HomeMy WebLinkAbout2010-5624 Civil Term
BRADFORD K. STROCK, III, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
ANNE MARIE AHERN, :
DEFENDANT : 10-5624 CIVIL TERM
IN RE: CUSTODY
OPINION
Masland, J., April 20, 2012:--
I. BACKGROUND
“The most difficult evaluation in 17 years” is how custody evaluator
Deborah L. Salem (hereafter Ms. Salem) described this case. We do not offer
Ms. Salem’s description to excuse this imperfect opinion and order of court;
however, if we are fortunate enough to serve 17 years on the bench, we would
be pleased if no case surpasses this one in difficulty. Fortunately, because this
case is far from the final chapter, this decision need not be perfect, but it must be
1
practical to prevent an innocent child from becoming a “tragic figure.”
Procedurally, this saga began on August 30, 2010, when Bradford K.
Strock, III (hereafter Father) filed a complaint for custody and a petition for
2
genetic testing regarding his daughter Margaret (DOB October 25, 2009). Over
the ensuing 19 months there have been a plethora of pleadings from Father and
Anne Marie Ahern (hereafter Mother), including preliminary objections to the
Ms. Salem’s description of Margaret on March 14, 2012 the second day of testimony (hereafter,
1
references to the court’s notes will be cited as Day One, Day Two and Day Three).
2
Factually, the background on the parties’ relationship is replete with disputed allegations that will
be discussed, where relevant, in our analysis. What is not disputed is that the parties had a brief
affair in early 2009 and Margaret was born later that year.
10-5624 CIVIL TERM
complaint, three petitions for special relief, and one petition to modify. In
addition, there have been three conciliation conferences and two telephone
conferences with the conciliator. Following the second conciliation, the
Honorable J. Wesley Oler, Jr., scheduled a hearing for May 23, 2011, which was
continued at Defendant’s request to enable Ms. Salem to complete her
evaluation. The hearing was rescheduled for November 10, 2011 but was
cancelled because the evaluation was still pending. On November 30, 2011, the
action was assigned to us.
Finally, after 19 months of skirmishes, the battle was joined before the
court on March 2, 2012. Not surprisingly, two additional days of testimony were
required on March 14 and 16. At the conclusion of the hearing, the Court
addressed the relevant custody factors to enable the parties and their families to
hear our preliminary analysis. With the testimony still ringing in their ears, they
may not have heard much; however, they may “hear” even less upon receipt of
this order. Although we have decided to grant Father primary physical custody,
Mother will still have substantial parenting time. Therefore, we urge the parties to
look beyond the mythical bottom line of who “won” this battle and realize that this
is not about their rights, but rather, the rights and needs of a 2½ year-old child.
Our order is not carved in granite, but rather, is drawn in sand – and we will
continue to search the shifting sands for the firmest foundation and make
adjustments if the parties are unable to do so.
We acknowledged being almost overwhelmed in reviewing our notes, the
file, and exhibits. We grappled with the paralysis of analysis and the fear of
-2-
10-5624 CIVIL TERM
making the “wrong” decision. But, just as we afforded ourselves the luxury of
questioning the rightness of our decision, the parties would do well to question
th
the rightness of their seemingly intractable positions. As a 13 Century Persian
poet known as Rumi once said, “Out beyond ideas of wrongdoing and right
doing, there is a field … and I will meet you there.”
The findings and conclusions that follow are designed to provide a
meeting place where the parties’ perilously deep wounds may be healed before
they consume their child. We can point the way to healing, but only the parties
can apply the balm.
II. FINDINGS AND ANALYSIS
A. EXPERT TESTIMONY
Although Ms. Salem was retained at Mother’s instigation and her services
were paid by Robert Ahern, Mother’s father, she was called by Father because
her report substantially supported Father’s position. Upon receipt of the report,
3
Mother obtained the services of three psychologists to address the findings and
recommendations of Ms. Salem. We permitted all four individuals to testify as
expert witnesses. As the fact finder, we followed the same advice we give to
jurors in civil matters – just because someone is qualified as an expert does not
require you to accept their opinion. We considered not only “the witness’s
knowledge, skill, experience, training, and education, and whether [ ] the facts
Mother retained Dr. Christopher Royer (Dr. Royer) and Dr. Jonathan M. Gransee (Dr. Gransee)
3
for the express purpose of countering Ms. Salem’s report. Dr. Daniel J. Menniti was initially
approached in his capacity as a Catholic priest for the purpose of prayer support, something all
parties should consider, but also availed herself of his experience as a lawyer and psychologist.
