L.L. v. J.R. v. J.A. (memorandum)
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J-S86029-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 L.L. IN THE SUPERIOR COURT OF PENNSYLVANIA v. J.R. Appellant v. J.A. No. 993 WDA 2016 Appeal from the Order April 15, 2016 In the Court of Common Pleas of Mercer County Civil Division at No(s): 2008-2899 BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.* MEMORANDUM BY MOULTON, J.: FILED DECEMBER 29, 2016 J.R. appeals, pro se, from the April 15, 2016 order of the Mercer County Court of Common Pleas granting sole legal custody of J.R.R. (“Child”) to L.L. and granting partial physical custody to J.R. We affirm. J.R. and L.L. are former domestic partners and the parents of 15-yearold Child. The trial court set forth the lengthy procedural and factual history of this case1 in its April 15, 2016 custody order, which we adopt and ____________________________________________ * 1 Former Justice specially assigned to the Superior Court. The parties have been litigating this custody matter since 2008, including three appeals to this Court. J-S86029-16 incorporate herein. See Findings of Fact, Conclusions of Law & Order, 4/15/16, at 1-17 (“Trial Ct. Order”). In this appeal, J.R. raises the following issues: A. Did the Court err in ordering sole legal custody to [L.L.]? B. Did the Court err in removing [J.R.] from all access to the minor child’s academic, social, medical, and therapeutic support services while making it impossible for the parties to co-parent as a family unit with no direct structures? C. Did the Court err in not taking into consideration the Guardian ad litem’s recommendations as being beneficial? J.R.’s Br. at 7 (suggested answers omitted).2 We review a trial court’s custody order for an abuse of discretion. In doing so, [w]e must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, 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 ____________________________________________ 2 The issues listed in J.R.’s statement of questions involved differ from the issues presented in the summary of argument and argument sections of her brief. In fact, J.R. does not specifically address the second and third issues in her argument section. In any event, all three issues essentially challenge whether the trial court properly granted L.L. sole legal custody of Child. Even if J.R. had properly argued her second and third issues, we would affirm on the basis of the trial court’s Pennsylvania Rule of Appellate Procedure 1925(a) opinion, which we adopt and incorporate herein. See Rule 1925 Opinion, 8/12/16, at 1-8. -2- J-S86029-16 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. D.K. v. S.P.K., 102 A.3d 467, 478 (Pa.Super. 2014) (quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011)). Section 5328(a) of the Child Custody Act delineates 17 factors that a trial court must consider when awarding any form of custody. See 23 Pa.C.S. § 5328(a). Here, the trial court separately addressed each factor in its custody order and explained why the majority of the factors weighed in favor of granting sole legal custody to L.L. See Trial Ct. Order at 19-29.3 We agree with and adopt the trial court’s reasoning. At the conclusion of its order, the trial court further explained: What is . . . clear to the Court from years of litigation between the parties is that the shared legal and/or physical custody arrangement between the parties would be totally adverse to the well-being of this child. The guardian ad litem clearly documented how the stress and anxiety levels of this child increase because of the conflict between [L.L.] and [J.R.], which the Court finds is primarily precipitated by [J.R]. The Court also finds that the only hope for this child to achieve growth in her medical, mental and social condition is to have one person solely in charge of all decisions pertaining to her wellbeing. [J.R.] has already demonstrated throughout the prior eight years that her methods and approach have not worked and in fact have been detrimental to this child. Thus, the Court finds that it is in the best interest of this minor child that [L.L.] have full legal and physical custody ____________________________________________ 3 Although the trial court did not specifically discuss section 5328(a)(2.1), relating to child abuse and the involvement of child protective services, that factor was not relevant to this case. See Trial Ct. Order at 20. -3- J-S86029-16 of her and that the involvement of [J.R.] be kept to a minimum because of her overpowering influence and control of [Child], and the battles she has created over the years, all to [Child’s] detriment. Id. at 29. We conclude that the record supports the trial court’s decision to award L.L. sole legal custody of Child. Order affirmed.4 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/29/2016 ____________________________________________ 4 In the argument section of her brief, J.R. also asserts that the trial court failed to promptly issue its custody decision in violation of Pennsylvania Rule of Civil Procedure 1915.4(d). However, because J.R. failed to raise this issue in her Pennsylvania Rule of Appellate Procedure 1925(b) statement or in her statement of questions involved, it is waived. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b) statement will be deemed waived.”); Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”). -4- Circulated 12/16/2016 08:11 AM IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA CIVILACTION- LAW No. 2008-2899 ,f'~(\ ..J rU \_\, Defendant u :::0 oc: ::0 --;...;._, I!i~ ::c :r: o..,,_ z,,.._. ow Additional Defendant n :i :-I- }>,) ::::tJrr; FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER - This heaviiy litigated custody matter has regularly been before the Court !! !lsince j! ., July of 2008_ The Additional !i biological father and has not been Defendant. is the child's involved in the custody proceedings because he i• 1i is serving a life sentence for first degree murder. The bulk of the litigation has !! J/been between the two former domestic partners in this matter. Plaintiffii q l! and Defendant Defendan-is the biological mother of ;; I; the minorchild and was granted fulf custody with supervised visitation only in ii i! Plaintiff .....,_y l! /I with H ~ the initial custody Order dated February 20. 2009. Unsatisfied that Order. -filed an appeal to the Superior Court which was denied. I: 1! Ii l1 n i Defendant- subsequently relocated to the Cincinnati, Ohio area H n !'.{without prior consent) with the minor child. After relocation hearings were held, u l"ithe Defendant/mother was ordered to return the child to Mercer H ;! n lldated August 24, 2010. County by Order Defendan~iso appealed that Order, and it was i; ii! affirmed on appeal, the Court again entered an Order on July 8, 2011 for her to ,; iq return the child to Mercer County by August 15, 2011, which she failed to do. •i !/ Following a contempt hearing, Defendan- was found in willful contempt of ii !iCourt was sentenced to Six months of incarceration, with purge conditions, and a ;! :; :·:; bench warrant Was issued for her arrest on March 29, 2012. Plaintiff- then filed a petition to modify custody to obtain primary ii i physical custody of the minor child and after a hearing held in the absence of J!Defendant-n October 2, 2012, Plalntiff~as granted temporary !) !! primary physical custody. All of these Orders were ignored so Plaintiff registered [them in Ohio and eventually obtained an Ohio Order on August 23, 2013 for the ;1 ,l (return of the child. Defendant -wasapprehended with the child near Cleveland on December 20, 2013 when police pinged her cell phone. Another temporary custody Order was entered on January 8, 2014 granting temporary primary physical custody to Plaintiff -subject to periods of supervisedpartial physical custody in Defend an- supervisedby the Mercer dou_ntyfghildren and Youth Services agency. Defendant-began serving the six month contempt sentence and was released on February 21. 2014 after purging her contempt. services in Plaintiff's The Court also ordered CYS to implement protective home on behalf of the minor child. 