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HomeMy WebLinkAbout2016-03340 VASYL S. KOVALCHUK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION YELENA V. KOVALCHUK, NO. 2016-03340 CIVIL TERM Defendant OPINION and ORDER OF COURT AND NOW, this 30th day of September, 2022, following hearings on Fathers Petition for Civil Contempt and the parties dueling requests for modification of the custody order, the Court enters the following: BACKGROUND STATEMENT This matter involves a long and trying custody action interwoven with a similarly situated tortious divorce action involving the same parties. The 189 docket entries on the custody action alone, tells a sad and ugly tale of a contentious battle regarding the welfare of the subject minor children causing the inextricable disorder this fractured family unit is now facing. Mother is self- represented and Father has private counsel. For the purposes of this round of litigation, the 1 pertinent background includes a March 14, 2022, decision and order that was entered finding Mother in willful contempt of the shared legal provision of the July 19, 2019 custody order; directing Mother to pay a fine of $500.00 to Father in compensation for the violation of his legal rights and resulting mental anguish; and ordering Mother to pay all reasonable counsel fees specifically associated with the contempt finding. In accordance with the July 19, 2019 custody order, the parties were following a shared physical custody schedule on a week on/week off 1 The March 14, 2022 decision and order also addressed Fathers request for the subject minor children to receive COVID-19 vaccinations, which they and Mother opposed and ultimately said request was denied by the court. Mother filed a timely Notice of Appeal of the March 14, 2022 decision and order and the appeal is awaiting decision by the Superior Court. basis. The subject minor children would have been residing with Father at the time the March 14, 2022 decision and order would have been received by the parties from March 11, 2022 until after school on March 18, 2022, when they would have gone to their Mothers residence. Extraordinarily, the next time the subject minor children were to return to Fathers care on March 25, 2022, they took the bus from school to Mothers home and have not returned to Fathers custody for any substantial period of time. Father filed a Petition for Civil Contempt for Disobedience of a Custody Order and a Modification of a Custody Order on March 30, 2022 as a result of the subject minor children remaining in Mothers physical custody in disregard to the July 19, 2019 custody order. On April 14, 2022, Mother filed a Petition for Modification of Custody from Weekly to Sole Physical Custody to Defendant. The parties attended a custody conciliation on April 29, 2022 during which no agreement was reached, but Father identified he was now requesting primary physical custody due to parental alienation along with a contempt finding. Mother claimed the subject minor children did not want to see their Father and the custody order should be modified to reflect the preference of the children. Following receipt of the April 2022 Custody Conciliation Report, the court issued an Order on May 4, 2022 directing that the July 19, 2019 Order remain in full force and effect with the modification that the custodial parent was to ensure the children were attending their counseling appointments as well as scheduling a pretrial conference and trial on the pending petitions. By way of separate May 4, 2022 Order, the court appointed Hannah Herman-Snyder as Guardian ad Litem (GAL) for the subject minor children, M.K. and J.K. On May 9, 2022, the court issued an Order clarifying proceeding dates and deadlines due to some scheduling conflicts of the GAL. The Pre-Trial Conference was scheduled for June 8, 2022 with the notation that at the conclusion of the Pre-Trial Conference, the GAL would provide record testimony on her report and recommendations and would be subject to cross-examination by both parties. The custody hearing was scheduled for June 21, 2022 at 1:00 pm. On June 9, 2022, the GAL filed the Report of the Guardian ad Litem, which, following a comprehensive discussion, recommended the children continue to engage and attend upcoming and future counseling appointments with their therapist, Jamie Orris; the goal of the counseling appointments was to work towards achieving the currently ordered 50/50 custody schedule; Father and Mother were to participate in the counseling process as directed by Jamie Orris; and the 50/50 custody schedule was to resume no later than the beginning of the 2022/2023 school year. As a result of discussions at the Pre-Trial Conference as well as the testimony provided by the GAL, the court issued an Order dated June 10, 2022 scheduling an in camera interview of the children on July 6, 2022 and directed the custodial parent to take both children to previously scheduled, specifically enumerated (listing dates and times) counseling sessions with Ms. Orris. In addition, the parties were ordered to cease discussing the report, recommendations or testimony of the GAL with the subject minor children. On June 21, 2022, the custody hearing did not conclude as, despite ample time provided, Mother did not conclude her cross-examination of Father and she also had not testified. No findings were rendered at this hearing and an Order dated June 21, 2022 was issued identifying a second date of testimony for July 7, 2022 at 9:00 a.m. Notably, on June 22, 2022, Mother filed a transcript request seeking a copy of the June 21, 2022 proceeding and checked the requested transcript was associated with a Childrens Fast Track Appeal. During Mothers testimony at the July 7, 2022 custody hearing, she refused multiple times to answer a direct question from the court and ultimately was temporarily detained to permit time to identify and appoint criminal counsel to represent her and advise her of ramifications of ongoing refusal to answer the question she had been ordered to by the court. Ultimately, and following the opportunity to confer with criminal counsel, Mother pled her Fifth Amendment right to not self-incriminate in response to the courts question. As a result of the significant time delay required to provide Mother with criminal