-3-
10-5624 CIVIL TERM
4
the witness relied upon in reaching his or her opinion are accurate,” but also the
5
general factors regarding a witness’s believability.
After a careful assessment of the expert testimony and a review of their
reports, we find Ms. Salem’s testimony to be more competent, credible and
comprehensive. We do not question the professionalism of Mother’s experts,
but they were not exposed to the same depth and breadth of material as was Ms.
Salem. Moreover, they were called in at the eleventh hour to address perceived
problems with Mother and had no contact with Father. Due, in part, to these time
constraints, only Ms. Salem performed what the court considers to be a complete
custody evaluation – the others performed partial evaluations at best. We will
summarize below the salient aspects of the expert reports and testimony.
Mother’s experts were sought primarily to counter the results of two
psychological tests administered to the parties, the Minnesota Multiphasic
Personality Inventory-Second Edition (MMPI-2) and Millon Clinical Multiaxial
Inventory (MCMI-II). The concern with Mother’s MMPI-2 results was their
“marginal validity because of her excessive attempts to place herself in a positive
6
light.” Thus, when Mother went to see Dr. Royer, she told him “it looked like I
7
was hiding something on the personality evaluation.” In his testimony, Dr. Royer
related that Mother did not suffer any difficulties with validity in the test he
Pennsylvania Standard Civil Jury Instruction 4.80.
4
5
Pennsylvania Standard Civil Jury Instruction 4.20.
6
Plaintiff’s Exhibit 1, Report of Deborah L. Salem, CAADC, LPC, dated February 7, 2012, page
15 (hereafter Salem Report).
7
Defendant’s Exhibit 19, Report of Dr. Christopher Royer, Psy.D., dated February 25, 2012, page
1 (hereafter Royer Report).
-4-
10-5624 CIVIL TERM
administered, but confirmed that “[Mother’s] validity indicators were elevated …
8
[and Mother] was less open and forthcoming the first time.” Similarly, Dr.
Menniti referred to this portion of the MMPI-2 as the “lie scale” and confirmed that
the results of the test administered on behalf of Ms. Salem showed that “[Mother]
9
may have tried to give the answer she thought people wanted.”
Dr. Gransee also administered the MMPI-2 to Mother and concluded that
his results were consistent with Dr. Royer’s but not Ms. Salem’s to the extent that
10
the latter “suggested defensiveness and repressed hostility.” However, the
description of “profile validity” generated by Dr. Gransee’s MMPI shows that
Mother was still wrestling with her ability to be forthcoming:
The client presented herself in a positive light, attempting to show
that she has few psychological problems. This pattern suggests a
need to project a good image, high moral values, good self-control,
and freedom from psychological problems or human weakness.
Although this profile is within valid limits, it should be kept in mind
that the individual is perhaps responding in an effort to look good.
The resulting MMPI-2 profile interpretation may be an underestimate
of the individual’s present problem situation and an overly positive
11
view of her personal adjustment.
Mother’s apprehension with the MCMI-II administered on behalf of Ms.
Salem was due to the observation that Mother could have “a moderately severe
8
Dr. Royer, Day Two, direct examination.
9
Dr. Menniti, Day Two, direct examination.
10
Defendant’s Exhibit 27, Report of Dr. Jonathan M. Gransee, Psy.D., dated March 12, 2012,
page 16 (hereafter Gransee Report).
11
Gransee Report, page 15.
-5-
10-5624 CIVIL TERM
12
mental disorder at this time.” This was of particular concern when coupled with
Ms. Salem’s recommendation #5 – “Mother should be required to undergo a full
psychiatric and psychological battery based on the information presented by her
13
during this evaluation.” Ultimately, this is not an issue we must address
because Ms. Salem testified, after hearing the analysis of Dr. Royer, a neuro-
psychologist whom she greatly respects, that she would withdraw this
recommendation based on his testing and analysis.
Finally, we are compelled to address the concern raised by Mother that
Ms. Salem did not personally conduct the tests, but rather, had them conducted
and scored by other individuals. Although there may have been some ambiguity
in her report regarding who scored and or evaluated the data, it is ultimately a
red herring. Whenever we appoint a custody evaluator pursuant to Pa.R.C.P.
