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HomeMy WebLinkAbout2016-00825 Bowman (2) SHANNON C. BOWMAN, : THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : No. 2016-00825 CIVIL TERM : JON S. BOWMAN, : Defendant : CUSTODY OPINION Smith, J., January 27, 2022 FINDINGS We incorporate by reference the fact section from our August 3, 2020 Opinion regarding the background of this action, and will herein provide updated findings since 1 that date. The parties were before the Court for a custody trial on June 25, 26 and July 20, 2020. After a trial, we issued a custody Order on August 3, 2020, granting Mother primary physical custody, subject to Father’s periods of partial physical custody every 2 Thursday overnight and on alternating weekends from Friday until Tuesday. The Court also required the parties to engage in the services of a parenting coordinator, Lori 3 Serratelli, Esquire, should they wish to modify the provisions of the Order. Father filed for reconsideration of the Order on August 27, 2020, in response to which we clarified some of the provisions of the August 3, 2020 Order. A revised custody Order was issued on September 2, 2020. On November 17, 2020, after a session with the parenting coordinator, during which the parties could not come to an agreement, Father filed a petition for a de novo hearing regarding who would be permitted to supervise Child during his virtual schooling. Prior to the de novo hearing, Mother filed a Petition for “Limited” Modification seeking to modify the custody Order so that Child would only do virtual schooling at Mother’s home. Simultaneously, Mother filed a Petition for Contempt alleging four counts, that (1) Father did not pay the Parenting Coordinator; (2) for “deferring his 1 See Opinion, Bowman v. Bowman, No. 2016-00825 (August 3, 2020). 2 Order of Court, In Re: Custody Order and Parenting Plan, ¶ 4, Bowman, No. 2016-00825 (August 3, 2020). 3 Id. at ¶ 15. Page 1 of 29 supervision of Child’s distance learning;” (3) for “deferring his custodial responsibility every other Friday and every other Monday since Child started school;” and (4) for not following the parenting coordinator’s recommendation. On December 8, 2020, Father filed a Petition for Special Relief requesting that the Court order the parties to enroll Child in in-person schooling with West Shore School District beginning January 19, 2021. A hearing was held on all outstanding petitions on January 4, 2021. The Court adjudged Father in contempt for failing to communicate regarding Child’s educational 4 concerns and failing to abide by the terms of the Parenting Coordinator’s Interim Order. Recommendations of the Parenting Coordinator were published into the Order, namely that the custodial parent shall be the sole party responsible for supervising Child’s virtual schooling, and a right of first refusal was granted to the parents if the custodial parent was unable to supervise virtual learning. Father’s request to have Child return to in-person schooling was denied. Mother filed another Petition for “Limited” Modification on March 31, 2021, requesting that Father’s periods of physical custody be “limited” to alternating weekends from Friday through Sunday and a dinner visit on Tuesdays. Mother also requested for the Court to grant her sole legal custody. Several more motions ensued over the course of 2021, most notably, crossed filed motions regarding Child’s therapist. Mother ceased taking Child to his appointments with Jaqueline Spriggle. Father sought to hold Mother in contempt for failing to do so, and Mother filed a Motion for the Court to appoint a new counselor. Ultimately, the parents agreed to seek counseling services for Child with Pamela Moran. Child has been attending therapy with Ms. Moran since August 2021. Additionally, the Court ordered that Child attend school in person for the 2021-2022 school year. As trial on Mother’s Petition for Modification approached, Father filed his own Petition for Modification seeking shared physical custody. At trial, very few additional facts were elicited regarding the parties’ living situations. Mother is still residing in the same home in New Cumberland. Maternal Grandparents continue to reside in their home near Mother’s residence. Mother continues to be employed as an air traffic controller at Harrisburg International Airport. Father is still living in Harrisburg with his fiancée Janna Williams (“Fiancée”) and continues to be employed with DHL Supply Chain. 4 See Order of Court, In Re: Hearing on Petitions, Bowman, No. 2016-00825 (January 4, 2021). Page 2 of 29 Most of the testimony at this trial involved incidents that have arisen since the last trial, perhaps the most significant of which involved Child’s behavior during virtual schooling, which appears to be the impetus for Mother’s Petition for Modification. Mother testified that beginning in January 2021, Child started exhibiting behavioral changes during virtual schooling. Mother saw observed Child being disrespectful to his teacher, throwing things and trying to tip over the desk. Additionally Mother testified that Child had become defiant, “hyper-critical,” and destructive. Mother estimated that Child was disruptive in class 45 to 50% of the time. This prompted Mother to reach out to the school, where she learned that Child had been using a Microsoft Surface laptop 5 at Father’s house for virtual schooling instead of the school-issued iPad. Mother believe that this may have been the source of Child’s issues because Child had difficulty writing on the school-issued iPad. Mother then testified that she set up a meeting with the school to address the iPad issue, and that Father did not care about what she had to say. Ultimately, the school stated that while they preferred for Child to use the iPad, they could not force 6 Father to make him do so. The school gave Mother tips on how to curb Child’s behaviors, which included putting him into a Zoom break-out room and finding a space for Child to calm down. In response, Mother turned a closet into a “time out room” for Child to go to when he was feeling overwhelmed. Father testified that he did not observe the behavioral issues during his periods of supervision. Father stated that he began letting Child use the Surface in November 2020 because the camera was easier to use with a particular assignment. Father indicated that he contacted Child’s teacher to make sure that it he was permitted to allow Child to use the Surface, and she confirmed that Child would be able to access all the required programs needed for virtual schooling. Father believed that Child, although well-behaved, was bored with virtual school, but he ended the school year with good grades. Father also noted that Mother had stopped taking Child to counseling with Ms. Spriggle during this time. After fleshing out the school issues, Mother testified regarding issues that happened on Father’s custodial time beginning with December 2020 when Child tripped 7 and fell on the stairs in Father’s home. Mother testified that she believes Child lost a tooth as a result of the fall, while Father testified that the tooth, a baby tooth, which Father had testified had been “loose for weeks,” fell out the day before. Mother testified 5 See Plaintiff’s Exhibit 2. 6 See Defendant’s Exhibit 1. 