K.T. v. H.T.

J-A19045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.T., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

H.T.,

Appellee No. 454 WDA 2015

Appeal from the Order entered February 27, 2015, in the Court of Common Pleas of Lawrence County, Civil Division, at No. 11297/06 CA

K.T., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

H.T.,

Appellee No. 462 WDA 2015

Appeal from the Order entered February 27, 2015, in the Court of Common Pleas of Lawrence County, Civil Division, at No. 11297/06 CA

BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 19, 2015

In these consolidated appeals, K.T. (“Father”) appeals from the Order entered on February 27, 2015 (hereinafter “Custody Order”) which (1) denied the competing Petitions for modification of the existing child custody Order entered on October 3, 2013 (“the prior custody Order”), filed by Father and H.T. (“Mother”), regarding their minor child, C.T. (“Child” or “C.”)

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(born in February 2001); and (2) granted Mother special relief relating to enforcement of the prior custody Order. The Custody Order continued to award Mother sole legal, and primary physical, custody of Child, and granted Father partial physical custody. The Order also included an enforcement provision requiring law enforcement officials and child protective services agents/employees to return Child to Mother, rather than Father or anyone acting on behalf of Father, if Child removed himself from Mother’s physical custody (discussed in detail below). Father also appeals from a separate Order entered on February 27, 2015, which granted Mother’s Petition for contempt concerning Father’s violation of the prior custody Order (hereinafter “Contempt Order”). We affirm the Custody Order, and quash the appeal from the Contempt Order as interlocutory.

The factual and procedural background of this matter is exhaustively set forth in the trial court’s 91-page Pa.R.A.P. 1925(a) Opinion, which we adopt and incorporate herein by reference. See Trial Court Opinion, 2/27/15, at 1-62. In the interest of conciseness and readability, we will briefly set forth the relevant facts and procedural history herein.

The trial court summarized the background of this case, and the parties’ positions, as follows:

The issues in this case revolve around the fact that [Child] refuses to be in the custody of Mother and[,] in fact[,] has not been in the physical custody of Mother since December [] 2013, despite the terms of the [prior] custody [O]rder. Mother claims that this circumstance [exists] because of the contemptuous conduct of Father[,] who has engaged in a pattern of parental alienation, turning [Child] against Mother[. W]hereas[] Father -2-

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contends that this circumstance is brought about by the manner in which Mother treats [Child], causing him to be in fear of her[,] and [Mother’s] refusing to engage in any meaningful effort to keep [Child] in her custody.

Id. at 2.

The parties have engaged in contentious and continuous litigation since their separation in 2004, when Child was only three years-old. Before the entry of the prior custody Order, the parties shared physical and legal custody of Child, pursuant to a consent custody Order executed in March 2011. In the prior custody Order, entered on October 3, 2013, the trial court awarded sole legal and primary physical custody of Child to Mother, who is a dietician, and resides in Neshannock Township, Lawrence County, Pennsylvania. The prior custody Order also denied Father’s Petition to relocate Child from Lawrence County to Westmoreland County.1 Father is a physician, employed as a professor at the Lake Erie College of Osteopathic Medicine. Father moved to Westmoreland County in July 2013, and presently resides there.2 Father’s long-time paramour, M.E.S., has a residence in Neshannock Township, Lawrence County, located nearby

1 Father appealed the prior custody Order. This Court affirmed, after which the Supreme Court of Pennsylvania denied allowance of appeal. K.T. v. H.T., 104 A.3d 67 (Pa. Super. 2014) (unpublished memorandum), appeal denied, 95 A.3d 278 (Pa. 2014). 2 Before the entry of the prior custody Order, the parties had lived in close proximity to one another in Neshannock Township, Lawrence County, and within the same school district.

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Mother’s residence, which we will hereinafter refer to as the “Fireside residence” or “Fireside.”3

Despite the dictates of the prior custody Order providing Mother with primary physical custody, Child began to refuse to stay at Mother’s residence, approximately one month after the entry of that Order. Trial Court Opinion, 2/27/15, at 7. Specifically, the trial court explained that

[Child] and Father began a procedure whereby Father drops [Child] off at Mother’s house[. A]t the custody exchange time, [Child] will either knock on Mother’s door and tell her that he is not staying or simply walk through the backyards, and in either case, proceed directly to the [Fireside residence] of … [M.E.S.] Father will then email Mother[,] telling her that [Child] is at Fireside.

Id.

