perception of his mother. IIRl!:NCIC COUNTY ll'.NNSYI..VANIA 78 Circulated 09/23/2015 11:13 AM (11) Ihe proximi·tx of the residences of the parties. During the time that Mother and Father exercised shared physical custody on a week~to-week basis, the parties lived in the same neighborhood. However, Father has relocated to Greensburg, Westmoreland county, which ts approximately an hour and a half drive between the residences of Mother and Father. This distance requires a determination that one party must have primary physical custody, at least during the school year. (12) Each art's availabi i abilit to make appropriate There is no indication in this case that childcare is an issue. c•• is fourteen years of age and attends school regularly, both parents are.employed, Father as a professor at .'LECOM located in Greensburg, Pennsylvania and Mother being ·employed in the medical field. The parties had enjoyed shared physical custody with .childcare never having been an issue. Mother has the availability of her parents to assist her in· attending to c••111111• if necessary and Father has his significant oth~r, Ms. $I I ?, to assist him. (13) The level of conflict between the parties and the willingness ana abi1fty of the parties to cooperate with one another. A party's effort to protect the child from abuse by another ··· · -party··ts .. not -~v-i-denGe o:f unwi.lli.ngness or . ..i..n.ab.i.l.tt.Y ~9 f.'?9.P.~t.~t~ · with that party. 53RD JUDICIAL Mother and Father are unable to cooperate with one ·another. DISTRICT The level of conflict is apparent from a history of constant 11!:NCi: COUNTY 'iN5YLVANIA 79 Circulated 09/23/2015 11:13 AM litigati~n between the parties that exceeds ten years. Mother and Father are unable to communicate with each other and what communication that has existed has occurred through emails or text messages. It is necessary for one parent to be awarded sole legal custody because of the inability'.to agree on any major decision to be made on C11111t's behalf.· (14) The histor¥ of drug abuse or alcohol abuse of a party or · member or a part¥'S household. N~ither party has any history of drug or alcohol abuse. (15) The mental and oh¥sical conditions of the parties of caring for · . hea] th disorder. c..... Mother and Father are both health.y and physically capable Neither party suffers from any mental DISCUSSION The parties hereto are each seeking modification of the existing custody order o'f October 1, 2013. Modification of an existing cust~dy order is addressed in 23 Pa.c.s.A. §5338(a) which provides that a. court may _modify a custody order to serve the best interests of the child. The comment thereto provides .that this subsection codifies the standard used in Karis v. Karis, 518 Pa. 601, 544'A.2d 1328 (1988) where the supreme court .he'td=that+a reques·t-·-to--modi·fY····a· ··GU.stody orden naqui.res .the c.ou.c!; ~ . to enquire into the best interests of the child regardless of 53RO JUOICIAI. whether a "substantial" change of circumstances has be~n shown. OISYRICT Karis, 518 Pa. at 607-8. F\'ENC:£ COUNTY NNSVLV .... NIA' 80 Circulated 09/23/2015 11:13 AM Additionally, Mother is requesting special relief so that her award of primary physical custody may be materialized. A tequest for ~pecial relief is iddressed in 23 Pa.c.s.A. §5323(b) provides that the court may issue an interim award of custody to a party who has standing in .the manner. prescribed by the Pennsylvania Rules of Civil Procedure governing special relief in ·custody matters. Although extensive proceedings have been held on the competing requests for modi.ficatiori, and for special relief and finding~ of contempt, essentially nothing has changed subsequent to the proceedings that resulted in the October 1, 2013 custody · .:·order except that c adamantly refuses to be with his mother. cqjgzp's recalcitrance to being with his mother was recognized by the trial judge in the prior proceedings.