7 See Plaintiff’s Exhibit 3. Page 3 of 29 that Father did not call the dentist. Father testified that he did not believe it was necessary to contact the dentist as the tooth, which was a baby tooth, had come out cleanly. Mother called the dentist and made an appointment for Child on Father’s custodial day. Father did not take Child to that appointment. Father testified that the dentist’s office advised him that because of the rising number of COVID-19 cases at the time, and because it was not an emergency, and because Child had a regularly scheduled appointment in early January, that the appointment was not necessary, so he did not take Child. Father also noted that Mother permitted Child to walk on the boardwalk at the beach without a mask, as evidenced by a photograph Child posted to 8 his online schooling app. The next topic of contention Mother raised revolved around Kung Fu classes for Child. Mother testified that she was informed by Father that he had enrolled Child in 9 Kung Fu classes on Thursdays. Mother stated that she went to the website for the program and could not find their COVID protocols. Mother went to the first class and stated that Father told her, as soon as she walked in the door, that she would have to discuss the COVID protocols with the owner. Mother observed that none of the participants were wearing masks, and the owner confirmed that they did not require masks. Mother and the owner agreed that it would be best that Child did not participate. Mother said that Father told Child that Mother was not permitting him to do the class, and that Father picked up Child and carried him to the car without letting Mother speak to him. Mother testified that an argument ensued in the parking lot where Father shouted “what’s she doing here,” in reference to Maternal Grandmother, to which Mother countered with “what’s she doing here,” in reference to Fiancée. Father, for his part, testified that he purchased the classes for Child as a birthday gift. Father believed that he did not need to consult with Mother prior to enrolling Child in the classes because the classes were only on Thursdays, which is his custodial day every week. Father stated that he emailed Mother regarding the classes and invited her to attend, and Mother did not respond. Father stated that when he arrived with Child on the first day of class, the owner told him that Mother had sent him an email asking about the COVID protocols, and that if Mother was not in agreement with Child participating in the classes, he could refund their money. When Mother arrived, Father told her to speak with the owner. Mother told the owner she was not comfortable with the lack of masks and social distancing, so she could not agree to Child participating. Father testified that he picked up Child and carried him to the car. He stated that he explained to Child why they were leaving, and that Child was not upset, but confused. Father 8 See Defendant’s Exhibit 30. 9 See Defendant’s Exhibit 12. Page 4 of 29 testified that while he was carrying Child out, Maternal Grandmother and Fiancée were “having words,” and Maternal Grandmother was becoming loud and poking Fiancée in the chest saying that she did not have a right to be there. Father testified that at this point, Mother was still inside talking to the owner. When Mother came outside, she asked to say good-bye to Child, to which Father agreed. Mother next raised a recurring issue that reached a head in September 2021. Mother stated that she allows Child to do “whatever he wants” with his hair as a way to have some control over his appearance. Mother testified that if Child were to have his way, he would have long hair. Mother stated that Father does not want Child to have long hair and that he will “fix” Child’s hair himself, which makes Child upset. On September 23, 2021, Mother emailed Father and told him that Child’s school pictures were coming up and that he should not get Child’s haircut. Mother testified that Father 10 cut Child’s hair despite her request. Father responded by saying that he cannot tell when Mother gets Child’s haircut. Mother next raised the issue of Father’s duplicity on COVID-19 precautions. Mother testified that in July 2021, while on their way home from vacation, Child became carsick and vomited in the car. As this was an exchange day with Father, Mother contacted Father to let him know. Mother testified that Father launched into a series of questions about Child’s potential exposure to COVID-19 and took him immediately to urgent care for a test after the custody exchange. Mother stated that she believes this is in direct contrast to Father mocking her adherence to COVID precautions and further stated that Father contradicts himself often, like refusing to take Child to the dentist because of COVID, but allowing him to go to a nail salon with Fiancée around the same time. Father responded that they were going to be visiting Fiancée’ family that weekend, so he wanted to make sure that Child was not COVID-positive, and that he allowed Child to go to the nail salon but not the dentist because at a nail salon, Child was fully masked the entire time, as opposed to the dentist where he would not be for obvious reasons. Mother is seeking to limit Father’s custodial time to alternate weekends and one week-night visit per week. Mother believes that Father is “whittling away” her bond with Child because he makes Child feel bad for spending time with her, and that Child’s personality has changed since the last court hearing. To illustrate her point, Mother stated that when Child was prompted to write about his weekend for a school assignment, he became upset and stated that he did not want to write about his weekend with Mother because Father would see it and Father does not want him to be happy with Mother. Another example that Mother gave was when Child was 10 See Plaintiff’s Exhibit 6. Page 5 of 29 misbehaving at school, he told his teacher that Father wanted him to spit on Mother. Mother, overhearing this, texted Father, who called Child and told him to apologize to the teacher and tell her that Father did not say that. Mother said that Child became upset because Father “told him to lie to his teacher,” and to apologize for something he said that was true. Mother said that Child was so upset, he wet the bed that night. Additionally, Mother stated that she wants to limit Father’s time because he will not follow the Court Order. She testified that she expected improvement from him after the last trial, and not only has Father not improved, she believes that he is now more antagonistic than he was before the last trial. She is asking for sole legal custody because she and Father can never agree on anything and Father does not keep the appointments she makes. She believes it will be more practical than going to Court every time a decision must be made. Mother stated that she believes that she has done everything she can to co-parent and that the Court often sides with her anyway, so she should be permitted to make all the necessary decisions regarding Child without Father’s concurrence or input. In addition to testifying in response to Mother’s testimony as outlined above, Father raised his own issues with the current parenting arrangement. First, Father raised the issue of Child’s religious education classes. Mother enrolled Child in religious education classes prior to the last trial, to which Father agreed to because they occurred only during Mother’s custodial time, and Father agreed to move his nightly phone call with Child to accommodate the classes. Father testified that this year, however, Child is required to participate in additional classes that occur on Father’s custodial weekends, and that Mother enrolled him for those classes without consulting 11 with Father. Father stated that Mother did not ask him if he agreed to take him to the events on his weekends, she just told him that he would have to. Father stated that he told Mother he would take Child if they were available and Child wanted to attend. Father then requested Mother provide him with the COVID-19 protocols for the