Courts will reweigh custody factors and will look at the fundamental basis for another Court’s determinations. The trial Court made the following abbreviated determinations in M.J.N v. J.K., 2017 Pa. Super. LEXIS 623, 2017 PA Super 268 (Pa. Super. Ct. Aug. 18, 2017) which are illustrative of how a Court makes its determinations regarding custody factors:
1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party. – The Court weighed this slightly in favor of the Mother. Father was not always able to be present at the time the child is dropped off for the Father’s custodial periods. While his live-in girlfriend is seen by both parties to be an appropriate caregiver, Father alleges Mother refuses to leave the child in the girlfriend’s custody. Mother portrays herself as the selfless parent in this relationship, but Father testified Mother speaks to him in rude and derogatory terms.
For his part, Father claims Mother interferes not only in his exercise of physical custody, but also in his attempts to speak to the minor child on the phone. Father claimed Mother will manipulate the custodial schedule and interfere in activities he has planned with the child, such as on Father’s Day. Mother claims she e-mailed Father a couple of times to verify the pick-up time clearly stated in the prevailing custody order to see if she could attend church with the child. The Court concluded the truth is somewhere between the versions of the parties.
2. Present and past abuse committed by a party or member of the party’s household, whether there is continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child. – The Court weighed this factor in favor of the Father. The Mother has been physically, verbally, and emotionally abusive to the Father. However, there was not any evidence Mother abused the minor child. There was not any evidence indicating or even implying Father has been abusive to the minor child.
3. The parental duties performed by each party on behalf of the child. – This factor is weighed slightly in favor of the Mother. She is primarily a stay at home mother who works refinishing and repurposing furniture in her garage. As a result, she is the parent who most frequently is involved in taking the child to and from school, to and from athletic practices, and to medical or dental appointments. Each parent testified to their ability to ensure the child is fed, clean, and dressed appropriately. Each parent appropriately attempts to keep the child involved in extracurricular programs. Father has tried to interest the child in playing the keyboard, while Mother’s interests seem more focused on keeping the child enrolled in athletic activities.
4. The need for stability and continuity in the child’s education, maturity, and judgment. – This factor is weighed in favor of the Mother. While there is nothing wrong with Father’s having a busy professional life that requires occasional travel on business out of the area, for the simple fact that Mother is more physically available, she can offer more stability and continuity in the child’s life. She is also more attentive to taking the child to athletic practices. She attends his games and competitions more frequently than Father. Because of the interest by the parties in keeping the child in his current school with his friends, Father also faces a challenge in transporting the child back to school on weekday mornings as well as to athletic practices in the evening.
5. The availability of extended family. – This factor is weighed in favor of Mother. Father’s parents live in Vermont, where he takes the minor child to visit during vacations. He does not have any other family in the area, although he lives with his girlfriend and they have discussed getting married. Mother lives with her other son, with whom the minor child has a very strong attachment. While Mother does not speak with her biological parents or her sister, she has been able to keep up a cordial and close relationship with her grandparents and the mother of her former paramour, Ms. Andrews. Mother speaks with Ms. Andrews each day and Ms. Andrews takes both boys out for dinner each Monday night.
6. The child’s sibling relationships. – This factor is weighed in favor of the Mother. As stated above, Mother has another son from a previous relationship. That boy, who is two years older than Z.K., is a constant companion and playmate for Z.K.. Mother also had a daughter who unfortunately passed away when she was approximately four years old. The loss of this child lingers over the relationship between the parties and their son.
7. The well-reasoned preference of the child, based on the child’s maturity and judgment. – This factor is weighed in favor of Mother. During an in-camera session with the minor child, in which both parties waived their personal attendance and that of their respective counsel, the Court could learn of the strong attachment the minor child must his half-brother. Although this may be an aspect of his relatively young age, the potential of not being around his half-brother Owen and participating in activities with him is the single largest impediment to Father’s being able to establish the case for primary physical custody.
In addition, moving forward, Father is strongly urged to make more of an effort to take his son to the practices for the child’s various athletic activities, to have the child there on time, and to attend as many practices and competitions as he can, even those events on Mother’s custodial periods. It is also important for Father and his paramour to understand they have a growing boy to help raise who is not and does not want to be treated as if he is a toddler.