counsel, the custody hearing once again was not able to conclude as a portion of Mothers direct testimony and all of her cross-examination testimony was incomplete. The GAL was able to appear by way of Zoom and testify to an updated oral report and recommendation regarding M.K. and J.K. As a result of the testimony and evidence to that point, including all of the recommendations of the GAL, the court entered an Order at the conclusion of the July 7, 2022 custody hearing directing the Father to have sole physical custody of M.K. and J.K. effective immediately, with Mother having only supervised partial physical custody. The supervision was to be provided by a third-party agency that offers full supervision of visits in custody cases. Aside from supervised visitation there was to be no communication between Mother and the subject minor children. Father was also granted sole legal custody. The parties were directed to appear in court on August 4, 2022 for the conclusion of Mothers testimony and cross-examination of the GAL regarding her updated report and recommendations. On July 8, 2022, Father filed a Motion for Return of the Children with Assistance of Law Enforcement. According to Father, maternal grandfather took M.K. and J.K. to Mothers home while the court was dictating the July 7, 2022 Order from the bench. It was made known to the court that the children had arrived at the courthouse sometime during the July 7, 2022 hearing despite that it was made clear the subject minor children were not to be present and had already been interviewed in camera on July 6, 2022. On July 7, 2022, Father sought the assistance of law enforcement to transfer custody of the subject minor children to him as Mother and maternal grandparents were unwilling to facilitate the transfer. Law enforcement would not assist and Father requested an Order that directed law enforcement to assist with the transfer of custody. On July 8, 2022, the Honorable Albert H. Masland signed the emergency order directing that law enforcement assist with the immediate transfer of custody of the children to Father. On July 20, 2022, Father filed a Petition for Special Relief citing to the Uniform Child Abduction Prevention Act. Father alleged M.K. and J. K. had returned to his custody on July 8, 2022 but snuck out of him home at approximately 3:00 a.m. on July 10, 2022 and it was believed they were back at Mothers residence either with maternal grandparents or Mother and maternal grandparents. On July 20, 2022, the court issued an Order directing law enforcement to take reasonable action to locate the children and return the children consistent with the existing custody determination (Fathers sole physical custody subject to Mothers partial supervised custody). On July 25, 2022, the GAL filed a Supplemental Report of the Guardian ad Litem. The updated recommendations of the GAL included Father exercising sole legal custody while keeping Mother updated and informed of legal decisions. Father was to select reunification counselors and upon selection of a particular counselor, Mother and the children were to work with the reunification counselor in an effort to reunify the children with Father. Father was to be incorporated into the reunification counseling but the initial focus was to involve Mother and children. The GAL recommended a return to the shared physical custody schedule of 50/50 unless Mother was unable to enforce the terms of the shared schedule, and, if the childrens defiance continued to result in safety issues the children were to be removed from Mothers custody, and placed into foster care until they agreed to return to Fathers custody. The GAL further recommended that if the children ultimately were in Fathers sole physical custody as a result of the aforementioned scenario, Mothers visits would be supervised by a third party at her expense with no further communication outside of the supervised visits. Finally, the GAL recommended law enforcement and children and youth services assist with the enforcement of the custody order. On August 4, 2022, the testimony was concluded at a hearing, however the record was held open at Mothers request for the purpose of her submitting a post-trial brief and written 2 opposition to the GALs reports. On August 9, 2022, Mother submitted Defendants Opposition to Report of the Guardian ad Litem and Defendants Opposition to Supplemental Report of the Guardian ad Litem. On August 17, 2022, Mother submitted a Post-Trial Memorandum. The record is not closed and this matter is ripe for disposition. FINDINGS 1. The parties are the parents of two minor children, M.K. who is 15 years old and J.K. who is 14 years old. 2. On July 19, 2019 and after a trial, the Honorable Thomas A. Placey entered an Order regarding the custody of the subject minor children, which dictated a shared physical custody schedule, week on/week off. 3. On March 14, 2022, following a trial on Fathers Petition for Contempt, the court entered an order finding Mother in contempt of the shared legal custody portion of the July 19, 2019 Order as a result of her renewing the passports of the children without Fathers knowledge and removing the children from the United States for vacation with specific monetary sanctions to include Fathers reasonable attorneys fees. 4. On March 30, 2022, Father filed the instant Petition for Civil Contempt alleging Mother had violated the aforementioned Order as the parties had a shared, 50/50 custody schedule and on March 25, 2022 when the Father was to begin a week long period of custody, the children rode the bus from school to their Mothers house and Mother refused to release custody of the children to him. Father further requested a modification of custody as part of his petition. 