class, which he states Mother did not do. Mother responded in rebuttal by stating that Father agreed to raise Child Catholic and these classes are a part of that tradition. This year, Child will be receiving his First Reconciliation and First Eucharist sacraments, which require extra preparation and events. Mother stated that the weekend classes are pre-planned and Child is not able to miss them. Mother testified that she posted the COVID protocols in Our Family Wizard’s document center and Father viewed them, although when she submitted the 11 See Defendant’s Exhibit 13. Page 6 of 29 exhibit of the posting, it was unclear whether the protocols were for the classes or the 12 church generally. Father next raised an issue that occurred between the first and second days of trial. On the first day of trial, November 18, 2021, Child was supposed to attend counseling with Ms. Moran, and Father was supposed to take him. Because of the trial, the parties agreed to cancel that session. Father called Ms. Moran, who indicated that she could see him on November 24, 2021 at noon. Father’s custodial time for the Thanksgiving holiday commenced at noon on November 24. Father testified that Ms. Moran has requested that the parties alternate transportation of Child to the sessions, and that this was Father’s time to take Child to counseling. Father indicated he told Ms. Moran that he would be a few minutes late to the session because he did not pick Child up from Mother until noon. Father testified that Ms. Moran was fine with him being late. Father placed the appointment on the calendar in Our Family Wizard, but he did not message Mother to let her know about the appointment directly. When Father arrived at Mother’s house on November 24 at noon, Mother and Child were not there. Father eventually was able to contact Mother, who said she had taken Child to the counseling session. Mother testified that she took Child because in order to get Child to the appointment at noon, they would need to leave her house in advance of that time, and thus, though the appointment was on Father’s custodial time, the transportation time was on Mother’s custodial time, making it Mother’s responsibility to get Child to the appointment. Mother testified that she did not know about Father’s arrangements with Ms. Moran and “just assumed” she would have to take Child to the appointment. Father next raised a specific issue, Halloween, which brought up a general issue, how Mother views the parties’ respective custodial time. Father testified that Halloween 2021 was Mother’s holiday, but because Mother’s municipality was holding Trick-or- Treat on a different night than Father’s municipality, Father suggested that Mother keep Child overnight on her Trick-or-Treat night (which would have normally been Father’s custodial time), and then Father would take Child Trick-or-Treating on the following 13 Sunday (Mother’s custodial time). Mother testified that the trade off was not equal in that Father would be getting additional custodial time outside of the schedule, and that Mother would be losing her four ‘holiday hours.’ Father further testified that similar 12 See Plaintiff’s Exhibit 24. 13 See Plaintiff’s Exhibit 4. Page 7 of 29 1415 arrangements were vetoed by Mother for New Year’s Eve and the last day of school. Mother testified that she viewed Father’s requests as trying to cheat her out of her Court Ordered holiday time. Father testified that he believes that Mother wants Father to give her more custodial time whenever she asks, but she will not do the same for him. Father then raised an issue regarding the notice required for vacations and other travel. In 2021, Father intended to take vacation in June. He emailed Mother, as required under the Order, notifying her of the travel week within 30 days of the date of 16 travel. Mother, at that time, requested an itinerary and implied that the Order required Father to provide not only notice, but complete travel plans. Father emailed Mother back with his travel itinerary, flight information, and addresses for where they would be staying three weeks before his departure date. Mother tried to find the address on Google Maps, and when she could not, she accused Father of being evasive. Father suggested she use a different search engine, and she was able to locate the home. Mother responded by saying that she believes that the spirit of the Order is to give all information regarding vacation plans within 30 days of traveling, and that Father has 17 said in the past that he would be traveling but then stays home. The last issue raised by Father concerned a parent-teacher conference that occurred the day before trial. Father testified that earlier that week, Child had come home with a fundraiser order form for poinsettias. The order form indicated that one order form and payment was to be submitted per child. Father and Fiancée contacted their friends and family members and took their orders. After the conference, in the school parking lot, Fiancée got out of Father’s car and presented the order form and a check to Mother. Father stated that Mother became combative and refused to take the check from Fiancée. Fiancée stated that she apologized to Mother that they gave her the form late and she tried to explain what they had done with the form, but Mother stated that she would not accept her apology and that it was Father’s responsibility to take care of getting her the school papers. Father stated he did not turn in the order form to the school to avoid conflict with Mother. Mother responded that she felt ambushed. She stated that she did not even expect Father to be there, as Father had told the teacher he would be participating by 14 See Defendant’s Exhibit 3. 15 See Defendant’s Exhibits 6, 7, and 8. 16 See Defendant’s Exhibit 39. 17 See Defendant’s Exhibit 40. Page 8 of 29 Zoom. Mother stated she did not know why Fiancée was there and stated that Father is required to give her a copy of all school papers immediately. Another issue arose during Father’s cross-examination regarding an incident that occurred at the dentist’s office in April 2021. The context was difficult to understand, but we believe what occurred was that Father’s name was omitted from Child’s paperwork, and so he was not able to access Child’s dental records. Father had to go into the office to sign the HIPAA paperwork to have access, but for some reason, was not able to do so. Father became agitated, to which Fiancée told him they would just subpoena the records and there was no point being there any longer. Father is seeking shared legal and shared physical custody of Child. He stated that neither he nor Mother are doing a “bad job,” and he is trying to be a better person and a better co-parent, although he admits that he is “a work in progress.” As an example of an attempt at co-parenting, Father testified as to the events surrounding 18 Child’s school picnic in September 2021. Father stated that he got the flier and noted that the picnic was during his custodial time. Father reached out to Mother to invite her to go with them and sit with them to “put on a united front.” Mother replied that she was volunteering at the picnic. Father stated that when Mother was done serving food, she found Child and instead of standing with Father and Fiancée as a group, she wanted to take him to have some “alone time” because she would not be getting her normal phone call with Child that evening. Mother responded by saying that she usually has a private conversation with Child on her non-custodial nights, and she believed that she was entitled to a private conversation with him that night. Gail Souders, Esquire, the Guardian ad litem (“GAL”) testified much in the