No. 1915.18, we include paragraph 9 from the suggested form, which states “the
evaluator may utilize the services of another qualified professional (e.g. to
perform additional services) without court approval.” We find that it is a common
and customary practice for custody evaluators to use qualified adjunct
professionals to assist them. It is entirely appropriate for Ms. Salem to use
professionals from outside her business, just as she uses assistants from within.
No matter who performed the testing, we are confident that the
psychological tests conducted for Ms. Salem were conducted in a similar fashion
by the other experts. Significantly, we concur with Ms. Salem assessment that
12
Salem Report, page 15.
13
Salem Report, page 23.
-6-
10-5624 CIVIL TERM
14
she augmented the testing with a much more thorough clinical review. Given
the relatively brief exposure of the other experts to only one of the parties, we
agree that “the other evaluations [took] a snapshot of the movie [Ms. Salem] was
15
looking at.” Just as Ms. Salem noted that the psychological tests contributed a
small percentage to her recommendations, beyond our concern with Mother’s “lie
scale,” the tests have little bearing on our opinion. Ultimately, the credibility of
Ms. Salem was bolstered by the findings of the other experts, the observations of
the court, and her professional commitment to do what is in the best interest of
the child and not what is in the best interest of the person who hires her. In the
sections that follow, we will weave in the salient points from the experts while
addressing the major focal points of the testimony as a whole.
B. CONSPIRACY AND CREDIBILITY
In terms of substantive issues, Mother’s concern that there is a conspiracy
to take Margaret away from her pervaded Dr. Salem’s report and much of the
testimony. The conspiracy begins with the suggestion that Zackree Grant
(Mother’s former fiancé) is the true father of Margaret or that Father and his wife,
Sally Strock, used Mother as a surrogate to have a baby. In either event, Mr.
Grant, his mother, Joanne Wiles, and his wife, Stephanie Lee Grant, enlisted the
Strocks to take Margaret away from Mother and, perhaps, give her to Mr. Grant
so that he could use Margaret’s bone marrow to treat his cancer. In the
16
alternative, the goal of the conspiracy is simply to ruin Mother’s life.
14
Ms. Salem, Day Three, rebuttal testimony - direct examination.
15
Ms. Salem, Day Two, cross examination.
16
Salem Report, page 6 and following.
-7-
10-5624 CIVIL TERM
Ascribing conspiracy theories to anyone is an all too facile way to discount
their credibility, and we must acknowledge that conspiracies do occur. However,
the nature, tone and intensity for the instant conspiracy were set by Mother in her
response to Ms. Salem’s standard parental questionnaire. Her response to the
first request - “List five specific issues that are causing tension in your life, other
than with your children and the other parent” - provides some context for the
conspiracy allegation:
Until Mr. Strock interjected himself upon our home and our family life
– there was no tension in my life. Mr. Strock and his family ARE the
tension in my life and that of my family. There is a lot of history
involved with this case. This relevant history involves over two years
of Mr. Strock, Sally Strock, and JoAnne Wiles working together
toward a unified end. This is not your typical custody evaluation.
The information on this questionnaire is only a small taste of
everything that has happened over the course of these two and a
half years. This is all very complicated in so many ways and Mr. and
Mrs. Strock were hoping to have won before anyone figured out what
they have been trying to do. I have done my best to connect the
dots so to speak and it is all one big scheme that started with one
person, JoAnne Wiles. They all took full advantage of the situation
when I left Zackree Grant and each did their best to achieve their
17
own goal, it is all falling apart now.
Over the ensuing 10 pages, Mother elaborated on the conspiracy in
response to the second request for a list of five issues causing tension “between
you and your child’s other parent/guardian.” The narrative is frenzied and
rambling and does little to clarify matters. Much of it is filled with alleged
conversations between the Strocks and the Aherns in general and between Mrs.
Strock and Margaret’s grandmother, Mary Elizabeth Ahern (hereafter Mrs.
Ahern), in particular. There are references to multiple third parties not involved in
-8-
10-5624 CIVIL TERM
the conspiracy, such as a friend of Mother’s, her former employer, a co-worker, a
police officer, physicians and a caseworker for Cumberland County Children and
Youth Services. We can understand why Ms. Salem threw up her hands and
suggested to Mother that she hire a private investigator. With or without a PI, the
court requires credible corroboration of allegations, which could have been
supplied through third party testimony.