5. On April 14, 2022, Mother filed a Petition for Modification seeking sole physical 2 It is noted that during the proceedings Mother was referencing 23 Pa.C.S.A. § 5334 when cross-examining the GAL. During the preparation of this opinion, undersigned determined it is possible Mother was unaware that 23 Pa.C.S.A. § 5334 was suspended insofar as it (1) requires that a guardian ad litem be an attorney, (2) permits the guardian ad litem to represent both the best interests and legal interests of the child, (3) provides the guardian ad litem the right to examine, cross-examine, present witnesses and present evidence on behalf of the child, and (4) prohibits the guardian ad litem from testifying, pursuant to Pa.R.C.P. No. 1915.25. custody of the children alleging that she was not withholding custody of the children from the Father and the decision to not follow the week on week off custody schedule was grounded in the reasonable sentiments of both children without coaching from her. 6. At a custody conciliation held on April 29, 2022, Father claimed the Mother was engaged in alienation behaviors resulting in the children not wanting to visit with him and as a result he was requesting primary physical custody of the children and supervised visitation for Mother. Mother denied alienation and felt that the desires of the children should be followed resulting in her obtaining sole physical custody of the children. Both parties requested a custody trial. 7. On May 4, 2022, Hannah Herman-Snyder was appointed as Guardian ad litem for the subject minor children. 8. On June 8, 2022, a pretrial conference was held and in addition, the parties were notified by Order dated May 9, 2022 that the testimony of the Guardian ad litem would be taken following the completion of the pretrial conference on June 8, 2022. 9. On July 6, 2022, the court conducted a record, in-camera interview of both children (separately) regarding their preferences on the current custody litigation. 10. The court held custody hearings on June 21, 2022, July 7, 2022 and August 4, 2022 in which the parties, Jamie Orris and the GAL testified. 11. The pertinent section of the controlling July 19, 2019 custody order at issue in Fathers Contempt Petition is located at Paragraph 2 directing a 50/50 custody schedule, week on/week off. 3 12. The testimony of the GAL is as follows: 3 The GAL testified on three separate occasions during an almost 60 day period as the custody trial was unable to be completed absent several days of testimony. The GALs recommendations evolved along with the information she garnered in response to interim orders issued following the various custody trials including the childrens continued a. Different parenting styles between Mother and Father appears to be the th reason both children decided not to return to Fathers care on March 25, 2022. b. It would s physical custody and have Mothers periods of custody supervised given the current situation, age of the children and history of the action. c. Father has been very cooperative with the therapist for the children, Jamie Orris. d. There does not appear to be a single, clear catalyst resulting in the childrens refusal to have visitation with Father. e. Mother is bolstering with their Father by reiterating significant abuse allegations by Father towards her despite these allegations never being proven or established in prior proceedings. f. Children express stern parenting as abuse from Father, which the GAL sees as age-appropriate parenting. Mother and children are aligned in the theory that Fathers attempts to instill structure and have household rules is abusive towards the children. The GAL believes the children are mirroring Mother with these unsupported theories. g. Father is not cursing at the children or calling them names but is disciplining with a raised voice. The Mother is characterizing this as abuse to the children. h. The school the children attend has indicated that Father is the most involved with their schooling. There was a concern for J.K.s grades and academic performance during the 2021/2022 school year. It was a detriment refusal to have any substantive visitation with Father and their eventual running away behaviors. for Father to not have any physical custody of J.K. during the last few months of school based off her report cards. i. The GAL is concerned regarding involved with The GAL believes reunification will be difficult due to Mother. j. The GAL provided information concerning J.K.s summer school performance including her being behind on completing her summer school work and utilizing her phone inappropriately during class. k. Ms. Orris informed the children have been missing their counseling sessions including on July 5, 2022. J.K. did not attend the appointment at all and Mother brought M.K. approximately twenty minutes late. M.K. refused to go into the counseling appointment so a session was not held. l. As a result of the children not attending counseling with Ms. Orris and the concerns regarding J.M.s summer school performance, the GAL updated her recommendation at the July 7, 2022 hearing for Father having sole physical custody and Mother having only supervised visitation with a third party agency such as ABC House. She also recommended Father have sole legal custody as well. m. Following the July 7, 2022 hearing, the GAL learned J.K. completed her summer school program. Despite the fact that the children ended up being present at the courthouse on July 7, 2022, following the ruling of the court that the children be placed into the sole physical custody of Father, the children were transported to Mothers home. The children did return to Fathers custody on July 8, 2022, but in the early morning hours of July 10, 2022, the children left Fathers home by walking there. The police were involved on multiple occasions and on July 20, 2022 the children were returned to Father, but the children walked back to Mothers home. n. Due to the childrens running away behaviors as well as some emotional abuse concerns, Cumberland County Children and Youth Services had opened a case and investigation. If Mother was to have any aspect of physical custody, they would be requiring a FAST evaluation through ABC and parenting education. o. The recommendation of the GAL changed to 50/50 physical custody based upon her belief that the Mother would need to be fully engaged in the reunification process. It was her understanding the children were residing in Mothers home with the maternal aunt and Mother was residing elsewhere. p. The GAL recommended a different reunification counselor for the children. She also recommended J.K. be evaluated by a licensed professional regarding her academic struggles. q. The children continue to hold a victim mentality that they and Mother are the victims and this enforces bad behavior. Both children have presented with a flat affect. They do not see any concern with running away from their Fathers and informed that there is no discipline at Mothers house if they display bad behavior other than rare instances of cell phone removal. However, J.K. informed that Mother does not take cell phones away due to their refusal to go to their Fathers house because mom understands. r. Significantly, the children did not report to the GAL that Father and Fathers family disparages Mother and Mothers family as they both immediately informed the court during their individual interviews. s. Mother has been influencing the children to cause them to believe that their Father is not safe. If Mother cannot get the children to follow a 50/50 custody schedule, the GAL believes they would be considered dependent children. 