· In the .October 1, 2013 opinion, the -cour-t noted that Father encourages c 's unreasonable apprehensions regarding Mother (Page 25); that Father has demonstrated a desire to frustrate Mother's relationship with cg 9 (Page 29); that if Father is awarded primary physical and sole· legal custody, cg 3 's relationship with Mother will dissipate to the point of disrepair (Page 33); that the foregoing analysis finds fault in F~ther for enabling c 's unwarranted fears and ' trepidations of Mother; ' ' the court believes that Father's actions have caused Mother's relationship with c to suffer, but the court does not believe that ............................................................. ·Father's actions should be characterized as alienating (Page_ .. S3RO 33). JUDICIAL DISTRICT R£NCC COUNTY NN!IYI..VANIA 81 Circulated 09/23/2015 11:13 AM Although the trial court in the prior proceedings stops short ·of characterizing Father's actions as alienating, the court did attribute c 's unfounded.perceptions of his Mother to be caused by Father's actions and that Cllllllf'S thoughts about Mother paralleled those of Father.5 The court's prediction proved to be true, that if cs t were· left in the custody of Father, the relationship wi th cc I and Mother wou'l d only deteriorate. However, the circumstance that allowed Father to have the custody was not brought about by court order, but·by the fact that c•• s'imp'ly refused to be _with Mother, and that 'cf rcumerance has been allowed to exist without being :specifically addressed by the court re'l at lve to the aspect of ·enforcement of the October 1, 2013 order. The issue of a ch+Id refusing to see his mother, although u~usual, has been·addressed by our appellate court?. In Nancy E.M. . v. -Kenneth D.M., 316 Pa.super. 351, 462 A.2d 1386 (1983), . the superior court held that the fact that a child does not want to see his parent is not a sufficient reason to deny the parent ' visitation. The court further held that ordering visitation at the desire of the child was tantamount to denying mother her visitation rights and therefore constituted error. In ~om.Ex Rel. stoyko v. stoyko, 267 Pa.super. 24, 405 A.2d 1284 (1979), the court set down a specific standard to be ..... ......... - ····- .. -··············--·····- . sMore r-ecerrt ly, Mother filed an in~unction proceeding against ·Father·•s·-···-· .. ·-····· significant other, seeking to en'oin her from interfering in the custody matters. a . E 1 · a , No. 10191 of 2014, C.A. The 53RD same trial ju ~et at issue the octo er l, 2013 custody order in this case JUDICIAL denied injunct1ve re1ief1 but in a Pa.R.P. 192S(a) opinion found that the DISTRICT "root of the mi nor chi1 d s behavior seems to have been derived from or. Thomas." (Pa.A.R.P, 192S(a) opinion dated February 4, 2015, page 10. ·1tNCE: COUNTY Htll.YLVANIA 82 Circulated 09/23/2015 11:13 AM followed in addressing the child's refusal to see his parent. In stroyko, the superior court held that the stubborn refusal of a child not see his mother should not be allowed to destroy the parent's visitation rights unless some good reason can be shown for the child's attitude. In determining whether the child is justified in his behavior, exploration should be made into Mother's past and present to decide whether the causes for th~ chi"ld's fear and resentment had ever existed or have since · vanished. Here, after evaluating all of the available evidence, · the court finds not only that there is no basis for c to · 'have any fear of his mother, the court al so .finds that in •reality cg I has no fear towards his mother nor of his ~aternal grandfather. The court finqs that c expresses this · fear only for the purpose of fulfilling his father's · expectations that he have no contact with Mother. In concluding that the conduct of Father is. alienating conner from his mother, the court points to the following factors: Both c 3 and Father express the ·fear that Mother will harm both c and Father. Father has even expressed his fear to the point that he obtained a ~oaded firearm that he carried·. with him during the custody exchanges out of fear that.Mother ·would kill him. He has gone as far as carrying this loaded firearm into the Westmoreland county courthouse during PFA 1 P roceedt n9s ; nvo ~i. ~~- . -h·i·;;·~·,·i . . . . M~t'tie·~- . -in·d· . E. . . . -- . · ·--·-;· . --,..e"a"a,. .,-~T-·fo. . 