Other than Mother and Mrs. Ahern, the only witness called to confirm the
conspiracy was a family friend, Mary Beth Rochon, who was with Mother and
Mrs. Ahern on March 5, 2012 near the Wegman’s store. Mrs. Ahern and Mother
said they saw Mr. Grant driving a car with Margaret in the back seat. Ms.
Rochon said she saw a car with a little girl in a pink jacket, but could not say who
was driving. Mr. and Mrs. Grant, who were both called by Mother, denied having
Margaret in their car on that date or on any occasion.
On cross examination, Mr. Grant related his contact with the Lower Allen
Police on the date in question. The Incident Report, Plaintiff’s Exhibit 20,
indicates that the officer was dispatched at 3:41 p.m., arrived at Mr. Grant’s
house at 3:45 p.m., found no evidence of a child or car seat in the car or house
and cleared the call at 4:12 p.m. after calling Mother. Perhaps, as Mother
indicated to the officer, “they got rid of her” before the officer arrived.
To be sure, Mother downplayed the conspiracy issue in her testimony.
Perhaps, after reading Ms. Salem’s report, Mother recognized that it sounded
unlikely at best and totally irrational at worst. The only witness to support the
17
Plaintiff’s Exhibit 18, Mother’s response to Ms. Salem’s questionnaire, titled “Issues That Are
Causing Tension & Creating Conflict,” at page 1, (hereafter, Mother’s Questionnaire).
-9-
10-5624 CIVIL TERM
claim was Mrs. Ahern, and she too was less adamant than we expected her to be
from Ms. Salem’s report. Significantly, Mother did not merely downplay the
conspiracy to her three experts, she never even mentioned it. Only Dr. Gransee
was exposed to the allegations (through Mrs. Ahern), and related the following:
However, [Mother] did not volunteer any information about a
possible conspiracy, and did not speak in a manner consistent with
an individual with a thought disorder. However, it was notable that
[Mrs. Ahern] spoke with this psychologist, first, for about 1 ½ hours,
and she did mention a possible conspiracy, and went to some
lengths to explain why she believed in this conspiracy theory, and
provided specific information that she felt supported her
18
convictions.
Of Mother’s experts, only Dr. Gransee has conducted custody evaluations,
and he has only done that for the past year. Given that Mrs. Ahern went to
“some lengths” to explain the conspiracy, Dr. Gransee’s failure to pursue it with
Mother is a glaring deficiency in his report, which is far from a thorough custody
evaluation.
Related to Mother’s insistence on the existence of a conspiracy, is her
belief stated throughout Ms. Salem’s evaluation that Father is not the father.
Although her attorney said in his opening that “we acknowledge Dad and in no
way want to limit his rights,” the thoughts and deeds of Mother throughout this
case tell another story. Father has had to go to considerable lengths, including
DNA testing, to merely have visitation with Margaret, and would not have had nor
sought the expanded time he now enjoys absent the evaluation by Ms. Salem.
Ultimately, the conspiracy issue becomes a credibility issue – who is being
forthcoming with the court? We cannot in good conscience sign on to the theory
18
Dr. Gransee Report, page 16.
-10-
10-5624 CIVIL TERM
Mother propounds. We find it hard to believe that Father and his wife would put
themselves through the level of personal and financial turmoil and scrutiny if
Father was not indeed the father, or that they would do so for the benefit of Mr.
Grant or his mother. We recognize, of course, that there is a heightened level of
animosity and a corresponding decrease in logic in all custody proceedings, but,
we are troubled by a theory that only Mother and Mrs. Ahern cling to. We
conclude that, as with their respective MMPI’s, they have underestimated their
problems and overstated their concerns in order to present an overly positive
view to the court.
A prime example of underestimation is Mrs. Ahern’s explanation of the
journal entries that she gave to Mrs. Wiles in 2009 regarding Mother’s erratic
19
behaviors (Plaintiff’s Exhibit 16). Mrs. Ahern’s entries were very specific,
disturbing, and in some cases alarming; however, she attributed them to “some
stupid assumptions” about Mother’s cutting and suicidal tendencies and said it
was “just me being extremely angry.” We cannot so easily brush her concerns
aside. Moreover, we find the entries to be similar in style to those in Mother’s
Questionnaire submitted to Ms. Salem. This may be coincidental, but it tends to
confirm the observations by Ms. Salem of Mother and Mrs. Ahern engaging in
similar rampages against Father and the co-conspirators.