13. The testimony of the counselor for the children, Jamie Orris, is as follows: a. Ms. Orris has been providing individual counseling services to both children for approximately a year and a half to two years. b. Historically the Father brought the children to counseling and was the primary parent involved in their counseling. During the time period the physical custody scheduled was 50/50 and being followed, the children did not have missed appointments. Since March 25, 2022, the children have missed two to three appointments. c. The children had disagreements with their Father that they discussed in counseling to include their displeasure with their Father having them clean their rooms or requiring completion of homework in the case of J.K. d. Ms. Orris felt that the relationship between the children and their Father improved during the course of the therapeutic relationship. She found that there were better ways Father could have disciplined the children around household chores and schoolwork, but that nothing the Father did was abusive. e. More recently, Father and J.K.s relationship became strained again over the issue of academic performance and schoolwork. f. Ms. Orris recommended the children continue in counseling. g. She did not find the difficulties J.K. was experiencing in school or the struggle to have her perform homework as atypical for J.K.s age group. Father tried to sit down with her every night to ensure she got caught up on her work and this intensified their frustrations with each other. h. J.K. reported to Ms. Orris that she does not do homework when she is at Mothers house. 14. During their individual interviews that took place in camera, the children both identified the same preference, that they be able to pick and choose when they see each parent and direct the custody schedule as well as their day-to-day activities. Both children were steadfast in their position that they do not wish to see or spend time with their Father at this time and were unable to identify a time in the near future when they would want to visit him again. The preferences of the children were not well-reasoned and were lacking in reliability. Their preferences were based on the following reasons: a. Both children led the interview with their belief the Father disparages the Mother and their Fathers family disparages their Mothers family. When asked specific examples, J.K. identified a time when her Father said her Mother was stupid because she did not understand something that he was texting her about. When asked for additional examples she had very vague, non-descript examples and when pressed about the stupid example, she appeared to change her testimony. M.K. identified completely different, but equally vague examples of Fathers frustrations with Mother not understanding him when texting indicating that he would state Mother was doing something incorrectly. This line of testimony curiously was not reported or even brought up to the GAL during her investigation. b. Both children were able to identify an explanation as to why they both stopped visiting their Father on the date of March 25, 2022 and both claimed that they did not discuss a plan or a decision to stop visiting their Father with each other or Mother. Both stated that their Mother did tell them that it was their Fathers week and that he was at her house to pick them up, but neither could explain why then on that specific date they refused to go to Fathers house. c. J.K.s rationale for not wanting to visit her Father was related to his yelling at her concerning her homework or demonstrating displeasure about her room. She also vaguely referenced her Father being abusive to her Mother when they all lived together. d. M.K.s rationale for not visiting his Father was extremely non-descript aside from repeatedly saying he was not comfortable. After being pressed multiple times on the issue, M.K. identified a time when his Father hit him approximately six years prior. When asked for me details about the incident, M.K. described a push on the shoulder as a result of behavior he was displaying that frustrated his Father, but he could not remember exactly what he was doing at the time. 15. Fathers relevant testimony is as follows: a. Father lives alone aside from the children when they are in his physical custody. b. The 50/50 custody exchange day was Fridays. On Friday, March 25, 2022, Father was to start his custody week. Instead of taking the bus to th Fathers house on March 25, they took the bus to their Mothers house. c. The Father last full week of custody with the children was from March 11- thth 18 and on March 17, M.K. expressed excitement about returning to Fathers custody concerning a guitar they had recently fixed. d. On March 25, 2022, there was a change in the communication between the children and Father. The childrens texts with Father were short and disrespectful and the children were saying I dont have to and I dont want to with respect to visitation with Father. e. Father went to Mothers house after the children did not come to his house after school on March 25, 2022. M.K. came to Fathers car and said he should speak to Mother about it. Father was texting Mother to ask why the children were not following the custody schedule. M.K. came back out to Fathers car and he said it was his decision and he was staying with his Mother. Mother never came to Fathers car to talk to Father about the situation. f. Mothers position is that she is not withholding custody but she is not forcing the children