2 CYS was eventually \idismissed from the case on December i i conducted 'I 15, 2014 and the supervision was then with whom Defendant-resided by with in Mercer ;: " i! County. The supervised visitations were ultimately moved and by Order dated ii i! i! March 24, 2015 the parties agreed to a partial physical custody schedule in the H n i Defendant/mother :i litigated which the parties have been primarily following while they the issue of primary physical custody. il q Both parties filed motions to modify existing temporary Orders each seeking i; primary physical custody and they appeared at the following custody hearings, pro :;se, on December 1, 2015, December 9, 2015, December 30, 2015 and January 12, !!2016. Accordingly, !I Findings in light of this background, the Court makes the following of Fact in addition to prior Findings of Facts made throughout the past l! !i i eight [! . years: FINDINGS OF FACT 1. With the consent of the parties, LSW, was appointed ii :)as guardian ad litern for the minor child, H . H 2. i, and 19. ihs born Ms. -is 38 years old, married and with two children, ages 16 Ms. mils a licensed clinical social worker and her primary experience as a mobile therapist and behavioral special consultant. i Degree in Counseling and she l! i outpatient and inpatient counseling has worked for approximateiy 15 years in with a focus on children. 3 She has a Master's !i H Ms. -had extensive contact and interaction with the subject 3. ! minor child in this matter as weli as Ms.-Ms.- and various providers :1 [of care and school authorities pertaining to the minor child. 1l 4. :I (with the p The Court adopts the report of Ms.-which is Joint Exhibit No. 1 exception of her recommendation). :!1: ,, Extensive custody litigation has been occurring regularly in this case :i after Plaintiff and Defendant broke off their former domestic partnership in 2007. " r- o. After many court battles and a lengthy initial custody trial, Defendant -was awarded full legal and physical custody with supervised visitation in it IJ Plainti~ursuant to the Order dated February 20, 2009. ll ti 7. Defendant- Ii Memorandum appealed that Order which was affirmed by a Opinion of the Superior Court on December 22, 2009. i; 8. Defendant~elocated the Cincinnati,Ohio area within a few to :i ii months i' of the Superior Court's ruling without leave of court or permission from any ;; i other party, 9. Defendant- thwarted any and al! efforts of the Court and Plaintiff -nd the child advocate appointed by the Court from the timeof separation until she relocated to Ohio to promote and have meaningful time spent between PlaintiffmrJind the minor child. 10. A relocation hearing was ultimately held and the Court denied relocation by Order dated August 24, 2010 and directed that the child be returned Mercer County. 4 11. Defendan-promptly appealedthe reiocationOrderwhich was stayed leaving the February 20, 2009 supervised visitation in place. which was to occur in Mercer County. 12. It was rare that the supervised visitations occurred after relocation since the child was five hours away from Mercer County. 13. Superior Court affirmed the deniai of relocation on March 28, 2011 directing the child to be returned by August 15, 2011 which did not occur. 14. Defendant- was held in willful contempt and sentencedto six . months in the Mercer County Jail with purge conditions by Order dated August 29, ::2011. :., '\ 15. Defendant-1l,erved one day in jail and the next day the Court i! suspended the sentence so iong as Defendan-eturned the minor child by :! li ii (! l:October 16, 2011 and give the P!Hintiff-156 hours of makeup time. :,. : 16. A contempt review hearing was held via telephone with Defendant :i !-on October 20; 20'11 and she had not fulfilled the purge conditions and had li not returned the child to Mercer County, but was granted an extension to n i11 November 21. -. 2011. ;1 ); i- 17. A final contempt hearing was held on March 29, 2012 and Defendant failed to appear, and the Court found she failed to fulfill the purge ii !!conditions, it i; . i seeking n ;i ' and the six month jail sentence was reinstated and a bench warrant was issued for her arrest. 18. ,,: including returning the child. Plaintiff-filed a petition to modify the 2009 custody Order primary physical custody and a hearing was held on October 2, 2012 and 5 Defendant-failed to appear. but the Court received testimony and exhibits and made extensive Findingsof Fact, and awarded primary physicalcustody of minor child to Plaintiff on December 31, 2012. Those Findings of Fact and Conclusions of Law weighed each of the 19. 16 custody factors, and those December 31, 2012 Findings and Conclusions of Law are incorporated herein by reference. 20. The State of Ohio refused to honor the bench Pennsylvania's custody Orders, so Plaintiff- warrant and registered the custody Order in the appropriate county in Ohio which held hearings and affirmed the Order on or aboutAugust 23, 2013, but Defendan-avoidedexecution the Order to of return the child when attempts were made by the Ohio authorities to transfer custody. Plaintiff~as unable to recover from her herniated disc injuries 21. on her job and therefore stopped working in October of 2013 and relies in part upon her domestic partner of several years for support. Lakewood, Ohio police (which is located near Cleveland) located 22. :i Defendant- with the minor child and contacted Plalnti~ho obtained d i physical custody iJ Temporary :! 23. of the minor child on December 20, 2013 pursuant to the Custody Order dated December 31, 2012. The minor child has been in the temporary primary physlcai custody : of P!aintiff-ince December 2013. 20, 6 24. The Temporary Custody Order also directed Mercer County Children and Youth Services to provide protective services for the child in PlaintiffmJI home which they did prdffifjtly. 25. The temporary Order also directed Plaintiff- establish medical to Immediately care for the child's various needs and schedule medical appointments and therapy appointments. 26. CYS monitored the minor child's physical and emotional needs through regular visits from the agency's nurse and by obtaining and reviewing various medical records. 27. The temporary Order also permitted Defendant - to have supervised visits with her minor daughter by CYS until further Order of Court 28. Defendant-surrendered herself to the custody of the Court on January 8, 2014 at which time a hearing was held in the presence of all parties and CYS. and Defendant - was committed to the Mercer County Jail to serve the balance of her six month contempt sentence imposed August 29, 2011. 29. Defendant- fulfilled her last purge condition and was released from the Mercer County Jail on February 21, 2014 after serving about 44 days of a six month sentence. 30. After being released from jail, Defendant-remained Mercer in Countyand resided with her friends, and and wife, at their house at Mercer, Pennsylvania locatedin the Mercer SchoolDistrict. 7 husband which is 31. Mr. and Mrs .• re in their mid-40's and have one child who is 12 years old and is a special needs child with a birth defect known as George Syndrome causing various developmental delays, 32. They reside in a raised ranch home and Defendant- resides on the bottom level of the home free of charge where she has one bedroom which she shares with the minor- child in this matter dur1ng her periods of partialphysical custody: 33. Defendant -hd the-now each other from various therapy programs that their two daughters were involved in several years ago. 34. Mr.-employed and traveis throughout the week and is out-of- town roughly 200 nights per year and ls home on weekends. 35. Mrs-is employed at the outlet malls butis home a lot. 36. The- and Defendant-and the subject minor child get along well together and the La its do not know Plaintiff- and not involved are in custody exchanges. 37. Defendant- expressed no plans to live anywhere else in Msresr County in the near future ,and her residence is about 23 miles from the homeof Plaintiffmlll 38. Defendant -gave no explanation as to why she does not reside closer to Plaintiff-ikethe partiesdid before she left the state with the child. 