'fili·· · 53AO arrest. These fears have been repeated by both cs A and JUDICIAL OISTRICT Father repeatedly during these proceedings, prior proceedings of RENCI!: COUNTV tNNSYLVANIA 83 Circulated 09/23/2015 11:13 AM this case and in all of the related proceedings in this court and in Westmoreland county .. other than the testimony of cqg111..- and Father, t6ere has not been one iota of evidentiary support; for these expressed fears. Neither this court nor any other court has found any support for these expressed.fears. The available evidence leads to the conclusion that the expression of fear is contrived. similarly, c 's expression of fear . . towards his maternal grandfather is incredulous, and has been so found by this court and in prior court proceedings in this court and in Westmoreland county. Equally incredulous is ca D's statement that the maternal grandfath.er .called him a "worthless :pi-ece of shit", the court making this finding after observing the grandfather and ~ssessing his testimony and demeanor. ot~er claims of~ have.been dispr~ven. c:•slll• claimed that Mother answer.ed the door on one occasion naked and it was represented that there existed a video to support the claim. The video that was requested to be produced did not show what he had described. cj R claimed that Mother had stabbed and smashed a voodoo doll representing her desire to kill Father. The exact voodoo doll produced was not damaged in the least. Further evidence · showed that the doll cou~d not be easily removed from w~er~ it was affixed, and when c•• was confronted with the doll he $Uggested that perhaps it had been replaced. .. ·-··· -v ., ca ,,-,,.~ ' 9·9 a1 so s·~· ~~·t;ci·- . th~t . Mother had P 1 ace,rh:rs· i:i'fcfiir.e... . ·· !531'10 next to the voodoo doll indicating her desire that c should JUDICIAL DISTRICT also be harmed just like Father should be. Evidence showed that RENC:lt COUNl'Y : N NS YI. V /\NIA '84 Circulated 09/23/2015 11:13 AM the picture ca z p p was referring to was a picture of c.a R that Mother carried, out of love, on her keychain, which hung on a hook. next to the "voodoo doll" . Father and·c engaged in a procedure whereby at the time Mother was to receive ca C for her period of custody, they would drive into Mother's driveway,. cs 3 would exit the vehicle, videotaping all the way, either knock on Mother's door and tell her he was not staying or simply bypass the house, and then walk over to the Fireside residence, wait ·for his father and then return to ~reensbur·g. The fact that this was a mere -. charade for court purposes is indicated by the fact that a video ,shows ·that c•• . : . begins videotaping while in the vehicle with his father, that father knows to wait for ca O at the· Fireside . residence instead of simply leaving, and allows Clllllltto have continued access to Fireside by not requiring . . that the code for . . entry ; nto the home be changed from the code that ca Sis aware of, allowing conner·to have access to a safe haven to avoid having to be with Mother. cgpppp's claim of fear of his mother is dtsproven by a video in which Mother atrtempts to direct ca I to get off the phone, having spent a considerable time on the phone with his . father .. In the video Mother is under.standab 1 y frustrated as ·c£ 9 is obstinate in his refusal to get off . the phone and can -be seen· and heard taunting his mother in an obvious attempt to •,,ir'•.1 ··get ·her .to lose her. temper while c ·-····i.s viileotapi'ng~. her:···.:-·····-. . ·:· : .....+: cg R hi mse1 f testified that he uses the video for purposes to 53RD JUDICIAL DISTRICT be used in court against his mother. 