to visit their Father. Father and his mother returned to Mothers house when his next scheduled custody week arose on April 8, 2022. The children would not agree to go with their Father for his next custodial week. Mother communicated to Father that if his family came to her home again without prior permission she would seek a restraining order. g. Father attempted to regain custody of the children during his custodial periods by going to Mothers house a total of nine times after March 25, 2022. Mother always agreed to talk to the children and said she was not withholding custody, but she did not take any active steps to see that the children went with their Father. Father stopped going to Mothers home in accordance with the recommendations of Ms. Orris. h. Mother offered visitation to Father on two occasions but both times included the Mother being present and resulted in the Father being uncomfortable about the situation. Father requested Mother assist in the transfer of custody by walking the children to his car but she refused to do so. i. Mother utilizes the differences in parenting styles to manipulate the children into believing the Father is abusive because he requires them to clean their rooms and do their homework. Father believes his parenting style is focused on meeting the childrens educational, social and developmental needs while her parenting style is focused on being their peer as opposed to their parent. j. Fathers request that the Mothers physical custody be restricted to supervised by a third party was based on his belief that without that layer of protection, the Mother will continue to poison his relationship with the children until they no longer want any relationship with him at all. k. Father denied disparaging Mother or her family in the childrens presence at anytime since their separation in 2016. Mothers text communications to Father called him an idiot. Father has followed the recommendations of all counselors and GALs who have been involved in with the children. Father was the primary parent who would communicate with school personnel regarding concerns about the childrens academic performance and more specifically the issues J.K. was having during the 2021/2022 school year. School meetings were scheduled and held and communicated to Mother, but Mother did not attend. l. J.K. missed five full days of school, unexcused since Mother unilaterally took sole physical custody on March 25, 2022 and M.K. missed two full days of school, unexcused since March 25, 2022. 16. Mothers relevant testimony is as follows: a. Mother filed a Modification Petition because the children refused to go to their Fathers house. On March 25, 2022, when the children came home to her house instead of going to their Fathers house in accordance with the custody schedule, she was surprised. She had been planning on going on a trip out of town with a third party and was packing for the trip when the children arrived unexpectantly at her home. b. Mother asked the children what happened and she was in the process of doing laundry and packing. She asked J.K. why she was at her house and not Fathers house, but Mother did not initially testify as to what J.K.s response was to the question. When asked how she learned the children decided they were not going to their Fathers house, she again did not provide a direct answer to the question. This entire line of testimony is discredited. Mother was unable to provide clear and specific answers to questions concerning her discussions with the children about why they appeared at her home instead of Fathers home and the conversations that followed when they did arrive at her home (completely unexpectedly according to her). A negative inference is taken as a result of Mothers failure to answer direct questions about what her conversations were with the children on this date. c. In the weeks following March 25, 2022, Mother encouraged the children to talk to their Father and told them to physically talk to him face to face when he showed up on March 25, 2022. When asked if she ever took the children to Fathers house so he could exercise custody after March 25, 2022 she said she did take them to his house so they could gather up belongings to take to her house. She said she also suggested they go to their Fathers house and talk to him at one point, but M.K. said he would jump out of the car so she did not do so. d. Mother wanted the court to be aware the childrens interests and goals had changed since the last order was issued and they were refusing to go to Fathers house. She was seeking sole/primary physical custody of the children because she felt that she would be more flexible with allowing the children come and go as they requested to include their attempts to find jobs. e. Mother claimed she has not talked to the children since prior to the July 7, 2022 hearing, however between March 25, 2022 and July 7, 2022, she said she encouraged the children to have contact with their Father because if she tragically passed away, they needed to have their Father in their lives. She said they were not comfortable to see their Father at that time, but said maybe they would at a later date. f. Mother felt the children were more relaxed and happier at her house while in her care because Father yells at them causing them stress. g. Mothers explanation as to why the children were not attending all their counseling sessions with Ms. Orris since they unilaterally remained in her sole physical custody was not believable. Mother could not remember if J.K. had five unexcused absences from school between March 25, 2022 and the end of the school year, which was information already testified about by the GAL. h. Mothers testimony about Father falling asleep at a red light while driving the children in the car was not credible as Mother could not remember what year the incident occurred and acknowledged there were no court filings regarding the incident. 