39. Defendant-wants to enroll her minor daughter in the Mercer School District ff she receives primary physicalcustody. 8 40. When the minor child began residing with Plaintiff-tn December 2013, the subject minor chiid has been in the primary physical custody of continuously and the Court only permitted supervisedvisits with Defendant- Defendan~nd oversight by CYS to assure the safety of the child because of her extensive medical record and Defendant- contemptuous behavior. Supervised physical custody between the child and Defendant-continued until Defendant-proved to the Court that she had a Pennsylvania driver's license and had registered her vehicle in Pennsylvania, and obtained a job in Mercer County. See Order dated December 15. 2014. 41 On December 15, 2014, after a year of oversight. Mercer County CYS was granted leave to withdraw from this custody case, provided; however, that would be the supervisor of Ms. -periods of partial physical custody. 42. partial By Order dated January 30, 2015, the supervision of periods of physical custody was lifted since Defendant -obtained a Pennsyivania driver's license, registered her vehicle in Pennsylvania and obtained employment in Mercer County., 43. Defendant-eriods partial physical of custody as set by the March 24, 2015 Order permit her to have her daughter every other weekend on Saturday mornings from 10:00 a.rn. through Sundays at 7:00 p.rn. and every Tuesday after school until 7:00 p.m. A Slightly expanded schedule was set for the summer of 2015 by the Order dated May 28, 2015 which reverted back to the March 24, 2015 scheduling order when school reconvened in September of 2015. 9 ·44. .-...,, When the subject minor child was placed in temporary physical custody of Plaintiff- in December of 2013. the child was enrolled in the Sharon public school system where she remained until the parties agreed to put her in a private school, St. Stevens, Which recently opened in Sharon, Mercer County. Pennsylvania and is specially desiqned to handle the needs of autistic children. 45. Since residing with Plaintiff- the subject minor childno tonger , needs an orthopedic strolter/wheetchair, had her GI tube removed and now feeds !,herself using silverware and eats regular food. In addition, Plaintiff- [encouraqes the child to become as independent as possible by bathing, dressing n :: and feeding herself: 46. The subject minor child's medical Issues have greatly improved since , residing primarily with Plaintiff-since December of 2013. Notably, the minor child is in good general health and' is m no need of speciauzed medical treatment. 47 The minor child currently has diagnoses of anxiety disorder, autism ·. spectrum disorder. lack of coordination and other Symbolic dysfunction for which she has weekly occupational therapy, physical therapy, speech therapy, outpatient mental health counseling, medication management, and family based services. 48. The child attended the sixth grade for the 2014-2015 academic · school year and made significant improvements despite her global developmental delays which impact her socially and lead to poor communication. 49. Nonetheless. due to the conflict between Ms.-and Ms.- the child's anxiety and stress revels vastly increased as Ms. - 10 became more involved again in her Hfe resulting in adverse reactions by the child to going to school. 50. The child again attended the Sharon public school for seventh grade for the 2015-2016 school year but was missing halt of the school year leading to her placement at St. Stevens. 51. Several truancy violations were brought against the minor child and Ms. -and various hearings were held but Ms.~as never found guilty. 52. Truancy support services were put in place. 53. Sharon School authorities noticed that the child's bouts of anxiety seemed to correlate to when she talked with her mother or was going to have a visitation with her. 54, Defendant- voiced disagreements at meetings over schooling alternatives in the presence of the minor child and according to the minor child, Ms. - told her that Sharon Schools were not right for her and she was disappointed that she was not being Cyber schooled as in Cincinnati. 55. While at Sharon Schools the child had an JEP with learning support and made improvements when she attended. 56. The minor child has difficulty expressing herself, regulating her emotions which iead to aggression and significant anxiety exacerbated conflicts between Ms.57. by the and Ms- The child has difficulty resolving conflicts. making decisions and • lacks age-appropriate problem solving skills and takes many of her cues from her · mother. 11 58 When there is significant stress and conflict, the minor child shuts :!down on an emotional level and resorts to a fight-flight or freeze response. i; 59, The minor child is visibly anxious when both Ms. - and Ms. [-re present together. ;, 60. The minor child feels forced to choose between the parties. 61. The minor child is very loyal to her mother and has difficulties .aoknowledqinq positive interactions between herself and Ms.-despite the obvious evidence of their dose bond. 62. The subject minor child would prefer to live with her mother. 63, Ms. - andMs.-have different parenting styles and approaches for discipline. 64. Ms.911i1as made many mistakes in parenting since the child has been with her since December of 2013, based m part, on the substantial barriers placed in the minor child's mind between Ms~nd the minor child. 65. i and ji Ms- has obviously alienated the affections between Ms .• the minor child in the past eight years and continues to try and control and/or manipulate aH aspects of her daughter's life and the contacts she has with Ms. if :. ·)i . !i 66. H i ls very sensitive and loves animals. i the child has i the ,i . The minor child is artistic, inventive and creative, and loves to swim, The truancy problems have decreased since been at St. Stevens School and she appears to like the school and people. 12 . ..., has resided at Plaintiff - Sharon. Mercer /::ounty, Pennsylvania since about 2007 and currentlyresides with her partner, who is 45 years o!d and works as a traffic control specialist ":With Area Wide' Protective Services Monday through Fridays from 7:00 a.m. to 3:30 p.m. and ts an cat! on weekends. 68. Ms -s m 69. Ms.-boards a horse in nearby Jamestown, Pennsylvanra and good health and has no children. 'the minor child accompanies her and has ridden the horse (once without a helmet) and the minor child likes to be at the farm. 70. Ms.- 71. Ms.72. has no relationship Defendanwith pays household bills. the Ms. -overheard Oefendant-talkingon the phone the to child saying that they are dirty and live in a ghetto and that soon we will not have to deal with these people. 73. Ms. - helps with some parenting and participates Family in Planning Services. 74. Pialntiff, is 48 years of age and her home is a two- story house that she rs buying from her brother on an Article of Agreement for $340.00 per month. 75 The house has three bedrooms and the minor child has her own, but prefersto sf eep with Plaintiff76 They have a double lot with a fenced in yard, an above ground · swimming pool, a trampoline and a club house for the rrunor child. 13 ..... - 77. The minor child gets angry with Ms .• and upset when she does not get her own way, and Ms.-riesto give her time and space. 78. The minor child likes to fish and ride her two-wheel bicycle and go to the family camp in Eldorado, Pennsylvania where they hike on some weekends. 79. Ms. - suffers from spinal stenosis and a back injury and last ;iworked at Dean Dairy in August of 2013 and has applied for $81. 80. There have been many email and text message exchanges between i; Ms.9lland Ms __ some of which have been read by the minor child. Ms. ;\-attitude and viewpoint of Ms. - has remained constant throughout i' i the last eight years as indicated by Plaintiff's Exhibits ·14, 16 and 21, for example; : whereMs. -has calledMs.-an "f-ing cunt" and referred to Ms.as a "court-ordered parent" until you are no longer designated as such, and using other profanities. 