In its Opinion, the trial court detailed several incidents involving Child’s refusal to stay with Mother during her scheduled custodial periods. The first of those incidents occurred on November 7, 2013, when Child left Mother’s home, wearing only pajamas, at approximately 9:00 p.m., after which time Mother called 911 and went to the police station. Id. at 8. At the police station, Mother learned that M.E.S. had already picked up Child. Id. Child did not return to Mother’s home. Id.

On December 16, 2013, Mother held a birthday party at her home, after which Child spent the night at Mother’s home. Id. The following

3 Fireside is located approximately two-tenths of a mile from Mother’s residence. -4-

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morning, Mother transported Child to school. Id. Child told her that he would return to her home after school, but he did not do so. Id.

Mother next saw Child on January 1, 2014, when Father dropped him off at Mother’s residence at 8:00 p.m., whereupon Child immediately ran away. Id. Mother and the maternal grandmother followed Child in Mother’s car, and eventually caught up with him. Id. Child entered the back seat of the car, but, as the car pulled into Mother’s driveway, Child jumped out and began running away. Id. Mother and the maternal grandmother followed Child again. Id. Child ran to the Fireside residence, and went inside. Id. at 8-9. Child thereafter came back out and got into the car with Mother and the maternal grandmother, and they drove away, with the intention of heading to the home of a female friend of Mother. Id. at 9. The trial court explained what ensued as follows:

At an intersection, Mother could hear [Child’s] seatbelt unclick. Fearing that [Child] was going to jump out of the car again, Mother directed the maternal grandmother to proceed. Mother turned around to grab [Child’s] leg. [Child] opened the door and jumped out of the car. Mother’s finger got stuck in the seam of his pants and ripped the bottom of his pants as he took off running. Mother called 911 and tried to find [Child]. At the direction of the police, Mother returned to her residence and waited. The police eventually notified Mother that [Child] was with Father.

This incident resulted in the filing of a [P]etition for protection from abuse [“PFA Petition”] by Father[,] on behalf of [Child,] against Mother in the Westmoreland County Court of Common Pleas. After hearings before the Honorable Megan Bilik-DeFazio, Judge Bilik-DeFazio … dismissed the [PFA Petition]. Father filed a [P]etition for reconsideration[,] …

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[which] was denied.[FN 1]

Father appealed the PFA denial to the Superior Court, which affirmed the decision of the trial court.[FN 2] ___________________________________________________ [FN 1] In denying reconsideration, Judge Bilik-DeFazio referred to the case as one of the most tragic custody cases she had ever seen and one of the most tragic cases of parental alienation. The judge found [Child] to be very deliberate, that he knows what he is doing and that he is manipulating. [FN 2] In the court’s Pa.R.A.P. 1925(a) Opinion, the court found that Mother’s testimony was credible, that Mother had never threatened [Child], that Mother’s explanation of what occurred on January 1, 2014 was reasonable[,] and that the testimony of [Child] that Mother had threatened to kill him[,] and that he was “fearful” of Mother, was not credible. In finding that [Child] lacked credibility regarding his assertions that [] [M]other has threatened him and physically abused him, the court noted that [] [C]hild’s testimony was deliberate and calculated; that he did not show emotion under the circumstances[;] and that[,] by his conduct and demeanor, [Child] was operating under a clear agenda to manipulate the [prior] custody [O]rder. The court also commented on a cell phone video which shows that [Child] is giving [] [M]other a hard time, [and] that he is talking back to [] [M]other and being difficult and unreasonable, but that Mother exercised a great deal of patience in dealing with [Child] and his unacceptable behavior in that situation.

Id. (footnotes in original).

The trial court additionally stated as follows:

[Child] has not been with [] [M]other since the incident of January 1, 2014. In the spring of 2014, Mother attended [Child’s] band concert at Neshannock School and observed the concert, but [Child] would not spend any time with her at that event. Meanwhile, during this entire period of time, Father and [Child] continued the procedure whereby Father will drop [Child] off at Mother’s residence but [Child] will not stay[,] and will proceed to the Fireside residence, where Father will pick up [] [C]hild. [Child] will videotape these events. He himself testified that he videotapes his interaction with [] [M]other for use of the videos in court. -6-

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In connection with the proceedings before the Westmoreland County Court of Common Pleas on the PFA Petition that Father brought on behalf of [Child], Father arrived at the Westmoreland County Courthouse on January 3, 2014. In passing through security, Father was asked if he had any weapons. Father denied having any weapons. Security discovered in his briefcase a loaded Glock 9mm firearm and a folding knife with a three and three-fourth[-]inch blade in Father’s briefcase. Father was arrested and charged with Possession of a Firearm and Other Dangerous Weapon in a Court Facility pursuant to 18 Pa.C.S.A. § 913(a)(1). The disposition of the charge was that Father entered the Accelerated Rehabilitative Disposition Program for a period of six months. Father testified that he had forgotten that he had the items in his briefcase and that he generally carried a loaded firearm, [which] he had obtained from a friend who was in the scrap recycling business, for his own protection[,] as he was afraid that Mother would harm him[,] and that generally[,] he carried the loaded firearm to the efforts to [sic] effectuate custody exchanges.