17. As a result of the evidence presented Father requests primary physical custody of the children with supervised visitation for the Mother as well as a finding of contempt on his Contempt Petition. Mother requests sole physical custody of the children as part of her Modification Petition and further suggests the children be able to decide and drive the physical custody schedule. DISCUSSION In deciding the Modification Petitions filed by the parties in this trying custody action, the evidence presented at the multiple hearings was carefully analyzed and applied to the sixteen 4 best interest custody factors. The factors overwhelmingly favor Father demonstrating the best interests of the children are better served with Father having primary physical custody and overriding legal custody. Unfortunately, this determination results in a quandary for the court to best direct the parties to adhere to a physical and legal custody schedule that clearly has been disregarded by Mother for the last six months as she has been unable to follow the 50/50 custody schedule that was in place from March 25, 2022 until the July 7, 2022 interim Order was issued directing the children into Fathers sole physical custody with only supervised visitation for Mother. There has never been any indication based upon evidence presented at the hearings as well as emergency filings that the children have been in Fathers physical custody since March 25, 2022 other than approximately two to three overnight periods in the month of July 2022. The credited evidence also establishes Mothers ongoing contempt of Court. It is evident that Mother claims to encourage the children to have contact with their Father, but actions speak much louder than words. She was unable to give any specific examples of what she has done to follow the physical custody schedule/s ordered by this court in the last six months other than a 5 few meek attempts to place Father in awkward situations. In addition, when asked to identify if she took active steps to have the children follow the custody schedule such as drive them to Fathers house, she answered affirmatively. When this topic was explored further, the court 4 Attached as Exhibit B is the courts analysis and factor outcome regarding the best interest custody factors. 5 Mother suggested Father just coincidentally show up at the mall when she had plans to be there with J.K. and also offered to have a joint dinner with him, her and the children on for Fathers Day. learned she did not drive them to Fathers house to drop them off, but instead she had them gather belongings to bring to her house. All evidence points to the need for the children to be in Fathers sole physical custody for their best interests as well as a finding of contempt against Mother for her continued violations of court orders, however, the question remains how to ensure such a decision and order will be followed and enforced. The court is constrained to focus on the best interest of the children and identify a custody schedule bearing in mind the sixteen best interest factors despite Mothers thumbing of her nose at each and every order of court issued. Fathers Modification Petition and Petition for Contempt are hereby GRANTED. Mothers Modification Petition is DENIED. For the reasons stated in this opinion, in which the attached best interest custody factor determinations were made as a result of analyzing the evidence presented, the following Order is now entered: ORDER OF COURT AND NOW, this 30th day of September, 2022, following hearings on Fathers Petition for Civil Contempt and the parties dueling requests for modification of the custody order, the Court enters the following: 1. Legal Custody: Vasyl S. Kovalchuk shall have sole legal custody of the Minor Children, M.V.K. and J.V.K. Father shall make all major non-emergency decisions affecting the Minor Children's general well-being, including, but not limited to, all decisions regarding their health, education and religion with a view toward obtaining and following a harmonious policy in the Children's best interests. Father shall notify Yelena V. Kovalchuk ), of any activity or circumstance concerning the Children that could reasonably be expected to be of concern to her. Neither party shall attempt, or permit anyone else to attempt, to alienate the affections of the Children from the other parent. Pursuant to the terms of 23 Pa.C.S. § 5336, each parent shall be entitled to all records and information pertaining to the Minor Children, including, but not limited to, medical, dental, religious or school records, and the residence address of the Children. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. With regard to any emergency decisions which must be made, the parent having physical custody of the Child at the time of the emergency shall be permitted to make any immediate decisions necessitated thereby. However, that parent shall inform the other of the emergency and consult with her or him as soon as possible. 2. Physical Custody: The physical custody schedule will be amended as follows: Father shall have primary physical custody of the children subject to the following provisions: a. Mother shall have supervised visitation with the children to be fully supervised by ABC in Carlisle. Visitation shall be no less than four hours every other week unless there is a written recommendation from a therapeutic reunification counselor to increase or decrease Mothers visitation. Visitation at ABC will be at Mothers expense. b. Mother is directed to immediately relinquish custody of the children to Father by packing up their belongings in her household needed for their day-to-day care and taking the children to the home of Father and dropping them off into Fathers care and custody. For each full day that the children are not in Fathers physical custody, Mother shall pay a fine of $20.00/day to Father. c. If primary physical custody is established with Father and the other provisions of this order are complied with, either party may file a motion for status conference in order to modify the physical custody schedule. 3. Evaluation: Father shall contact the offices of Reigler Shienvold and Associates in order to schedule a forensic evaluation by Dr. Arnold Shienvold to perform in regard to parental alienation and reunification. Both parents shall fully cooperate with the evaluation and ensure that the children are available to be interviewed by Dr. Shienvold as requested. Both parents shall follow any and all recommendations of Dr. Shienvold upon the conclusion of his forensic evaluation. Any costs associated with the forensic evaluation will be Mothers responsibility. 