81. Ms.-and Ms.~ot into a physical altercation in the child's presence during one of their custody exchanges resulting in each of them being charged with disorderly conduct. 82. After gaining custody of the child, Ms. - promptly obtained various medicalrecords and reports from doctors the child was goingto in the Cincinnati, Ohio area and she then established all of the necessary medical and other therapy and services for the minor child in Mercer County, Pennsylvania. 83 Piaintiff- told local providers that Defendant - may be suffering from Munchausen By Proxy Syndrome (a condition suspected by this Court and others throughout this case) which caused those providers to be very 14 skepticat of f-111s. - intormation that she attempted to provide about the child's treatment history and future needs. 84, i- :jsetting Ms. - had a difficult time with school and various providers in up :;1 uustlng relationship. in part, by information given to them by Plaintiff l[. 85. Tile minor child first attended West Hi!! Elementary School in Sharon when she returned to Pennsylvania and according to the school principal and the guidance counselor; ner attendance declined dramatically after Defendantresumed litigation shortly after she got out of jail. See Plaintiff's Exhibit 34. 86. The child became defiant and hao a negative attitude towards school and reported that her mother (Defendant- told her this was not the right place for her and that she should be Cyber schooled. Plaintiffs Exhibit 34. The minor child also advised that she would be fine with attendinq West Hill if her mother supporteo tnat school 37 The minor child reached important developmental benchmarks at West Hill Elementary in her first two months of school there, which she was not able to reach In the prior 11 years. Plaintiff's Exhibit 34. 88.. This chiid also demonstrated to the school that she "is a bright, ' courageous and taiehted indlviduai." Plaintiff's Exhibit 34. 89. 1 PJa1J1trff-s extended family Mercer County including her in grandparents, ~vo uncles, three aunts and various cousins. but Deferidan- has no relatives. in this area ,-..-·- 90. has no significant Defendant - ties to Mercer County, Pennsylvania. 91. During the four years that Defendant-ad the minor child in the Cincinnati area, they resided with her domestic partner, 48, at age Hamilton, Ohio. Ms.-and Ms.-have been domestic partners for about seven years but have not resided together for the past two plus years wheh Ms ..... eturned to Mercer County, Pennsylvania, but they intend to rernam partners. 92. The minor child has a close bond with Ms.-. 93. Ms. - ts employed and works approximateiy 50 to 60 hours per week and is unable to travel to Mercer County very often because of her work. 94. Ms. - tries to travel to Mercer County every two to three months. 95. Defendant - seeks tun iegaf custody of the minor child and does not want Pla1ntiff-1nvoivedm any decision making for this minor child and claims that she would stay in Mercer County. 96. Ms.-wouid remove the child from St. Stevens Schooi and put her in the Mercer School District closer to where she now lives and would remove her from outpatient mental health treatment at the Community Counseling Center because of pnor conflicts and would instead use St Anthony's Point and have the child undergo trauma therapy. 97. Defendant-would removethe minor child from the Capable Kids Treatment Program where she receives PT, OT and speech therapy and 16 would take her to the Sharon Hospital programs where she was earlier in her life or to New Castle which is in Lawrence County, 98 Ms, - would also change the pediatrician hack to the child's original doctor or would use a different pediatrician. 99 Ms.-wouid have the child continue to go to Children's Hospital in Pittsburgh for dental treatment so the child life wouid be involved and would continue with doctor appointments in Pittsburgh for the child's ears and , gynecological needs. 100. V\/hi!e Defendant -was in Cincinnati for four years. Plaintiff -travelledthere numeroustimes to visit with the minor child but was refused JI access to her by Defendan101. VVhile in Cincinnati, Defendant- was Court ordered bring the to child to Mercer Countyto see Plaintiffllllwhichonly happened twice within the first six months of that four-year period. 102. The guardian ad litern disagrees with Defendant - and recommends that no significant changes should be made regarding treatment providers and doctors for her education at the time of the hearing. 103 Ms. - was charged and found guilty in Ohio of custodial interference, a first degree misdemeanor, and received a 175 day suspended jail sentence; CONCLUSIONS OF LAW Detendant/rnother now seeks to resume the full physical and legal custody Order she had after the initial custody hearing in 2009 which she appealed. She 17 !!still believes that' it is not in the best interest of thrs minor child that Plaintiff. :j ,1111f11ave any say whatsoever regarding the minor child's education, medical ,:and/or any Other develcpmentat areas of the child, but should be permitted to have [visitations on some weekends. it should. .be noted that the Court's intention in ' . . . . . . . . ; :2009 was that the custodial rights of Plaintiff would be expanded after :\the Court was satisfied with some supervised visitation of her capability and appreciation for the child's medical conditions, and that Ms. - would eventually have shared iegaJ custody rights and expanded unsupervised partial custody to this minor child. However, the extended appeal by Defend an-of the rnitial custody deterrmnation put that plan on hold for a substantial period of in addition. Defendant - failure dunng that appeal period. and throughout the time of the initial custody proceeding, to make the child available for the supervrsee visits also thwarted the efforts of the Plaintiff to develop her relatrcnshrp •:;.11th the.rrunor .-::hikf. Shorrly after the appeal was denied. Defendant -moved without permission to the Cincinnati, Ohio area to be with her new domestic partner. That relocation was eventually denied by the Court and the child was ordered returned to Mercer County. It wasn't until four years iater to be In December of 2013, : and thousands of dollars later for legal fees for custody actions ,ri Pennsylvania and Ohio . that the chilo was finally returned to Mercer County, Pennsylvania when the policelocated the child outside of Cleveland, While 111 Ohio, Ms. -was 'supposed to be transporting the child to Mercer County. Pennsylvania for visitations. but only a handful occurred. in addition, despite Ms. -claim 18 :i !1 ,! ; :i '.i !!that Ms.-could n see the child anytime ff she drove to Cincinnati, each time Ms, ~erit to Cincinnati. the visitations never occurred. n ,, I! Furthermore, many of the extreme medical conditions offered by Defendant n IJIIIIover the ii years to excuse the failed visitations with Ms-and to !!maintain that the child should be in her care, have now been negated. :!minor child still has some developmental ,; While this delays, is autistic and needs various '.i i levels of treatment and a special education program, under the care of Ms.