8. The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm. – This factor is weighed in favor of Father. There was substantial evidence of Mother’s rudeness and intimidating personality, including cursing and uttering derogatory comments about Father in the presence of the minor child. Whether one believes the minor child was coached or not by Mother, based on the Court’s observation during the in-camera session, this behavior by Mother seems to have made little impact on the child. There was not any evidence of Father’s attempting to turn the child against Mother.
9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs. – This is a neutral factor. Both parents testified to their love and care for their son. They both possess the qualities and capabilities to provide for a loving, stable, and consistent environment for the child. Based on the in-camera testimony, it is clear to the Court Father and the minor child have two very different perceptions of the level of involvement between Father and child. Father has a busy professional life, but the Court suggests he become more actively engaged when he is at home with his son. Mother can take the child to school, to his practices, and have him home and in bed on a routine schedule, but she must also recognize the importance of encouraging the relationship between the child and Father.
10. Which party is more likely to attend to the daily physical emotional, developmental, educational, and special needs of the child. – This factor is weighed slightly in favor of the Mother. Again, by sheer weight of the fact she has performed most of the daily activities of getting the child to school, to his athletic practices, and to any medical or dental appointments, she has a longer record of performing these tasks. The presence of the minor child’s half-brother cannot be understated in its effect on the child’s entire outlook on all custodial questions.
11. The proximity of the residences of the parties. – The parties are approximately 20-30 minutes apart, based on the amount of traffic when one is driving between Coplay where Mother lives and Upper Macungie where [Father] resides. This factor is weighed in favor of Mother, based on her proximity to the minor child’s school and to his athletic practice location.
12. Each party’s availability to care for the child or ability to make appropriate child-care arrangements. – This factor is weighed slightly in favor of Mother. As stated above, because [Mother] works from home, she does not need to rely on any back up child care. If needed, she can call upon the grandmother of the minor child’s half-brother to watch the children. Father is at work during the day, but his paramour is able to arrange her work schedule so that she can be home when the minor child arrives for his custodial periods. However, if the child had to come home from school because he is sick, it seems [Mother] is the only one who could accommodate that situation without any great difficulty.
13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party. – This factor is weighed in favor of Father. Father presented ample testimony that Mother is rude, combative, and possibly a very unpleasant person to be around to her neighbors and former boyfriends. She has a history of physically assaulting men in her life, and an apparent tendency to lie on numerous occasions when confronted with a number of discrepancies about her conduct. She has also formed a close bond with the minor child which remains unshaken even after all the obnoxious conduct to which she may have exposed her son. [Father] appears to be a caring individual who is portrayed as being distracted by his professional responsibilities. The testimony about Father’s level of interaction with the [Mother’s] family during the physical decline and eventual passing of Mother’s daughter raises questions about his honesty, but has little to do with his relationship with the minor child.
14. The history of drug or alcohol abuse of a party or member of a party’s household. – This is a neutral factor. Neither party characterized the other as abusive of drugs or alcohol.
15. The mental and physical condition of a party or member of a party’s household. – This factor is weighed slightly in favor of Father. While neither party nor the other extended family members displayed any physical or mental health conditions which would impair their ability to care for the child, the wildly varying contradictions in the depictions of various episodes in the lives of the parties leads the Court to conclude it will require each party to obtain a mental health evaluation within 60 days of the date of this Order. Said evaluation will be for the purpose of determining if either or both parties are recommended for any follow-up treatment or counseling as it relates to the ability of the parties to co-parent and to participate in raising their son.
16. Any other relevant factor. – This factor is weighed in favor of Father. Mother admitted she pled guilty to a summary level offense of harassment in New Hampshire in 2009. Mother was criminally charged after an altercation with Father. Beyond that one incident, Mother was described as frequently assaulting both Father and the man she was involved with in the last two years. This indicates to the Court the mental health evaluation of Mother also needs to include an evaluation if she needs to attend anger management training.