Mr. Ahern did not relate any conspiracy theories though he did state that
Father “is not treating my daughter well.” We do not for one second doubt that
19
Mother contends that the presentation of the journal by Mrs. Wiles proves the conspiracy.
Given that her son had been accused of child abuse, it is not surprising that Mrs. Wiles would
retain a copy, and when she is accused of being a conspirator present it to demonstrate erratic
behavior by Mother.
-11-
10-5624 CIVIL TERM
Father possesses his own share of blame in this saga. That is part and parcel of
these cases. But treating someone poorly and conspiring to the level alleged
herein are two different things. If we are wrong and there is indeed a
conspiracy, it will come to light and we will correct any resulting wrongs.
Nevertheless, based on the credible facts before us, we must move beyond the
theories and get to the real work of providing a plan for Margaret’s immediate
future.
C. MARGARET’S HEALTH
Margaret is a basically healthy girl who has seen more doctors in her 2 ½
years than I have in 55 ½ years. Mother argues that Margaret is healthy
because of these visits and because of the care and concern Mother has
demonstrated for various conditions. Father argues that Margaret is healthy in
spite of Mother and that Mother will not accept the opinion of the doctors who do
not confirm her beliefs. We will briefly touch on two concerns – gluten sensitivity
and head lice.
Mother has taken Margaret to numerous doctors regarding sensitivity to
gluten and/or Celiac disease. Father argues that Margaret has been cleared of
these problems. The following reports appear to confirm the same:
1. Dr. Alexandra Horowitz’ report of February 8, 2011 indicates that
a skin prick test was negative to numerous substances, including wheat;
however that test did not rule out celiac disease. Dr. Horowitz noted that
she had a “long and detailed discussion with [Mother] regarding allergy
versus intolerance … and was able to reassure her that none of these
foods will cause Margaret any significant symptoms or result in
anaphylaxis. ” Additionally, Mother was directed to reintroduce wheat and
20
gluten in Margaret’s diet.
20
Plaintiff’s Exhibit 9, Dr. Alexandra Horowitz’ Report dated February 8, 2011.
-12-
10-5624 CIVIL TERM
2. Dr. Chandra Alexander saw Margaret on July 15, 2011, and
reported that Margaret “seems to be in no distress currently on the gluten-
free diet, empirically started by the mother, based upon her own diagnosis
with the help of practitioner Chris Turnpaugh. At this point in time it is
21
difficult for us to make a diagnosis while she is on a gluten-free diet. …”
3. In January 2012, Margaret was taken to the Department of
Pediatric Gastroenterology at the University of Maryland. The hand-
written discharge note indicates: “1. Exposure to gluten will not cause
harm. 2. If concerning symptoms appear, they must be objectively
22
documented by a medical professionally [sic].”
This is one of many “gaps” cited by Ms. Salem in how the parties see
things. We sense the frustration of the medical community in attempting to
address Mother’s concerns, and hope that the final admonition to have matters
confirmed objectively by a medical professional is followed.
With respect to Margaret having head lice, the 16 letters exchanged by
counsel regarding allegations of head lice over 9 weeks in the fall of 2011 only
confirm that there is a serious communications gap between the parties and that
counsel has not fared much better. In fact, head lice appears to be more of a
metaphor than a reality, and we now understand more fully the derivation of “nit-
picking.” If there was something smaller to fight over, the parties would do so,
but, absent objective confirmation, head lice will not tip the scales of justice.
Mother’s concerns about Margaret’s health may be well intentioned, but
the fact that the appointments increased after Father was awarded visitation in
December 2010, lends credence to Father’s claims that these concerns are
designed to keep Margaret from him. Fortunately, Margaret is outwardly healthy.
21
Plaintiff’s Exhibit 10, Dr. Chandra Alexander’s Report of August 12, 2011.
-13-
10-5624 CIVIL TERM
22
Plaintiff’s Exhibit 14, University of Maryland Hospital for Children discharge report of January
10, 2012.
-14-
10-5624 CIVIL TERM
If the parties learn to cooperate, as noted in the next section, she may also grow
up to be emotionally healthy.