- 11 (! her medical condition has improved dramatically along with the child's ability to lJ perform independent tasks such as feeding, bathing, going to the bathroom, r; !!walking and clothing herself. nii H i There have been numerous contempt and special relief hearings in the last !! lj several years between the parties that have not been detailed or outlined in the i! Findings of Facts that are also si~nificant in the Court's determination of what is in i!the best interest of this minor child in this very unusual custody case. in no time \! ;· li throughout this Court's 13 plus year career, has it ever been necessary to actually \1 )! sentence a mother to Jail. Hence, in line with the Court's duty to evaluate each of ! the li 16 factors under the custody statute. the Court makes the following Ii observations: !l :; {1) Which party is more likely to encourage and permit frequent and !l i: continuing contact between the child and anothe party. r The record is clear beyond a shadow of a doubt that Plaintiff- is the oniy party in this custody battle who is likely to encourage and permit frequent and :f continuing contact between the child and another party. While the child has been 18 Plaintiff's µnys1cal custcdy. -:;ni=:' nas permitted the mother and her significant other to have phone contact with the cruld on a rer:1ular basis even though it may have been monitored at times. She nas also tol!avve;j the custody Orders substanuallv U&t;pite the var.ous orobiems created with the rancor between her ::andMsWhiie Ms -has been reluctant over the past two years to allow Ms. 111111 to travel outside cf Mercer County with the child . it is based upon the ;; ,._- realistic; concem that she wiU not return the child to Ms. if The history in the iipast eight year~ witn the substantial non-cornpliance by -with Ms. every ;i . . ii custody Omer. and the efforts that it took to have the child returned to Mercer . ;; . . . . . . i !! County, justify Ms. - reluctance to oerrnlt much travel outside of Mercer ;•. il County. Accoroinqty, this factor is completely 1ri favor of ii nir::: present and past abuse committed by a party or member of (2} !i the party's household, whether them is a continued risk of harm to the child d \i or a11 abused party and which party can better provide adequate physical 1; safeguards and '3upervision of the child. p :! Abuse is not a major factor in this custody litigation: i! however. it has h! ll ljpeiiodically occurred and often in the presence of the minor child, The physical or i i! verbal entarqrement between the parties has been ongoing and is likely to i; !i continue to occur particularly ·r when they are in a shared legal custody setting. Obvrcusiy, abuse takes many forms The minor physical abuse that has :l il occurred between Ms. -and Ms.-s infrequent and usually only occurs H !i when one or botb parnes become extremely frustrated and/or angry. 2(J . •-..,~. Furthermore, the attitude and mindset of Defendant-s as a person of persons around her and who rs totally manipulative and totally controlling particularly her child's life. These traits are indicative of a form of abuse. Ms. -has demonstrated in texts and emails and her comments to Ms.-over the years that she has the utmost disdain for Ms __ and will do everything in her power to hmlt her access to tnts chilc. She does that primariiy by manipulating people, places and events regarding her child's life. The Court also views the extent of Ms.-manipulation over her rnmor daughter as being overreaching as well. benefits to Ms._..nowledge her approach is smothering and control Whiie there are many of her child and the various treatment courses, her daughter's independence and growth. In this Court's mind, it is borderline abusive. (3) The parental duties performed by each party on behalf of the child. Both parties are quite capable of performing parental duties and this factor is therefore even (4) ThQ negd for stability and continuity in the child's education, family life and community life. This minor child needs stability and continuity with regard to her education. family life and community life. except it was always solely To an extent, Ms. - provided that to her on Ms.-terms andconditions. Furthermore, Ms.-has demonstrated with her relocation, failure to return to Mercer and County. a firm belief that only she knows what is rn the best interest of this child 21 ii [ano it doesn't matter whether a Judge, or a significant other, or a physician, or 'i !)therapist or educator tells her otherwise. •' . Stated simply, it is her way or the i highway. " :: it is also ver1 likely that Ms-![arrangements are only temporary. will relocate again since her housing She plans after receiving full physical custody ! :; [to change the child's school district. medical providers and counselors. Obviously, •I . i; )!this will give Ms.-a fresh start to take control once again of an aspects of ilher child's life l: i: On the other hand, Ms .• has iived ln the same house and has had the ( [same domestic partner for about seven years. 1,,iiittle change m her lite except for her injuries Furthermore, she has had very on her Job. Moreover, she has very at i:1ittle drama in her life, except that caused by Ms Moreover, as pointed 'lout by the guardian, this child needs to be insulated from conflict, and could thrive i;in a stable setting. Her need for stability is critical to reducing her stress and ;ianxiety which w!ll lead to quicker and more complete development of this child. in «short. this is a critical factor in this child's iife. (5) ThQ av~ilability of axbmdod family. Ms. -has noextended family in Mercer County orin the surrounding Ms. ~n the other hand. has grandparents. ji aunts and uncles and cousins m this area as well as her domestic partner of seven years who is famiiy to i, liMs.n . (6) The child sibling relationships. 's There are no sibling relationships in this case 22 (7) The well-reasoned preference of the child, based on the child's ilmaturity 311d judgment. ii ,. ; The preference of the mmor child in this case is clearly that she wants to be l;with her mother, However, this position . .~1as totally predictable and expected given r· .:the overbearing ;· dominance ner mother has had on every aspect of her life [parttcutarty With whom sne snoulo live with, where she should go to school and r ' iihow she snouio view other people particularly Ms.. This child's viewpoint is :;to an extent the reflection of her mother's attitudes. :1 ;! The preference of the child is not well-reasoned. It is elem from the report ii ,; !iof the guardian ad Ftem, and from this Court's listening to the minor child, as weli -! i !; as the testimony of all the other witnesses including school personnel through (documents. that this minor child because of her developmental delays is not i" !:capable of making a well-masoned decision on such complicated areas. Moreover, '! she appears to simply repeat the position of her mother on cntical issues since she (has a strong desire to please her mother. Thus. the preference expressed by the minor child bears little weight with ,.i [thrs Court under the circumstances she was placed under for the past decade as ,l :; !! well as her developmental delays and the alienation of her affections for Ms(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety !imeasures are necossary to protect the child from harm. This is the first case in this Courts 13 year career of sucn a blatant effort oy , a parent to turn the child against another parent 23 In fact, Defendant- [throuqh her conduct and mindset over the last eight years has proven her promise q !!made to Ms -th a writing prior to the filing of any custody proceeding i!between them, that if Ms.-ook her to Court, she would "never ever sign ;· [anythinq that . gives you parental acknowledqrnent; visitation or 'rights or ti . . i: [responslbllitles' ... L \! ii i!being.'i I will fight you with all I am worth with every core of my Plaintiffs Exhibit 9 from the initial custody proceedings resulting in the r: '.i i:February 20, 2009 custody Order. ;, lllllalso promised fVis. ~ Pnor to that irutial custody proceeding, Ms. writing that the "second you serve me with \( i anythh1g, is the second you will no longer get to see her or talk to her or me ip until you hold 11 an Order that says different.n Id. Ms.-stm continues to denigrate Ms.mllverbally to the minor child L j; !!and in emails to Ms-and/or texts. For example, Ms.-has told her !I [!daughter that Ms -s the enemy, the court-appointed person, kidnapper. etc. n i Ms.