4. Relocation: A parent proposing to change residence of a Child which significantly impairs the ability of a non-relocating parent toexercisecustodial rights shall follow the procedures required by23Pa. C. S. §5337 and Rule of Civil Procedure 1915.17 as set forth in Exhibit A attached to this Custody Order/Parenting Plan. BY THECOURT: Carrie E. Hyams, Judge Michael Gleeson, Esquire Gleeson & King PC th 20 South 36Street, Ste. 100 Camp Hill, PA 17011 michael@gleesonandking.com Yelena V. Kovalchuk 19 Ashburg Drive Mechanicsburg, PA 17050 alenakoval2006@gmail.com Hannah Herman-Snyder, Esquire GAL CUSTODY CHECKLIST – EXHIBIT B FACTOR Discussion FACTOR OUTCOME Which party is more likely to Father was surprised when the children did not This Factor favors the encourage & permit frequent take the bus to his house on March 25, 2022, Father. & continuing contact between when he was to next have custody following the the child & another party last custody contempt order being issued. There was a change in communication on March 25, 2022, the children began to ignore Father’s text communications and began telling Father: “I don’t have to or I don’t want to.” Father went to Mother’s house to pick the children up on 3/25/22, both children refused to leave with Father and stayed at their Mother’s house. Mother did not come out to the car. Father came to Mother’s house at his next scheduled custodial period with paternal grandmother and paternal grandmother rang the doorbell. Mother indicated she was not “holding” kids and would not “force” the kids to go to Father’s house. On April 22, 2022, Mother texted Father she would file for a restraining order if Father returned to the house with any family members (following Father’s appearance with paternal grandmother). Mother’s only suggestions for contact after March 25, 2022: (May 15, 2022 – meet at mall unexpectedly while she was there with J.K. and on June 17, 2022, she suggested a joint dinner involving her for Father seeing children on Father’s Day). Mother was unable to identify how she has encouraged the children to have contact with Father and acknowledged she only drove them to his house so they could pick up belongings they wanted to her at her house. As the children have followed a 50/50 custody schedule for years without incident, then the children refused to go to Father’s house after the contempt ruling absent clear, articulated and specific reasons, the credited evidence demonstrates the Mother was not encouraging contact with Father. Mother claimed to be surprised that the children did not take the bus to their Father’s house on March 25, 2022 as she was supposed to be going out of town that weekend and was packing. She made a point to repeat this story of packing and being surprised several times to the point it became unbelievable. Mother changed her testimony several times on the topic of why the children stopped visiting Father. She initially said M.K. was not very talkative about why and later gave examples of how he communicated many reasons(refused to hear them and had a high temper, gets very aggravated). She claimed she encouraged the children to talk to their Father. But never had any examples of what she did to encourage contact between the children and Father. The present &past abuse No competent or credible evidence of physical This Factor favors committed by either party or abuse by either party. The concerns related to Father. member of the party’s Father’s parenting style is addressed by the household, whether there is a GAL’s report and credited testimony of the continued risk of harm to the therapist of the children. The concerns related child or an abused party & to Mother’s manipulation of the child in terms which party can better of their relationship with Father is addressed provide adequate physical by the GAL’s report. Mother is deemed to safeguards & supervision of have interfered and manipulated the children the child. to a degree that her household is not appropriate for the children absent a supervised setting for a period of time until she is capable of demonstrating refrain from continued manipulation. Father requires the children to complete This Factor favors The parental duties homework and clean their rooms. Ms. Orris Father. performed by each party on indicated that J.K. has informed that she does behalf of the child. not do homework while at Mother’s house. Mother has historically not been involved or taken the children to necessary counseling appointments or involved herself in educational meetings. The credited evidence demonstrates that Mother’s parental duties are lacking and Father has been much more involved in ensuring the needs of the children are met. The need for stability & Father is very focused on ensuring the This Factor favors continuity in the child’s children’s education and that the children have Father. education, family life & continuous contact with paternal and maternal community life. relatives. Father has seen that the children are keeping up to date with their schoolwork. The children may not appreciate Father’s more authoritarian style to ensuring they are completing schoolwork, but the credited evidence demonstrates Father’s commitment to the children’s education. The availability of extended Paternal relatives live nearby. Paternal Aunt This Factor is equal. family also lives nearby and had a good relationship with the children until March 25, 2022, when they stopped communicating with Father. Maternal grandparents and maternal aunts and uncles also live in the area. The child’s sibling No siblings. N/A. relationships The well-reasoned preference The children’s preference remains a puzzle. The children were of the child, based on the Their same time decision to not visit their unable to offer a child’s maturity & judgment Father is not based on any palpable reason. It preference that was well- is not well-reasoned, because the children are reasoned and for that unable to articulate a clear, documented reason reason, this Factor to suddenly stop visits. The rationale provided favors Father. appeared rehearsed and oddly scripted during the individual interview of each child. The attempts of a parent to Mother has directed the children to provide This Factor favors turn the child against the false information to Father. Mother believes Father. other