D. BONDING AND CO-PARENTING
Everyone involved in this case loves Margaret and, in spite of efforts to
thwart it, she has a positive bond with them. Mother’s contention that Margaret
fears Brad and calls him a “bad man,” is contrary to Ms. Salem’s observations
and experience, and we find it to be inaccurate. We note the following excerpt
from Ms. Salem’s Summary:
With the level of trauma [Mother] alleged Margaret told her, there
would be trauma-related behaviors in Margaret such as overt fear;
refusal to get close to Brad; excessive crying in the presence of a
fearful person … These behaviors are overt, palpable and possible
to discern in a child Margaret’s age and are different from transition
difficulties … Margaret presented as a healthy 2 year old child
whose language, cognition, and emotional skills were within normal
developmental limits if not above normal limits. Under no
circumstance is it possible for a child Margaret’s age to have the
sophistication to hold back a terror response, trauma response, or
fear and anxiety by behaving in friendly, happy and affectionate
23
ways.
From Ms. Salem’s perspective, the good news about the existence of
positive bonds is offset by what she referred throughout her testimony as “the
extreme nature of presentation by the parties.” Specifically, when asked about
the ability of the parties to co-parent, Ms. Salem stated “it’s like living in Palestine
24
and Israel – I cannot figure a way to bridge the gap.” With little trust or respect
to build on, we will nonetheless try to bridge that gap in our order.
23
Salem Report, page 20.
Ms. Salem, Day Two – direct examination.
24
-15-
10-5624 CIVIL TERM
III. REVIEW OF CUSTODY FACTORS -
23 Pa.C.S. Section 5328(a)
Although we have alluded to the factors a court must consider, a specific
review of those we deem relevant may assist the parties.
Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party
(5328(a)(1))
This factor is crucial in every custody proceeding, and is especially so
when the parties might otherwise be deserving of a 50/50 shared custody order.
Despite Mother’s contention that she does not discourage contact by the Father,
she has attempted to minimize his contact since the complaint was filed. When
Mrs. Ahern was questioned as to whether Margaret is encouraged to see her
Father, her response was “this is what she needs to do,” which in this case
means Mother and her family will only encourage Margaret to see Father or
permit him to have additional periods of time if it is something they “need to do”
pursuant to a court order. It is patently clear that in the absence of a court order,
Father would not receive any parenting time with his daughter.
The present and past abuse committed by either 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
(Section 5328(a)(2))
supervision of the child.
We find no credible signs of any risks of abuse to Margaret. If we believed
the conspiracy theories with respect to Mr. Grant this would be an important
factor. With respect to the allegations of misconduct by both parents in matters
not involving Margaret, we find that they are either in the distant past or have
been determined to be “unfounded” by the relevant authorities.
-16-
10-5624 CIVIL TERM
The parental duties performed by each party on behalf of the
(Section 5328(a)(3)
child
Although both parties are capable of parenting Margaret in an appropriate
fashion there have been instances where the actual performance is somewhat
questionable. As with many other matters in this case, we find that that is
primarily a function of the inordinate stress levels that have surrounded the
proceedings. If left to their own devices, without the need to posture for a
conciliator, evaluator or the court, both parties will perform their duties
appropriately.
The need for stability and continuity in the child’s education,
(5328(a)(4))
family life and community life
Other than conflict, there has been little stability or continuity in Margaret’s
brief life. Fortunately, at 2½ years old she may forget what has transpired to
date. Unfortunately, the parties may never forget what was said during the three
days of testimony, let alone during the 19 months this matter has been litigated.
Hopefully, the parties will realize that they must learn to relate to one another for
the balance of Margaret’s life, not merely for the next 16 years. If the parties
develop co-parenting skills, Margaret will also develop a sense of stability and
continuity, no matter who has primary custody. If the parties fail to learn this
lesson, and maintain the same stress level for the next 19 months, Margaret may
never develop a healthy sense of security.
(Section 5328(a)(5))
The availability of extended family
Overall, this is not a significant factor in our determination. Nevertheless,
there is no question that mother and her daughters are dependent on her parents
-17-
10-5624 CIVIL TERM
for subsistence and assistance. In Father’s present unemployed state he is
similarly dependent on his wife.