-aiso tells herdaughter that someday they will be freefromMs- i: [i and she wH1 not have to do anything Ms.9llasks of her. in conclusion. this is a dear cut case of parental alienation by Ms. - , ii I/against l\ils.ll9lland this factor is weighted hagviiy against Ms. n The !i i Ohio authorities seem to agree since d ; she was found guilty of a misdemeanor J,i.offense of custodial interference i: {9) Which party is more likely to maintain a loving, stable, d !! consistent and nurturing relationship with the child adequate for the child's I' \< ji emotional needs, H 24 Ms. - relationship \Nith her dauqhter that the Court has come to learn ard appreciate over the years is extremely consistent because she totally dominates evervt\lmg that. her ctiild rs mvoived with. However, this domination and control is. not nurturinq because :t rs stifling the child's growth including basic human functions such as reeding herself going herself, dressing herself etc Ms. - to the bathroom herself, bathing also stifles the development child's emotional needs by making her totally entrenched of her in the desire to please her mother only. it aiso appears that many of the medical exarninatrons, doctor's visits and treatments over the years by· Ms,~f her minor daughter are very questionable Accordingly, H·11s Court takes the viewpoint that Ms. - professed love for ner daughter is stilted, self-centered and damaging her child's development. On the other hanq,v.;h\1E.' she has beer, in the physical care of Ms.since Df::cember or 2013, the cnitd has no major medical problems and, according to the scnoo: and her counselors and treatment substantia: unprovernents in her life. 'vVhile with Ms- providers. she has made she new feeds herself and uses rnguiar s,iver.,vare, b::nhe~.: harsalf. getg: dressed on her own and goes to the bathroom on her own, and no ionger needs a G: tube. Ciearly independence is thriving under the imperfect parentinq ot Ms. - her partly because Ms.-s trying get the minor child to become independent and to to grow on her own undertheguidance of Ms.-teacriers and various medical providers as opposed to the smothering, control and manloulation by Ms.Therefore. this Court finds that Ms. - is definitely more likely ta maintain a 2S loving, stable, consistent and nurturing relationship with this child that will foster growth in aJI areas of the child's life. {1 OJ Which party is more likely to attend to the daily physical, emotional, developmental, Both parties how they go about (11) will educational and special needs of the child. attend to the daily needs of this child. but tlle question is it The proximity of the residences of the parties. The parties live 25 miles apart When Ms. _.,as released from the Mercer County Jail, she chose to live with people she knew on the other side of Mercer County. She gave no explanation as to why she did not try to live closer to Ms.-or in the same school distnct. Ms.-hasno prior experience with the Mercer School District or with any medical providers in that side of the county. Thus, Ms. - choice of temporary housing has created a short distance barrier between her and her child. the child's school and medical providers. {12) Each party's availability to care for the child or ability to make appropriate child-care arrangements. Both parties are equally avauable to care for the child and have equal ability to make appropriate child-care arrangements. Accordingiy, this factor has little bearing on the ruling in this matter. (13} The ievel of conflict ability of the parties between the parties and the willingness to cooperate with one .arrother, A party's effort and to protect a child from abuse by another party is not evidence of unwillingness orlnability to cooperate with that party. 26 There has been substantial conflict between Ms.throughout the past eight years. Ms. - and Ms.- has been very willing and able to cooperate throughout years with Ms.the However, Ms-has only occaslonally been willing and able to work with Ms.9lleven 'though there have been times that she claims that she is willing and able to cooperate. Her conduct. however, speaks volumes as well as her continuing attitude against Ms.involvement with her minor daughter. parties which has been witnessed Given the continuing conflict between the over the years by the minor child, and the significant stress and anxiety levels created on this minor child as a result, it is clear that the cause and effect of that conflict on the minor child is not in the child's best interest and must be reduced as much as possible by limiting contact between -and Ms. MsIt appears clearly to the Court that the conflict arises primarily out of the manipulative and controtling personality of Ms. weighs heavily against Ms.- Therefore, this factor since the Court finds that it is her demeanor and approach that precipitates conflict, which is not in the best interest of this child. {14) The history of drug or alcohol abuse of a party or member ofa 'party's household. There is no significant drug and/or alcohol abuse history in this case. This factor is irrelevant. (15) The mental and physical condition of a party or member of a party's nousehold. 27 - ..... Neither party currently has any mental or physical condition, nor does any J;-nember of a party's househoto. that has any 31gnificance in this custody case. ii " !" :;The oruy 'perenr. with substantial history of mental and/or physical conditions is the " llrninor child herself. Ms __ L . has back issues that do not appear to interfere with ' :)her day-to-day functions or her abi!ity to parent this child ;ianxiety appears to be in remission and is also not Her past history of a factor m this matter. ijAccordirigiy, this factor is of little relevance in this case. (i6) Any other relevant factor After years of taking testimony trom the parties in this matter. it is the finding of the (,ourt that the demeanor, attitudes and conduct of Msand manipuiat1:1g every aspect of this child's Hfe and her constant in controlling interference and efforts to sabotage the reiationshrpbetween the minor child and Ms.the Derendantanother that has caused damage that rnay be irreparable to her child. Ms.-overbearing relatlonship with her daughter is detrimental to the longterm well-being of her child because she has not been giveh an opportunity to into an independent individual. Furthermore, the record clearly establishes Ms.-parentfng style {Whichmay have been well-intended) has actually stifled r1er daughter's growth in all areas. In the last two years when the child has been prirnarily withMs-the child has made far more improvements in all aspects of lier i1fo (except the stress and anxiety created by her mother) than was made m the six years before when she was in Ms. -full custody; lt is also clear that 1f the Court were to as it did m 2009, that the beneficial continue tc ;;:{!low full custody ir, Ms - 28 -.-........ relationship between the child and Ms.-vvouid deteriorate, and the Court ~trongly believes that the child's achievements in the past two years would be for . not and the child would regress. if appears that the best hope for this child to develop is unfortunately by limiting her contact and control of her mother. \/\/hat is also clear to the Court from years of litigation between the parties is that the shared legal and/or physical custody arrangement Ji would be totally adverse to the well-being of this child. /i clearly documented between the parties The guardian ad litern how the stress and anxiety levels of this child increase n [because of the conflict between Ms,-and Ms.- i is primarily precipitated by Ms- which the Court finds The Court also finds that the only hope for ii this chilo to achieve growth in her medical, mental and social condition is to have ;! i one person solely in charge of all decisions pertaining to her well-being. ,.... Ms. has' already demonstrated throughout the prior eight years that her li methods and approach have not worked and in fact have been detrimental to this ;1 i child. Thus, the Court finds that it is in the best interest of this minor child tha- . i, -have full legal and physical custody of her and that the involvement of Ms. 1; !111111 be kept to a minimum because of her overpowering influence and control ijof her daughter, and the battles she has created over the years, all to her i;!; daughter's detriment. )' I HENCE. THIS ORDER: 29 11 !; I 1! \i jl i lN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA GIVILACTION - LAW . l .: .. \.. ·~. J ~L-1 !aintiff -0 ;:o ::o C)C: No. 2008-2899 -I~ zs: ;.r.: S:r-> ,.;._, Cit_,:, -\-·--· )_;. C· -· en -0 =i: .. ?Jf1'i v. -< J. a. .f N 1, N ;•....