The Father disagreed with the Court’s determinations and felt that the evidence did not support the Court’s conclusions. The appellate Court agreed with many Father’s contentions, recognizing that the Court’s conclusions based on the evidence in the record are not supported by the Court’s findings and in some instances, contradict those findings. For example, the Court determined that factor (1) weighs slightly in Mother’s favor, yet the evidence the Court relates suggests that this factor should at a minimum be neutral. Also, the Court’s discussion regarding factors (13) and (16), which were weighed in favor of Father, shows the Court’s recognition of Mother’s rude and combative behavior; however, the Court simply concludes that it has no effect on the Child. The appellate Court was also troubled by the Court’s emphasis, almost to the exclusion of other factors, on the Child‘s relationship with his half-brother. Moreover, the Court appears to overlook its own ruling that it found Mother in contempt of the prior custody order. Interestingly, the Court found factor (5) in favor of Mother, recognizing that she has maintained a close relationship “with her grandparents and the mother of her former paramour, … who takes both boys out for dinner each Monday night.” However, the Court also finds Mother lacks a relationship with her own parents and sister, who live in the vicinity. The takeaway here is that the Court weighed evidence – which the Court is allowed to do – but the Court seemed to ignore completely contradictory evidence in an illogical way. The Court cannot “cherry pick” its facts.
The thrust of Father’s second and third issues rests on his allegation that the custody schedule imposed by the Court deprived Father of in-person contact with the Child for periods of up to ten days at a time, after having had a custody schedule in place that afforded a 50% split of time with the Child. Although the Court determined that these ten-day periods are minimized because daily phone contact is permitted, Father identifies testimony revealing that Mother is uncooperative and interferes with Father’s attempts to communicate freely with the Child. Additionally, Father asserts that the telephone contact does not replace the lack of in-person custody time, as suggested by the Court. In this same vein, Father contends that the Court failed to provide a “right of first refusal,” which would allow custody time for Father if Mother is unable to care for the Child during her regular custody time, i.e., instead of using a babysitter or some third party. As part of this argument, Father also claims that the Court erred by not providing additional custody time during the summer months when the Child is not in school.
The Court also appeared to again overlook the fact that it held Mother in contempt of the prior custody order. The appellate Court felt that this discrepancy was an important factor
Likewise, we are troubled by the Court’s conclusion that factor is neutral in light of the fact that it directed that Mother’s mental health evaluation should include a determination as to whether she needs anger management counseling because of the confrontations Mother has had with Father and others, which at times occurred in the Child‘s presence. The Court’s discussion relating to this factor appears to highlight Father’s shortcomings, i.e., the need for Father to become more actively involved despite his busy professional life. Yet, the Court emphasizes Mother’s ability to take the Child to school, his athletic practices, and keep a routine schedule apparently because she works from home. Again, we conclude that the Court’s conclusion is unreasonable.
Father contends that despite the Court’s recognition of Mother’s rude and abusive behavior towards him and others in the Child‘s presence, the Court concluded that “she has also formed a close bond with the minor child which remains unshaken even after all the obnoxious conduct to which she may have exposed her son.” However, Father also points out that the Court found that Mother’s “rudeness and intimidating personality, including cursing and uttering derogatory comments about Father in the presence of the minor child … seems to have made little impact on the child.” Therefore, Father contends Mother’s behavior, in addition to her being held in contempt, unquestionably causes conflict between the parties, and that this factor should have been weighed heavily in Father’s favor.
The Court felt in light of the evidence that many of the weight determinations regarding some of the factors, as noted above, are unreasonable. Moreover, one of the most troubling facets of this case is the Court’s conclusion that Mother should be awarded primary physical custody, despite its recognition of her anger issues. Also, this ruling reduces Father’s custody time exponentially from what it was under the prior order and is unreasonable under the circumstances of this case.
The Court concluded that because the Court’s determinations as to a number of the individual factors are unreasonable, its custody order cannot remain in place. The Court vacated the custody order on appeal and direct that upon remand the prior order of shared physical custody be re-imposed, thus, allowing for the 50-50 split of custody time. The appellate Court substituted its judgment for that of the trial Court and decided the case on the merits. The Court remanded the trial Court is to consider Father’s request to modify the re-imposed custody order to allow any responsible adult to retrieve or accept custody of the Child on behalf of Father for his periods of custody. The Court remanded the case back to the trial Court for a reweighing of evidence in the matter.
The takeaway here is that the appellate Court can reweigh evidence if it disagrees with the trial Court. This is particularly true when the trial Court decides to ignore contradictory evidence.
Much of the above is paraphrased from M.J.N. Supra.