parent, except in cases the children should be able to do what they of domestic violence where want to do as far as visitation with Father, reasonable safety measures schoolwork, therapy, etc. Mother made are necessary to protect the unsupportive claims that Father was abusive to child from harm. her and the children and this theory has been proven false. It is evident that this false narrative has trickled down to the children. Father believes the Mother is manipulating the children and turning them against him. Father has never disparaged Mother to the children since separation and throughout the custody case and this testimony is credited. Mother’s false narrative of abuse has impacted the children as there is no other explanation as to why the children have followed a 50/50 custody schedule for years and now refuse to follow it without any specific rationale. Father follows the recommendations of Ms. This Factor favors Which party is more likely to Orris and the prior and current GAL. He is Father. maintain a loving, stable, willing to do anything to improve his consistent & nurturing relationship with the children. He has a clear relationship with the child interest in respecting his children’s emotional adequate for the child's needs. Mother clearly places her own emotions emotional needs before her children. Her unresolved issues with Father and resultant disdain for him causes her to manipulate the children to believing the Father is not a good Father. Mother states the children had all these concerns about Father and his anger yet she was not involved in the children’s therapy with Ms. Orris and did not communicate these concerns to Ms. Orris in 2020, 2021 or prior to March 25, 2022. Which party is more likely to Father provides more structure and focuses on This factor favors attend to the daily physical, ensuring the children complete homework and Father. emotional, developmental, have household chores. He assists the children with their homework if needed. Father attends educational & special needs school meetings and the Mother has generally of the child failed toattend school meetingsregarding J.K. Since March 25, 2022 when Mother unilaterally assumed sole physical custody, J.K. had 5 full day unexcused absences from school andM.K. has 2 full day unexcused absences from school. She did not ensure the children attended therapy with Ms. Orris despite that it was court ordered. The proximity of the Parties remain in close proximity and have not This Factor is equal. residences of the parties changed residences for approximately five years. Each party's availability to Father works from home and children do not This Factor is N/A. care for the child or ability to require childcare for short periods of time due make appropriate child-care to their age. Mother also does not need to arrangements arrange for childcare if/when she is working. The level of conflict between Mother has called the Fatheran idiot. Mother This Factor favors the the parties & the willingness refuses to provide Father with weekly reports, Father. & ability of the parties to including since this custody provision was cooperate with one another. reiterated in a June 2022 Order. Mother A party's effort to protect a traveled with the children outside of the United child from abuse by another States in 2021 without the Father’s knowledge party is not evidence of and consent. Mother has failed to demonstrate unwillingness or inability to any credible of evidence of abuse to justify her cooperate with that party inappropriate behaviors, to the contrary, her behavior is indefensible. Mother has suggested co-parenting counseling, but it is evident by her actions over the yearsshe has no invested interest in co-parenting and this resource would be a waste of time and finances for both parties. Not applicable in this case. N/A. The history of drug or alcohol abuse of a party or member of a party's household The mental & physical Mother has been found to be in contempt of This Factor favors the condition of a party or court multiple times by multiple judges Father. member of a party's presiding over the custody action. Mother has household demonstrated that she encourages or instructs the children to lie to Father about their whereabouts. The evidence supports that Mother’s household does not meet the children’s needs in regards to their mental well-being. Any other relevant factor Ms. Orris, the therapist for the children As a result of the indicated that the children should continue recommendations and with her in counseling and while there was a testimony of both the 50/50 custody schedule in place the Father therapist for the children always brought the children to appointments, and the GAL, this Factor but now that Mother exercises unilateral sole favors Father. custody, both children have missed appointments. Children did express concerns about their Father such as he “told” his family things and theynot like that he had them keep their rooms clean. J.K. upset that Father was yelling about her school work. Ms. Orris felt there were better ways for Father to communicate frustrations, however he wasnot abusive. The GAL recommendations: J.K. struggles in school and this continued into summer school. On 7/5/22,because J.K. missed her summer school to go to camp, Mother did not bring J.K. to her appointment with Ms. Orris so she could do make up time. Mother showed up with M.K. twenty minutes late. She tried to reschedule with Ms. Orris. M.K. went to the appointment and said “I am not doing this I am walking out the door” and he got in Mother’s car and Mother left. CYS is looking at the emotional abuse allegation. It is recommended that the Focus of therapy move from Father to Mother so that she understands her role and the need to support Father’s role in the children’slives. The children display a Victim Mentality- Father vs. them. Mother does nothing to encourage contact with Father and only reinforces their bad behaviors by imposing zero consequence for not visiting and running away. They do not get punished at Mother’s house generally and she is more of a friend with the children rather than a parent. She sometimes takes away a cell phone as a form of punishment, but has never done this if the children do not go to Father’s house or run away from his house.