same vein that she had at the last trial. She testified that Child has a healthy, warm relationship with both parents. The GAL reported that Child’s behavioral issues arise mostly at Mother’s house, and that the real issue surrounding Child’s behavioral issues during virtual schooling was not related to the device he was using, but rather because Child was not in counseling at the time. The GAL spoke with Ms. Moran regarding Child, and she stated that “Child is fine,” and that Mother’s reliance on “consistency” is more for her benefit than it is Child’s. Ultimately, the GAL believes that each parent can adequately provide for Child’s needs and a shared physical custody arrangement is in Child’s best interest. The GAL testified that Mother’s proposal to limit Father’s periods of custody would not be in Child’s best interest. Child is now 7 years-old and is in second grade at Highland Elementary School in the West Shore School District. Child was interviewed for this trial as he was in the 18 See Defendant’s Exhibits 10 and 11. Page 9 of 29 previous trial. Child stated that he likes being at both residences and that he does not like it when his parents fight. Child stated that he does not get in trouble much, so discipline is not really an issue to him. Nothing of concern was reported by Child. FACTORS Pursuant to 23 Pa.C.S.A. §5328(a), the Court has considered the following factors: (1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party. There continues to be a high degree of conflict and two layers of interaction between the parties: parents’ interactions with each other and their interactions with Child. The following analysis applies to this factor and factor 13 analysis as well. This was a strange trial. Throughout several days of testimony, the Court really did not hear any significant issues with the parents’ interaction with their child. Child continues to be well adjusted and happy. While Mother described some negative behaviors during virtual schooling, the behaviors seem to be manageable and have abated since in-person schooling resumed. This issue continues to be one of parents’ interactions with each other. Both parties cited the Court’s previous opinion and the steps taken to address the issues described therein. To be sure, both parties have indeed made strides, but the conflict has appeared to enter another phase, one of hyper technical order interpretation and tit-for-tat sniping. But the core issue remains – lack of trust. This lack of trust colors every perception and confirms every deep-seated suspicion and deeply held bias. Every action is viewed through this prism. Gestures of gratitude or honest requests are treated like deviations from the norm and a precursor to betrayal. The below recitation of facts reads like a handbook for domestic discord. - December 6, 2020. Child tripped as he was going up the stairs. Separately, his tooth fell out because it was loose to begin with. Father sent Mother a text on December 6 stating his tooth fell Page 10 of 29 out and could Mother say something encouraging during the nightly call. Father neglected to mention the fall in the text. The next day, Father sent an email stating that Child had tripped yesterday and has a small bruise and some swelling. One could speculate as to why Father did not tell Mother initially that Child fell in that he did not view it as significant and/or he was petrified as to Mother’s reaction. However, he was forced to tell in the morning because of the bruise and swelling. From Mother’s perspective, this was undoubtedly suspicious. What followed next was a terse, barely civil, constrained text exchange where Mother made a dentist appointment on ‘Father’s time,’ Father canceled citing COVID concerns for non- emergencies, and Mother rescheduled because she “was forced to be the parent.” Both parents communicated their perspective directly to the dentist’s office, the office vaguely agreed with both in that Child should probably get checked because he fell, whereas since the tooth fell out naturally, Child could wait for his next appointment. Both parents missed the underlying issue and more importantly, the opportunity to build trust. Ultimately, there was no issue with the tooth. This may vindicate Father’s analysis of the situation, but it misses an opportunity. Charitably speaking, perhaps it did not register on Father that the fall and tooth would be connected by Mother. More likely though, Father believed Mother would overact and did not want to make an issue of it. Regardless, Father could have used the opportunity to build trust by fully disclosing the two separate instances, give his opinion and then ask, “what do you think?” It is assumed Mother would have demanded the Child be seen, in which case if Father acquiesced, he would be perceived as ‘listening’ to Mother. This would have built a miniscule of trust and in turn, when the dentist declared everything fine, a microscopic grain of trust would have been implanted in Mother as Father’s judgement was ultimately sound. Page 11 of 29 As it turned out, Father’s ‘delay’ in reporting and perceived obfuscation confirmed Mother’s fears, caused her to react, which in turn only confirmed Father’s worst fears about Mother. His continued reticence to take Child to dentist added fuel to the fire and his proffered COVID excuse rang hollow when Fiancée subsequently took Child to a nail salon. This unfortunate pattern continued to repeat itself. - January 2021. Mother discovered Child was using Father’s Surface tablet instead of the school issued tablet for virtual learning. Simultaneously, Child also began acting up at Mother’s residence during virtual schooling. When questioned, Father denied Child acting up at his house. Much like the first trial, Mother combined those facts, plus a smattering of statements from Child about muting his teacher, to come to an unwavering opinion that the Surface tablet must be the issue instead of honestly considering the alternatives. Said alternatives include that maybe other children are having similar issues, Child is one of only a handful of children that are continuing virtual learning while most other children have returned to in-person schooling, that returning to virtual learning after a long winter break could be problematic, or that the problem lies with herself, not Father. The last point is particularly salient. Mother cannot and will not, ever acknowledge fault. It is Father who has problems communicating. It is Father who cause issues with the scheduling. It is Father who has trouble coparenting. It is always Mother “who has to be the parent.” Unsurprisingly. Mother launched into a well-researched campaign to demonstrate alternate tablets were not authorized by the school district while, also unsurprisingly, Father counter campaigned. Both parents again missed the core issue and opportunity to build trust. Page 12 of 29 The issue is not whether an alternate tablet is authorized, but rather, what is causing the issue. It could be the disparity in tablets, but it could one of the alternatives. Of note, one tragically missed opportunity was when Mother reached out for help. During an episode, Mother texted Father for help and Father, not to be faulted, responded via text to the missed call within 4 minutes. Via text, Mother explained the situation that Child had said certain things and was not cooperating. Father responded to that text via text of his own and then sent a Zoom link five minutes later. However, by then Mother had calmed Child and Child was back on his school Zoom. What followed next was a terse, barely civil, constrained text exchange where Father tried to figure out what was going on and Mother was dismissive. One of the things Child allegedly said that Father said is that Child “could make him happy by spitting on his Mother.” Father obviously and adamantly denied he said such things and even had a talk with Child via Zoom that he should not say those things and then followed up with an email to the teacher. These are normal things to do. However, Mother for her part, interpreted the Zoom talk and email nefariously, either as misrepresentations or perhaps cover-ups. Ultimately, the idea that Father would actually say those things to his Child about his Mother is objectively preposterous. 