'Rli:NC:I!: C:OUNTY tNNSYI..VANIA 85 Circulated 09/23/2015 11:13 AM With regard to the use o~. the video, Father has the obvious ability to prevent c · . from videotaping, even to the extent of removing the phone.from him if necessary but makes no effort to do so. In every custody exch~nge attempted where Father drops c off at Mother's house, there is not one initiative that Father has done anything that- can be observed by any person whereby·he attempts to make c:•• stay with his Mother. Additi ona 11 y, the evidence in this case is compe 11 i.r:19 that cB J wi 11 in fact do whatever his father ·di rects him to do. The .. evidence is clear that Father directs every aspect of ·c 's life. It is. simply unbelievable that c will adhere iockstep to every directive and expectation of Father except as to this one aspect of·his'life relating to seeing his mother. The court finds tryat if Father did in fact direct cg ? to stay with his mother, he would obey his father. The matters before the court include the emergency petition for special relief filed December 3, 2013 as supplemented by the emergency supplemental petition filed January 7, 2014. The issues raised in these petitions are the same issues that wil.1 be considered as part of the determination of the competing claims for modification of the custody order.. Thus, the . disposition of these motions do not require a separate analysis ?ince these petitions addressed what has already been discussed, ,.... , . "the i nabi li.ty ·Of :.Mothe.r to effectuate ·the q.1stody. ··o·r·d·e-r·-:15y : : S3RO reason 9f cm · 's refusal to go to her home and Father's role v JUDICIAL DISTRICT in- bringing that situation about or permitting it to exist. Ffl!:NCE COUNTY NNSYLVANIA 86 Circulated 09/23/2015 11:13 AM The court is required. to separately address the petition for contempt filed April 8, 2014 and the petition for contempt filed September 4, 2014. The April 8, 2014 petition alleges that Father has denied or coerced, conspired or otherwise controlled c p in an effort to deny Mother her primary physical custody; that Father pay lip service to the October 1, 2013 order by dropping cg 1 off at Mother's residence every other Sunday, at which time· c gets out of the car, runs to Father's significant other's r~sidence at Fireside where Father is waiting for c , and they depart; that Father intentionally, willfully and wantonly· · thwa:rts:Mother's relationship with c p; that Father fails to uphold -Mother as a parent that cs 1 should love and respect; that Father blatantly 1:1ndermines Mother's. role as a parent; and that Father speaks in a ·derogatory, condescending, and otherwise inappropriate manner. about Mother to .cg $ in an effort to . ./ reinforce c••t's unfounded, nonsensical beliefs about Mother;· and that Father refuses to communicate with Mother and provide ., her any information about c•• The Petition for contempt filed September 5, 2014 alleges that Father has willfully and wantonly withheld cs: S from the Neshannock Jr./sr. High school where he was enrolled for the 2013-14. school year and, without any authority to do so, enro l Ied ca I in the Hempfield school District in Westmoreland ......................................................... ' . , . · .. ·, . -ccuntv. Father also incorporates by. . r.efe-re'ri'c·e· . ·fo"··'the.:··p·eXf'EiOtf . . . S3RO for contempt filed April 8, 2014. JUDICIAL DISTRICT IRltNClt COUNTY i>NNSYL.VANIA 87 Circulated 09/23/2015 11:13 AM The issue of contempt is addressed in 23 Pa.c.s.A. §5323(9), addressing contempt for noncompliance within a custody order. That subsection· provides as follows: (1) A Rarty who willfully fails ·to comply with any custody order may, as prescribed by general rule, be adjudged in contemRt· contempt shall be punishable by any one or more of the following: (i) imprisonment for a period of not more than six months. (ii) a fine of not more than $500.00. (iii) probation for a period of not more than six months. (iv) an order for nonrenewal, suspension or denial of operating privile~e under §4355 (relating to denial or suspension of licenses). (v) counsel fees and costs. (2) An order committing an individual to jail under this section shall specify the condition which, when fulfilled, will result in the release of that. individual. In order to support a finding of contempt, it must be found that the offending party failed to comply with a clear and specific provision of a custody order, and that the failure to comP1Y w~s intentional and willful. A fin~ing of contempt cannot be supported if based upon an original order. that is vague. Mellgtt v. Mellott, 328 Pa.super. 