-"i': l. l, ·_;) c Additional Defendant ORDER AND NOW, on this F Plaintiff. is" day of April, 2016, IT IS HEREBY ORDERED that shall have full legal (meaning the sole and exclusive right to limake all major decisions affecting the best interest of the minor child including, but :, !;not limited to. medical, religious and educational decisions) and physical custody " :, il !j(meaning " ;; l. the right exclusive physical possession to of the minor child),- : subject to periods of partial physical born 'l ;!custody {meaning the right to take possession of the child for a limited set period . ;) !iof . time) in Defendant . to be exercised only within H )!geographical boundaries of Mercer County, Pennsylvania, as follows: •; 'ffI ;I 1: the 'l. Every other weekend on Saturday mornings from 10:00 a.rrL through Sundays at 7:00 p.m. commencing Saturday, April 23, 2016. 2. shail have the rightto one phone call per day with the minor child which shall not exceed fifteen (15) minutes in length, and such other communications with the child as agreed upon by Plaintiff, 3. Such other periods agreedtob~ of partial physical custody as 4. Custody exchanges shall occur at the Shenango Valley Mall or any other place agreed upon by the parties. shall always encourage the minor child to iove and obey Neither party shall make any derogatory remarks that can be heard or [read by the minor child about the other party. shall not advise ;; her minor daughter that she does not belong in any particular school, or that she 11 d i should be placed in Cyber School, or receive any particuiar type of diagnostic tests, i mental health evaluations and any other sort of treatment of any kind. p ·, ri il Since the parties appeared prose in this matter, the Court notes that by this H il !J !iOrder ii !l has no legal duty or obliqation to provide any information to i regarding academics. medical. dental and/or mental health if ilcurriculum. Hi ~ programs, il Order means recommendations that tt Furthermore, this is not legally entitled to copies of any records H i,, of any and/or treatments. kind pertaining to the minor child Without the written l; 1! consent of Nor is d permitted to speak , without the express consent Of with and/or attend any parent/teacher conferences. doctor appointments, occupational therapy sessions, physical therapy sessions, speech therapy sessions and/or mental health evaluations and/or treatments. i i! Ji if In the event that period of partial physical custody ilcoincides with Christmas Day and/or Easter Sunday, then that holiday supersedes ;1 ;i !!her period of partial physical custody. ff IS FURTHER ORDERED that i: llllllnall not be permitted to remove the child from Mercer County at any time H )[ ijwithout the express written permission o :i i! Residence and Relocation of Parties: Each party shall maintain her q Jicurrent residence and in the event either party intends to change her residence, lfthen they shall give the other party at least thirty (30) days written notice of the ll d [date of the move arid the new address and telephone number. However, the law lihas special rules that are mandatory before a party can move, but these !! ,·: . i rules do not apply to all relocations . ;; The rules set forth below only apply to !J !i"relocations" that meet the definition in 23 Pa. C.S.A. § 5322(a): "A change ;! i';lin a residence of the child which significantly impairs the ability of the noni1relocating party to exercise custodial rights." Therefore, any party who ;! ii intends to change r the residence of a child, that significantly impairs the non- ,_ !;; relocating party's custody rights, must give the other party sixty (60) days [advance written notice by certified US mail, return receipt requested and by (j l j reguiar US mail, of his or her intent to relocate and provide the following in i . l!that notice pursuant to 23 Pa. C.S.A. § 5337: ii 1. :; -: The address. of the intended new residence. 2. The maiiing address, if not the same as the address of the intended new residence. 3. Names and ages of the' individuals in the new residence, including individuals who intend to live in the new residence. 4. The horne telephone number of the intended new residence, if available. 5. The name of the new school district and school. 6. The date of the proposed relocation. 7. The reasons for the proposed relocation, 8. A proposal for a revised custody schedule. 9. Any other information which the party proposing the relocation deems appropriate. 10. A counter-affidavit as provided under 23 Pa. C.S. 5337 ( d) ( 1) which can be used by the non-relocating party to object to the proposed relocation and the modification of the custody order. 1 t. A warning to the non-relocating party that if the nonreiocating party does not file with this Court an objection to the proposed relocation within thirty (30) days after receipt of the notice, that party shall be foreclosed from objecting to the relocation. This Court retains jurisdiction in this matter. BY THE COURT: J. . .· ·.' , I {,l._· -t·:l-(j li 20\& AUG 12 PH 3: 08 i\UTH A. BICE PROTHOHOlARY IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA CIVIL ACTION-LAW ... · Pl. 'ff alnti No. 2008-2899 v. ~ Defendant J- \ v. P91111. . Defendant Additional I I RULE 1925 OPINION I This is .a custody case regardtng a teenage girl who was born during a domestic relationship between appellant, I d appellee,- This is a heavily litigated custody matter that has come before this Court - off and on since July of 2008. This is also the third appeal to the Superior Court filed by appellant following an Order of this Court. All of those appeals have been unsuccessful. The Superior Court is directed to the 29 pages of Findings of Fact, Conclusions of Law and the most recent custody Order dated AprH 15, 2016. 1 Additional Defendant, is the biological father of the subject minor chlld. However, he is serving a life sentence for a murder that occurred unrelated to this matter after the child was c?~~~i~e,?-_ __ ~e is also appellee's nephew and was chosen by appellant and appellee tb father a ) 4 I l I ' I Essentially, appellant is the biological mother Of J.R. who was born and raised by these two domestic partners in the first five years of the child's life. Their breakup thereafter led to appellant's refusal to let appellee continue to co-parent J,R. prompting appellee to file a custody complaint. Appellant had promised appellee in an ernaii that she would fight her With every breath of her being against custody. Appellant has been true to her word and has thrown many hurdles in front of appellee to prevent.and/or frustrate her retationshlp with the minor chifd for the past ' eight years. Appellant was initially granted full custody with supervised visitation in appellee by Order dated February 20, 2009. The reason for supervised visitations was because of the alleged poor health of the minor child and the Court wanted to make sure thatappellee's relationship with the child was rekindled and that she was capable of handling these various medical problems. The ultimate hope of the Court at that time was that the rancor between the parties would subside, the relationship between the minor child and appellee would be rekindled and appellee would be proven .capabte of caring for the child's various medical and emotional issues. Unfortunately, appellant engaged in an extended course of conduct over the last.eiqhtyears to interfere deliberately with the custody rights of appellee. At first1 appellant hid behind a myriad of medical and emotional problems as a reason to Then, she relocated to the Cincinnati, cancel numerous supervised Visitations. Ohio area without leave of Court or permission from appellee. She left the only home the child had known, a home that was in appellant's name, but a mortgage was only in the appellee's name, and appellant refused to pay the mortgage. 