(5328(a)(6))
The child’s sibling relationships
This factor is often accorded great weight and we do not doubt or discount
the positive relationship between Margaret and her older sister Rileigh. If all else
were equal, this would be a more crucial factor; however, given all the
circumstances of this case, this factor will not tip the scale towards Mother.
The well-reasoned preference of the child, based on the child’s
(Section 5328(a)(7))
maturity and judgment
Obviously, the court did not speak to Margaret, but we heard a great deal
from her through the parties. More importantly, if the parties are unable to
proceed in a less litigious manner, eventually, the court will have an opportunity
to speak to Margaret directly. We fervently pray that that day never arrives. In
the event that it does, we hope she has not been pumped to overflowing with
vitriol from the parties.
The attempts of the parent to turn the child against the other
parent except in the cases of domestic violence where
reasonable safety measures are necessary to protect the child
(5328(a)(8))
from harm
We find Ms. Salem to be credible regarding the extent to which Father is
denigrated by Mother and Mrs. Ahern in the presence of Margaret. This was
supported by the court’s observations and perceptions from the totality of the
case. In a matter that is highly charged with psychological terms, we hesitate to
assign any lay diagnoses, but Mother and Mrs. Ahern appear to be unduly
-18-
10-5624 CIVIL TERM
preoccupied with apprehension regarding Father’s contact with Margaret. Such
emotions cannot help but spill over onto Margaret.
Which party is more likely to maintain a loving, stable and
nurturing relationship with the child adequate for the child’s
(5328(a)(9))
emotional needs
Obviously, the court is ill at ease with the conspiracy theories embraced
by Mother and Mrs. Ahern. If the parties could put them on the shelf and
proceed with the great task of nurturing Margaret, we would happily do the same.
Unfortunately, the pervasive nature of these theories must be factored in by the
court, and eventually by a Parent Coordinator. The theories are potentially
debilitating to Mother and could challenge the resilience of any child. Even so,
we are satisfied that Mother has a loving and nurturing relationship with Margaret
that should continue even under these circumstances. And, although the case
and this opinion have largely focused on concerns with Mother, we wish to
affirmatively note that Father’s home will provide a loving, stable and nurturing
environment for Margaret.
Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of
(5328(a)(10))
the child.
Again, both parties may be able to do so alone, but must learn to
do so in concert with one another.
Each party’s availability to care for the child or ability to make
(5328(a)(12))
appropriate child-care arrangements
As previously noted, neither party is working and therefore both are
available to care for Margaret.
-19-
10-5624 CIVIL TERM
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 the child from abuse by another party
is not evidence of unwillingness or inability to cooperate with
(5328(a)(13))
that party
We have already said too much on this factor. We will attempt to
provide a map to lead for the parties out of their “Middle-Eastern”
warzone.
The history of drug or alcohol abuse of a party or member of a
(5328(a)(14))
party’s household
Given the number of accusations on other matters, the fleeting references
to Mother’s possible use of drugs years ago and to Father’s present
use/addiction to cigarettes, are largely irrelevant.
The mental and physical condition of a party or a member of a
party’s household (5328(a)(15))
There is no question that Mother incurred a serious injury when she was
struck in the head by a two-ton weighing tub in 2003. Nor, is there any question
that some residual effects exist. To her great credit, Mother has overcome the
deficits to a great extent, and the court is not concerned with the impact of the
injury on her ability to parent.
Of greater concern than the physical issues are the mental and emotional
scars that exist. Both parties and their families have substantial issues that
should be addressed through counseling to enable them to be the best parent,
grandparent, stepmother, etc.
-20-
10-5624 CIVIL TERM
III. CONCLUSION
For the foregoing reasons and after consideration of all the testimony,
reports, petitions and cross-petitions, we find that it is in the best interest of
Margaret that primary physical custody be granted to Father. This opinion, like
the hearings, focused primarily on Mother, which should in no way be interpreted
as indicating Father is without fault for the parenting conflict before us. Like
Mother, he must address the gaps in communication, but we are more concerned
at present with her ability to do so. Nevertheless, the accompanying “Order of
Court – Parenting Plan” will provide Mother with substantial parenting time. And,
after the parties work with and are guided by the Parent Coordinator, we foresee
a time that physical custody may be equally shared – not for the benefit of the
parties, but for the benefit of Margaret.
By the Court,
Albert H. Masland, J.
Linda Clotfelter, Esquire
For Father
Marcus McKnight, Esquire
For Mother
:saa
-21-