19 Then again, he did try to get her fired. Then again, she did hire a private investigator and contact his 20 ex-girlfriend. 19 See Opinion, 25-30, Bowman, No. 2016-00825 (August 3, 2020). 20 Id. at 5. Page 13 of 29 And so on. - April 19, 2021. Father went in dentist’s office demanding certain medical records concerning Child. According to patient notes, 21 he was very rude and intimidating to the nurse. Without ruling on the truth of the matter asserted in the notes, by Father and Fiancée’s own admissions, he was frustrated. The notes, however, are indicative of two things: 1) the extent to which this organization and probably other organizations document the 22 interactions with both parents because of the level of conflict, and 2) Father’s frustration sometimes boils over. While this entry is not so much ‘tit-for-tat sniping,’ it is still demonstrative of the action-reaction-counteraction cycle and more importantly, Father’s limits. Both parents are human. The internecine warfare takes its psychological toll. This is not to excuse Father’s actions, but rather to help him identify his trigger points. Mother takes solace in intricately researched and documented data; Father expresses himself in passionate 23 outbursts. - Late June 2021. Another terse, barely civil, constrained email exchange, over Father’s vacation plans. The Court will not quote Defendant’s Exhibit 39 at length because almost every email contains barely restrained contempt. Objectively speaking, Mother was unreasonable. While again, Father’s past haunts him in the way Mother views him, Mother is hypocritical in the information she requests. The notice provisions are designed to allow both parties the ability to schedule vacations in advance. Detailed itineraries are not required at notification. The tone of Mother’s emails implies moral high ground and while Mother can indeed rightly claim the moral high ground on some occasions, this is not one of them. And therein lies the problem. 21 Plaintiff’s Exhibit 3 at 8. 22 One would assume school officials and the doctor’s office have extensive notes in case of litigation or conflict. 23 See Kung-Fu Section, infra. Page 14 of 29 Mother cannot and will not ever trust Father. She cannot and will not ever view a situation from his perspective. While at 24 times Father’s loquacious responses are condescending, they occasionally contain valid points. Mother actually googled the proffered address and stated the picture came up with no building, the implication clearly being that Father is evasive. Father proffered other explanations. Mother kept going. This exchange had nothing to with Child’s safety and everything to do with the state of affairs between these two people. - July 2021. Terse, barely civil, constrained text exchange, this time over Child vomiting in Mother’s car. Apparently, Child took ill and vomited in Mother’s car on the way back from the beach. Mother informed Father via text and Father proceeded to question her extensively on COVID related issues and what steps Mother took. The tone, tenor, length, and detail were unreasonable. However, this was no doubt in reaction to 25 Mother’s previous actions. - August 20, 2021. Kung-Fu. This incident, above all other incidents, perfectly encapsulates the state of the relationship between the parents and illustrates the dynamic at play. On August 18, 2021, Father sent an email to Mother about Kung-Fu lessons. It is worth noting the exchange verbatim As a birthday gift we have purchased 4 Kung Fu lesson for \[Child\] to try as an extracurricular activity. We have already told him a little about the lessons and he is very excited to start. He th will start on Thursday the 26. Lessons will take place on Thursday evenings from 5:15 to 6:10 at the Tiger Kung Fu Academy. The lessons we have purchased will not interfere with your custody time. If he chooses to continue and a conflict arises we will discuss that with you. Parents are welcome at lesson and we will be attending at a minimum the first lesson. 24 E.g., the non-apology apology, “I apologize you took it so negatively.” Defendant’s Exhibit 39 at 7. 25 Which were no doubt in reaction to Father’s previous actions. And so on. Page 15 of 29 You are welcome to join us. We would all be glad to see you 26 there. Mother’s response on August 20, 2021 was, Please explain why you didn’t discuss this with me prior to 27 talking to \[Child\] about it and enrolling him. Thanks. Lacking an answer from Father, Mother then added on August 24, 2021, You didn’t answer my previous message regarding this. Additionally, I have researched online and can not find any information about Tiger Kung Fu Academy’s COVID protocols – 28 What do you know about them? The perspective of the parties is quite easy to discern. Father found the perfect extracurricular activity to perform with Child. The sessions were only on ‘his time’ and he solely paid for them. Mother had previously and unilaterally signed Child up for religious classes. There was no way, in his mind, that Mother could object. He felt so confident he extended an olive branch and invited her to the first session. Predictability, Mother felt affronted because Father had not 29 consulted her. She fell into old gate keeping habits and lashed out via email and when Father failed to immediately respond, took it upon herself to contact the academy. Unfortunately, this was once again a failed opportunity to build trust. Mother could have softened her email in any number of ways to communicate her concerns. Instead, she assumed the worst and acted accordingly. 26 Defendant’s Exhibit 12. 27 Id. 28 Id. 29 See Opinion, 17, Bowman, No. 2016-00825 (August 3, 2020). Page 16 of 29 The irony of the situation is that Mother and Father are again, both right, and both wrong. Father probably should have consulted Mother but was so excited that he finally found something for just he and his Child. Mother should have realized this and realized how her past actions influenced his behavior. While in individual situations Mother can claim the moral high ground so to speak, she fails to realize she is on equal moral footing with Father when it comes to parenting. They are both co-equal parents. What followed next was predictable. Father shut down and failed to engage Mother because he viewed her as trying to sabotage his relationship. His worst fears were confirmed when Mother appeared with Maternal Grandmother. From his perspective, Mother brought back-up and instead of being supportive, ensured that Child could not participate. She had gone behind Father’s back and had communicated with the Academy owner and had ostensibly set the conditions for failure. This was an emotionally devasting blow to not only Father, but Child. At that point, Father felt he was once again betrayed and sabotaged and just wanted to leave. Mother and Maternal Grandmother were overbearing and trying to show they were ‘right.’ Mother did not want to get blamed by Child. Predictably, Father felt attacked, overwhelmed, and lashed out threatening to call the police. From Mother’s perspective, Father, once again, did not co- parent and did not consult her before making a unilateral decision. Mother had to, once again, take it upon herself to parent. While she ostensibly showed up to “support” Child, what she was really doing was making sure Child was safe, and when she thought she reasonably expressed her “concerns,” Father overreacted and no doubt was going to blame Mother for what was Father’s fault in the first place. Father was right, Mother was wrong. Mother was right, Father was wrong. Page 17 of 29 Father should have consulted Mother but felt reasonably confident that Mother could not object based on her previous actions. His and his fiancée’s testimony were entirely truthful and accurate from their perspective. There were no fabrications or deceptions. Mother should have viewed the situation from Father’s perspective and acted differently. Objectively speaking, it does indeed appear as if she sabotaged Father. However, her and her mother’s testimony were entirely truthful and accurate from their perspective. There were no fabrications or deceptions. And so the cycle continues. - September 6, 2021. Religious Education. Predictably and most likely in response to the Kung-Fu incident, Father requested from Mother the COVID protocol the church was using for Child’s education classes. Mother had scheduled the classes unilaterally and presumably did so in the belief that logically it was an extension of previous years and theoretically Father should not object. However, Mother did fail to consult him. Subsequently, instead of responding directly to Father’s inquiry, Mother uploaded a multitude of documents to Our Family Wizard, some of which may have contained the protocols. Again, the parties spoke past each other instead of engaging in meaningful conversation. - September 23, 2021. Haircuts. This allegation is absurd, heartbreaking, and emblematic of the animosity between the parents. Mother and Father both claim to be deeply invested in Child’s haircuts. The Court recognizes the emotional investment mothers in general place in a child’s haircut, but at the same time recognizes that haircuts can be a bounding experience between fathers and their children. What these parents do, however, is to ‘one up’ each other, sometimes cutting Child’s hair within weeks of each other. Particularly egregious was Father cutting Child’s hair a week or so prior to school pictures. The irony of course, is that Child is happy as can be and loves getting his hair cut. Page 18 of 29 - September 24, 2021. Picnic. This was another missed opportunity to build trust and show unity. Father emailed Mother inviting her to a school picnic. His email was mixed message and passive aggressive, no doubt in response to 30 Mother’s previous passive aggressive email about Child’s hair. Regardless, in his email, he kindly invites Mother to the picnic and makes a reasonable request that the time together should count as Mother’s nightly phone call. However, he layers the request with another request that Mother not bring Maternal Grandmother to avoid a repeat of the “Kung-Fu” incident. He also snipes back about the haircuts. Naturally and reasonably, Mother takes offense, responds in kind, and then literally interprets the phone call substitution request in that during the two-hour picnic, she takes Child aside and literally spends 15 minutes alone with Child. Father on the other hand envisioned both he and Mother spending various amounts of time with Child during the entire course of the picnic as Child ran around playing with friends. This would have demonstrated unity and permissively blurred the line between Father’s and Mother’s ‘time.’ Understanding that anybody could misinterpret an email no matter how carefully crafted, the parties have elevated passive aggressive behavior and misinterpretation to an art form. Mother’s initial September 23 email to Father was an accusatory demand, not a request, that invited conflict. Gamely, Father responded and despite using the words “kindly” and “thank you,” inserted commentary about Mother’s mother no doubt designed to enrage Mother. Mother tersely responded and interpreted Father’s request in a narrow fashion missing the opportunity to demonstrate unity. While both parties quote the previous Opinion copiously and claim introspective betterment, they still concentrate on the trees instead of the forest. What the Court means by that is if the Court in its previous Opinion admonished a party for doing ‘X,’ the party stops doing ‘X,’ but does not seem to realize ‘X’ is a symptom of a larger whole and, while one can 30 Defendant’s Exhibit 11. Page 19 of 29 inefficiently treat each individual symptom, one really needs to treat the root cause – lack of trust. Again, this lack of trust colors every interaction and continues the action-reaction-counteraction cycle. The rest of the testimony repeats this pattern to include Mother’s denial of an extra Halloween night which was clearly in the Child’s best interest; Mother’s failure to consult about Child’s COVID vaccination; Mother feeling ambushed by Fiancée at the parent teacher conference when Fiancée was only trying to hand her a check; and Father’s lack of communication about Thanksgiving counseling appointment. This factor continues to be neutral. (2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of child. This Factor is neutral/does not apply. (2.1) The information set forth in section 5329.1(a)(relating to consideration of child abuse and involvement with protective services. There is no Children and Youth involvement. This factor is neutral/does not apply. (3) The parental duties performed by each party on behalf of the child. The Court incorporates its previous factor analysis by reference and notes both parties are fully capable of performing parental duties. Again though, the parties are trying to reconstitute one whole from two separate halves. Both Mother and Father try to schedule things distinctly on their own ‘time’ to avoid dealing with the other parent. While this has worked to a degree, there are only so many appointments and activities that conform to the specific time periods. While COVID has somewhat constrained extracurricular activities for the short term, the current scheme Page 20 of 29 is unsustainable in the long term. At some point, the parties will have to meaningfully communicate with each other. This factor is neutral. (4) The need for stability and continuity in the child’s education, family life and community life. Parents live close to each other, and both are involved with Child’s life. In its previous Order, the Court opined the major source of instability in Child’s life arises from the “optional” elements of the existing Order, such as Father’s extended Mondays, and the conflict between parents. The Court then attempted to craft a more rigid schedule. However, the schedule continues to be a source of instability and Child can go up to nine days at a time without seeing Father due to the vacation provisions. Additionally, Mother continues to exert moral superiority over Father when they are on similar legal footing. She steadfastly adheres to the letter of the Order when clearly it is against the best interest of Child or the spirit of the Order. As an example, this year was Mother’s turn for Halloween even though it fell on Father’s evening. Father offered for Mother to keep Child overnight as it would not make sense for Child to do Trick-or-Treat with Mother then return to Father later that night. In exchange, Father wanted to take Child for an extra Halloween Trick-or-Treat during Mother’s time on 31 Sunday. For Father, this was an easy one for one swap. However, to Mother, it was not a one for one swap as the time was not normally scheduled time, but ‘extra time;’ therefore, she was entitled to double the amount of time. The Court does not agree with Mother’s math, but that is beside the point – Mother continues to fail to see the forest through the trees. It would absolutely benefit the Child to share something as special as Trick- or-Treat not only twice, but more importantly, with both parents. 