2 I~ 11 l Furthermore, appellant left Mercer County where she- had established all of her medical providers for her child including multiple therapists over the years and left a steady income stream behind without anysubstitute income stream in Ohio. In the meantime, the child's home was lost in a mortgage foreclosure action since appeHee was not aware ih time of the default so that she could cure lt, so appellant was permitted to remain in Ohio with the child until the relocation litigation had been concluded. While that litigation was pending, appellee was again given / the right to have visitations I j with the child, but appellant was ordered to bring the child to Pennsylvania tor those visitations. Again, appellant had tons of excuses none ot which the Court found valid to avoid bringing the child to Mercer County for visitations. Appellant was ordered to relocate the child to Mercer County by Order dated August 24, 201 O. Which was upheld on appeal. I ., Appellant ignored that Order and subsequent Orders giving her additional time to make living arrangements back in Mercer County, but she was obviously stalling and the Court finally held her in !1 I contempt of Court for willfuHy I violating its Orders and sentenced her to a six month / I term of incarceration with purge conditions and issued a warrant for her arrest on March 29, 2012. Appellee filed a motion to modify custody seeking primary physical custody of the minor child and she was granted temporary primary physical custody on October 2, 2012 pending the return of the child to Mercer County and overslqht by Mercer County CYS to make sure that the child was safe, that appellee's home was appropriate and that any medical providers were in place if needed for the child's care. Appef!ee registered the 2012 Mercer County Order 3 In Cincinnati, Ohio and ((J} Appellant's first issue in her Concise Statement bf Matters Complained Of is that the Court failed to adopt the recommendation of the guardian ad lltern of shared legal custody. The guardian ad litern made 14 recommendations to the Court. Ex. 1 pgs. 12-16. Jt.. In paragraph 8(a) of the report, the GAL opined that JR. would benefit from joint legal custody for equal decisions. The GAL, however, discussed in her testimony and throughout her report the negative impact ihe conflict between appellant and appellee caused to J.R. Moreover, the record is replete with conflict between the parties on medical treatment, counseling, therapy and education. Appellee had a much different view of how to address J .R's needs than appellant The GAL seemed to support the position of appellee and could not emphasize enough how the parties' disputes exacer.bated J.R.'s significan·t anxiety problems. it is also noteworthy that appellant is extremely controlling and is not capable .I (as demonstrated over the past eight years) of considerinq appellee on any issue pertaining to J.R. highway. any viewpoint from Simp-ly stated, it is appellant's way or the Throughout this trial, and other proceedlnqs, appellant always attacked the Opinions and ability of appellee to rnake appropriate decisions for J.R. This position was flatly rejected by the Court and the credible evidence showed that J.R. has made vast improvements and gained more independence over the past two years when in the primary physical custody of appeflee. Notably, the GAL stated in her report that co-parenting was not a viable option in this case and that "flexibility leaves room for conflictand battles over power and control." Jd. Obviously, the recommendation of the guardian was just one piece of I evidence in-the possession of the Court whenwelghing all of the 1'6 custody factors. I The Court ultimately declined to follow the recommendation of the GAL because of I 5 .. . . . l I )1 l! I an of the other sordid I conclusion I history involved that the best interests of J.R were not being served over all of these years by appellant by withholding i· appellee. i in the case and the Court's ultimate and interfering wfth the custody rights of the In addition, the Court found that appellant's conduct in controlling and manipulating every single. aspect of her child's life relationship between irreparable damage. relationship and constantly interferingwith the J.R. and appellee, that the child has probably Moreover, the Court found that appellant's suffered overbearing with her daughter was detrimental to the rang-term wellbeing of the child since she was preventing her child from developing the_ social, emotional and physical skills necessary to be independent and to mature.. discussion of Factor 16 on page 28 of the, Conclusions See the Court's of Law. In contrast, since the child has been with appellee for the past two years, she has improved leaps and bounds beyond the way she was for the preceding six years while in the custody exclusively of the appellant. In addition, as noted often in the GAL report, the conflict caused by Ms. -In the past two years has .1 I continued to exacerbate emotional problems with the child and has caused the child to rebel against efforts by appellee and school authorities to improve her life. For example, appeilant would tell her daughter that when she gets her back, she will be horneschooled and she should be horneschooled and does not have to worry about being mainstreamed where she. was initially thriving before appellant was granted more extensive contact with her after her jail stint. Thus, in considering all of the evidence the Court has heard since 2008, and particularly the misinformation given to the Court over the years by appellant, it was clear that her role in this child's life was detrimental to that child and that any 6 ·······-·· _,_, . ·····-·-······- .. •··· .- . extensive involvement in decision-making processes involving her child would lead to conflict, which would lead to disruption in this child's development. For that reason and many other reasons, the Court granted full physical custody to appsliee with periods of visitation in the appellant That was the corner that appellant's conduct over the years forced the Court and the child into. She has no one but herself to blame and has even indicated at times throughout Court proceedings in her weak moments that she is her own worst enemy. The other Side of appellant's argument is that it was error to prevent her "access to academic, social, medical and therapeutic support services for the child" so that she can learn to co-parent with appellee. I do The last thing this Court wanted to was to limit appellant's involvement with her minor child. over the years left the However, appellant Court with no choice once it became obvious when the child was placed into, the custody of appellee, that the child was thriving, growing emotionally and soclallv and was day-to-day, minute-to-minute became apparent throughout becoming more independent without the constant control and manipulation the last two years that as of appellant. It also appellant became more involved with her child again, even though the child was in appellee's primary physical custody, the stress level and anxiety in her child increased dramatically. The primary source of that increased anxiety and stress was appellant Unfortunately, the only way to remove that problem was to narrow and limit the involvement of appellant mother. There is no doubt that the child is in a better place with appellee having full custody and control over all decisions of how to overcome the damage that appellant mother unwittingly caused to the development of her minor child. 7 J.R.'s I only hope for the future was unfortunately to remove the source of that conflict Thus, it was with a heavy heart that this Court felt compelled to grant full custody to appeltee with visitation rights only to the appellant mother. Hence, for the 1925 Opinions, Findings foregoing reasons and the reasons setforth in the various of Facts, Conclusions of Law and Orders issued throughout the history ofthis case including numerous contempt proceedings against appellant mother for failure to follow Court ordered visitations for appellee, this Court suggests that the custody Order entered in this matter on April 15, 2016 be affirmed. BY THE COURT: Date: August 12.t 2016 rmb 8 ( / ] .( J r )
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