200, 476 A.2d 961 (1984). A custodial parent's obstruction of the noncustodial ·parent's right to visit the child may serve as the basis of an . prder finding the offending party in contempt. As held in · .· :;·:·; · - ·~E~·g-1 . i··~·h-.::;~·-··E~gi i sh' 322. Pa·. super. 23'4, 4.69 A, 2cf"'"270""'(19'83)"~--·the···oooo• . , -. S3RD obstruction of a child's visits with a parent will not be JUDICIAL DISTRICT tolerated· and a parent who obstructed a child's visits with the fRENC&: COUNTY !!:NNSYI.VANIA 88 Circulated 09/23/2015 11:13 AM other parent was in contempt of an order providing for visitation. rights. Even an honest belief that visits between ~hild and parent waj causing the child psychological harm could not justify the deliberate violation of a court order providing for visitation. English v. English, supra. The court here finds that the specific allegations of the April 8, 2014 contempt Petition cannot form the basis for a finding of contempt. Although the court has clearly indicated that Father is alienating c:•• against Mother, the specific allegations of the petition are either too general and vague or were unproven. AS held in Sutliff v. Sutliff, 361 Pa.super. 194, ·5.22 · A.2d 80 (1987), a party cannot be held· in contempt for failing to "encourage" visitation without a finding that a specific provision of the order was violated and that the provision ·was clear and.definite. such contentions.as allowing cg fto have refuge at Fireside may violate the spirit of the· order, not specific provisions thereof. However, the court finds that Father is in contempt of the October 1, 2013 order by enrolling cs Fin the Hempfield school oistric~ in Greensburg, Pennsylvania. Paragraph 2 of the October 1, 2013 custody order specifitally provides that Mother ·; s awarded so 1 e 1 ega 1 custody of cg S. That paragraph defines legal custody as the legal right to make major decisions ~ffecting. the best interests of the child. Major decisions :~if·;~·ii·:~g.: ''t'he c}ifi"d i° nc 1:ude·· iiduc·ati ori' ahd···:Eidtit-atlon·· ·ts··.· ': . =»: .. 53RD specifically identified in the court order. At the time the JUDICIAL DISTRICT ·october 1, 2013 order was +ssued , c n p attended school in the FtENCl5: COUNTY :NNSVLVANIA 89 Circulated 09/23/2015 11:13 AM Neshannock Township school District, the school district in which Mother resided,. mother having been awarded primary physical and legal custody and was the school district that c S had been attending in recent years. c& I continued to ·attend the Neshannock school District through the end of the 2013-14 sch9ol year. Prior to the commencement of the 2014-15. school .year, Father, willfully, and without authority, and without·the consent of Mother, enrolled C( p in the Hempfield school District in Westmoreland county, the county in which Father resides- Father had absolutely no authority to do this and sucli conduct was in direct contravention of the October 1, 2013·,cu-stody order. Father did not seek approval of the court in enrolling c i~ the Hempfield sch~ol District but simply took it upon himself ·to do so .. In accomplishing this enrollment, Father represented on an enrollment form that he had custody of cg ff, which is in contravention of the October 1, 2013 custody order. The court.finds that Father's actions in this regard were intentional and willful. The court finds that the conduct of Father violates Paragraph 2 of the October 1, 2013' custody order. CONCLUSION For the forgoing reasons, the court will issue an order ·consi~tent with this Opinion which will dismiss the' claim of -each . party -for modi fi cation .of fh°e."'ex,s"t"i n:g-·c(fs't'c>,ay'""O"rder"·of··-"":-··•oo .. , OO> 0 ... ,,.••M•o0 .. 0,Ho,o0• 0 '"' o• ~.............. • ....... ~--·· 0 . ' '.:. -, . October 1, 2013 as to primary physical custody, partial custody 53RO JUDICIAi. DISTRICT and legal custody, but wi'll [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3132490. Public record. Not legal advice.