31 Four hours for four hours. Page 21 of 29 But Mother does not value Father. He is to be tolerated but 32 sidelined to the maximum extent possible. She perceives herself to be the real parent as Father “does not even try to coparent.” This factor is neutral. (5) The availability of extended family. Mother’s parents live within a mile of Mother’s house and moved to Pennsylvania specifically to be close to Mother and Child. Mother’s brothers also live nearby with their families. Mother’s cousin, Krista, lives in the area and is very close with Child. Aside from Fiancée, Father does not have family living in the area. Father’s only relative in Pennsylvania is his father, from whom he is estranged. Father’s mother and sister both live in Kansas. This factor favors Mother. (6) The child's sibling relationships. Child has no siblings. This factor is neutral/does not apply. (7) The well-reasoned preference of the child, based on the child's maturity and judgment. Child continues to be very happy, engaging, personable, articulate, and bright. The only thing he said any different during this interview was that he did not like it when “Mommy and Daddy fight.” This factor inures to both parent’s benefit. He is a wonderful child. (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. 32 Mother is requesting to drastically reduce Father’s time to every other weekend during the school year. Page 22 of 29 While there is undeniable tension between the parties, no party deliberately alienates Child. Child is bright and can absorb the hostility between parents though. This factor is neutral. (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. As with the previous Court Opinion, both parents are quite capable of maintaining a loving, stable, consistent and nurturing relationship with Child within their respective households. Mother has her parents while Father has his paramour and her family. The physical and social/emotional environments are conducive and supportive. There are differences in parenting styles of course. One such difference is Mother’s ‘time-out closet.’ This is not quite as nefarious as it sounds. While both parents use age-appropriate disciplinary methods, Mother has a closet which she has outfitted as a special place for Child to take a ‘time-out.’ The door is kept open, the light is kept on, and it has various books and pillows. While Child’s teacher did not say to use a closet specifically, the special place was at the recommendation of the teacher. The parenting styles create an interesting didactic. To grossly generalize, Mother is more literal minded and conducts extensive research and seeks the advice of professionals; Father has less of a plan and is more ‘seat of the pants.’ While in some cases, the two styles could be complementary, in this case, they are the opposite. When things do not go according to plan, Mother blames Father and attributes every infraction to Father’s style. As observed in the previous Opinion however, Mother fails to account for alternate explanations: 1) Child’s behavior at Mother’s house falls into normal age- appropriate parameters and thus does not register to Father as an issue. 2) Something in Mother’s environment or behavior causes Child to act inappropriately. Page 23 of 29 3) Father is lying about Child’s behaviors and experiences the same behaviors at his residence. 4) Father is indeed causing Child behavior and attempting to somehow sabotage Mother. 5) Something else entirely. To Mother, it is plain as day that Father is either indirectly or directly causing the behaviors. This is so because in a case of confirmation bias, she automatically discounts her actions and/or her behaviors, ipso facto what is left is Father. This is not to say the Court believes she is the cause of the behaviors or that the behaviors are even an issue, but only to demonstrate Mother is not as introspective and intuitive as she believes. Two examples illustrate this point. First, the ‘time-out closet.’ The mere fact that the Court must explain the ‘time-out closet’ is not as bad as it sounds means it is as bad as it sounds, but not in the sense one would think. The closet is outfitted appropriately, the door is open, and the light is on. It is a private space where Child can sit and regain composure. To Mother, it literally fits the bill as exactly described by the professional teacher. But it’s still a closet. It’s not a ‘space’ or ‘room’ or ‘corner.’ It’s not like the door was removed and it was remodeled into a ‘cubby.’ It is a closet. Forget Father’s reaction, what happens when Child goes to school and tells people Mommy sticks him in the closet? What happens when Child tells therapist Mommy sticks him in the closet? What happens when Child tells his peers that Mommy sticks him in the closet? What happens is that Child gets a stigma of being put in a closet when he is bad, and it does not matter how big or grandiose the closet is because Child knows it is a closet. It is the word ‘closet’ that carries the stigma. Mother does not pause to consider the secondary or tertiary effects. She does not intuit the word ‘closet’ is loaded with preconceptions. She will have to explain forever “the closet is not as bad as it sounds.” The second example is parking-lot-Fiancée-check incident. In short, Mother and Father were both to attend a parent teacher conference. There was some confusion whether Father was to attend virtually. Page 24 of 29 Regardless, Mother was surprised when she saw Fiancée in the parking lot and testified she felt ambushed when Fiancée attempted to hand her a fund-raising order form and a check. Mother refused. Mother refused because she did not know what was being handed to her and did not plan for it. She was not prepared. Theoretically, Father was supposed to scan ‘important school’ documents to Mother and discuss them with her. However, Father felt handing the actual form to her was better than scanning it as everything would be consolidated on one form. This is objectively reasonable. However, it was outside an environment Mother had prepared and, in her mind, counter to the Order. Mother takes solace in the Order. It is concrete. It is knowable. It is not hyperbole to state thousands of lives criss-crossing the sky each day in fuel laden missiles depend on her judgement and meticulous attention to detail. With such hyper focus, however, one risks losing the forest through the trees. It was a check and an order form, not an ambush. Raising a Child is as much an art as it is a science. Both parents provide equally for Child in their own way. It is the Court’s desire that each party recognize the contribution and worth of the other party and blend the art and science of child rearing. This factor is neutral. (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child. See factor 9 analysis, supra. Again, though both equally capable, it is a matter of parenting styles and conflict. This factor is neutral. (11) The proximity of the residences of the parties. The parties live fairly close to each other. The proximity will not be a detriment to any type of arrangement. This factor is neutral. Page 25 of 29 (12) Each party's availability to care for the child or ability to make appropriate childcare arrangements. Both parties have flexible work schedules and extended families to care for Child. This factor is neutral. (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. As with the previous Opinion, this factor above all other factors figures most prominently in the aggregate analysis. The Court is more convinced, however, the issue lies between the parents rather than the child. Both parties provide equally and care for Child. While their parenting styles do conflict, the real issue lies in their personalities and negative trust equity. Mother is logical, methodical, literal minded, seeks the help of professionals, and troubleshoots every issue. She is a planner and takes solace in the Order. Father is whimsical, impulsive, and adaptable, but has a natural anti-authoritative bent. He intuits rather than calculates. In a more perfect union, the two would complement each other. As it stands, they destroy each other. Everything is weaponized in passive aggressive emails and texts. Mother is “concerned” about Kung-Fu COVID protocols but does not realize she acted the same way with religious classes. Father is “concerned” about an unmasked beach picture, but allows Child to go to a nail salon. Haircuts are within weeks if not days of each other. Father bombards Mother with texts about Child when Mother informs him Child got carsick. Mother fails to realize this is no doubt in response to her inquiries about Child’s fall and tooth. Mother does not let Child attend a second Trick-or-Treat because she does not feel adequately compensated with time. Father believes more in the spirit of the Court Order while Mother believes in a literal reading. Page 26 of 29 And so on. Mother and Father are both right and both wrong. The Court cannot necessarily fault either party for acting the way they do except to say both parents are most egregiously at fault for continuously failing to see that this is not about Child, but rather about themselves. While the Court is willing to entertain any number of contempt petitions to enforce courtesy, it will not do so at the expense of Child. This factor is neutral. (14) The history of drug or alcohol abuse of a party or member of a party's household. This factor is neutral/does not apply. (15) The mental and physical condition of a party or member of a party's household. This factor is neutral. (16) Any other relevant factor. The Court continues to note, as it did in its previous Opinion, that despite critical analysis of the parties, they are human, have worth, love people, and are loved by people. Their child, produced by their union, is amazing. Their parenting styles are different, but complementary and Child will be well served by both of them. It is the conflict though, the years of hurt and pain, the domestic oscillation that does not serve the best interest of Child. This factor is neutral. DISCUSSION The Child Custody Act provides that, “upon petition, a court may modify a 33 custody order to serve the best interest of the child.” It is within the trial court’s purview as finder of fact to determine which enumerated best interest factors are most 33 23 Pa.C.S. § 5338(a). Page 27 of 29 34 salient and critical in each particular child custody case, but “\[a\]ll of the factors listed in 23 Pa.C.S. § 5328(a) are required to be considered by the trial court when entering a 35 custody order.” It is, therefore, within the trial court's discretion based on the record before it to determine the relevant weight to give each of the Section 5328(a) factors in 36 a particular case, but ultimately, when a trial court orders a form of custody, the best 37 interest of the child is paramount.” As stated in its previous opinion, both parents are fit vis-à-vis their interactions with Child. Ms. Spriggle, Dr. Shienvold, and the GAL have all testified they see no safety concerns with Father, and it would be in the best interest of Child for Father to share equally in custody. In its previous Opinion, the Court concentrated on Father’s wrongful conduct as a dispositive factor though. That is, conduct designed to ‘get back 38 at’ or ‘punish’ Mother rather than effectuate the best interest of Child. While the professionals largely focused on Father’s ability to parent, the Court focused on the totality of the circumstances, to include Father’s willingness and ability to co-parent. The Court opined that it was in Child’s best interest that Mother be awarded primary custody because Father’s attitude “bears adversely” on his fitness as a custodial 39 parent. It is abundantly clear, however, that this case is not about Child. It is about deep- seated distrust and animosity. Both parties weaponize Child and gather resources to prove their case in passive aggressive emails lobbed back and forth. The parties barely communicate in a meaningful way. The current order, unfortunately, impairs communication and creates an imbalance. While the Court originally crafted the order to minimize Father’s disruptions, the order creates more disruptions. Most of Father’s time falls on the weekends which impairs his ability to effectively parent during the week and take more responsibility for mundane tasks. Both parents attempt to find activities to fit into ‘their time’ rather than agree on activities that span the week. Further, the Order as 34 M.J.M. v. M.L.G., 63 A.33d 331 (Pa. Super. 2013) appeal denied 68 A.3d 909 (Pa. 2013). 35 J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)(emphasis in original). 36 Id. at 289 (citing M.J.M., 63 A.3d at 339). 37 T.M. v. H.M., 210 A.3d 283, 288 (Pa. Super. 2019), appeal denied, 216 A.3d 1018 (Pa. 2019)(citing P.J.P. v. M.M., 185 A.3d 413, 417 (Pa. Super. 2018)(internal citation omitted)). 38 For Example, trying to get her fired and then evading the question about it. 39 Opinion, 34, Bowman, No. 2016-00825 (August 3, 2020)(quoting Rosenberg v. Rosenberg, 504 A.2d 350, 352-353 (Pa. Super. 1986)). Page 28 of 29 construed grants Mother unintended long periods during vacation. Child can go nine days without seeing Father. Suffice it to say the current order is counterproductive. The answer, however, is not to deny Father more time, as again, Child is well served by both parents. The question is how to encourage meaningful communication, standardize a schedule to provide an even split of parental duties, minimize disruptions, and give some stability to not so much Child, but rather the parents. Child is seven. There will be 11 more years of soccer games, parent-teacher conferences, graduations, school events, Kung-Fu, and religious classes. The parents need to communicate and cooperate more, not less. The Court could order a week-on/week-off which would minimize contact between the parents but would create two separate worlds. Scheduling would be impaired and almost certainly take place on the respective parents ‘own time.’ Further, conventional wisdom dictates younger children need more frequent contact with parents. A ‘2-2-5’ would give some stability in that the parent’s respective two days would be consistent and allow for better scheduling. Such a schedule, however, implicates Monday school holidays. A ‘2-2-3’ would entail more frequent exchanges, effectively randomize the Monday school holidays, and force more communication. The downside of course is that it would force more communication. It appears to the Court that a ‘2-2-5’ would be the least-worst choice. The set days would give the parents some stability, force more joint decision making, and allow for better scheduling while maximizing time Child spends with both parents. The Court will allow for a later exchange on holiday Mondays to alleviate that issue. BY THE COURT: Matthew P. Smith, J. Tabetha A. Tanner, Esq. 2145 Market Street Camp Hill, PA 17011 Todd M. Mosser, Esq. th 448 N. 10 Street, Suite 502 Philadelphia, PA 19123 Page 29 of 29