Id. at 10-11.

In relation to the prior custody Order, the trial court stated in its Opinion as follows:

In awarding primary physical custody to Mother, the [c]ourt found that Father demonstrated a desire to frustrate Mother’s relationship with [Child]. The [c]ourt also found that [Child] does want to conform to many of Father’s expectations, and that [Child’s] desire to please Father is negatively affecting his relationship with Mother. The [c]ourt noted that neither Father nor [Child] could testify to any positive attributes Mother possesses as a parent, thus indicating that [Child’s] emotional connection to Mother is being hindered in some form[, and] that [it] is having a devastating effect on his emotional security and development. The [c]ourt also noted that, although the custody evaluator, Dr. [Douglas] Darnell, made no specific findings of parental alienation, [] Dr. Darnell’s evaluation was completed prior to the fall of 2012, when [Child] began expressing his animosity towards [] [M]other[. Additionally], … when Dr. Darnell was presented with hypothetical questions regarding behaviors displayed by [Child], he testified that those behaviors -7-

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were consistent with behaviors exhibited by a child suffering from parental alienation. The [c]ourt also indicated that [Child’s] negative perception of Mother was irrational. The court further concluded that Father’s actions have caused Mother’s relationship with [Child] to suffer[,] and that he has enabled [Child’s] unwarranted fears and trepidations of Mother. The court also concluded, in awarding primary physical custody and sole legal custody to Mother, that if Father was awarded such custody, [Child’s] relationship with Mother would dissipate to the point of disrepair.

Id. at 6-7 (footnote omitted).

While Father’s appeal from the prior custody Order was pending, the parties filed several Petitions and Motions, which are more fully described in the trial court’s Opinion; we adopt the trial court’s recitation herein. See id. at 11-15. Most relevant to the instant appeal, on September 5, 2014, Mother filed a Petition for contempt (“September Petition for contempt”), asserting that Father had violated the prior consent Order by enrolling Child in the public school district that serviced the area of Father’s residence in Westmoreland County, without Mother’s consent or approval by the trial court.

In November 2014, and January 2015, the trial court held a custody trial with regard to the parties’ competing Petitions for modification of the prior custody [O]rder, and Mother’s Petitions for special relief and contempt in relation to that Order. On February 27, 2015, the trial court entered the Custody Order, which dismissed the parties’ Petitions for modification of custody, and granted Mother special relief relating to enforcement of a particular provision of the Custody Order: paragraph 16. Paragraph 16

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provided that law enforcement and/or child protective services were to return Child to Mother, regardless of the circumstances, if he runs away from her home while in her custody.4

Also on February 27, 2015, the trial court entered the Contempt Order, which, in relevant part, granted Mother’s September Petition for contempt, based upon Father having unilaterally enrolled Child in a different school district. Mother alleged that Father’s action violated a provision in the prior custody Order providing that Mother was the sole legal custodian of Child, and therefore, entitled to make all decisions concerning his education. Notably to the instant appeal, the Contempt Order did not impose any sanctions on Father.

Father timely filed Notices of Appeal from the Custody Order and Contempt Order, along with two Concise Statements of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In March 2015,

4 Paragraph 16 specifically provides as follows:

16. During the time that … Mother … has the right of physical custody pursuant to this Order, [] [C]hild shall not be permitted to be at the residence designated as … Fireside … without Mother’s consent nor shall [Child] be permitted for any reason to be placed in the custody or control of … Father … or [M.E.S.] without Mother’s consent, and no law enforcement officer, employee or agent of Lawrence County Child and Youth Services, nor any other agency or authority, shall place[] [C]hild in the custody or control of Father, during Mother’s scheduled primary custody period, with the further direction that if for any reason [] [C]hild removes himself from Mother’s custody, he is to be returned to Mother and not Father or anyone acting on Father’s behalf.

Custody Order, 2/17/15, ¶ 16. -9-

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Father filed in this Court a Motion to stay the Custody Order. Although we entered an Order temporarily granting the stay, on April 1, 2015, we entered an Order lifting the temporary stay and denying Father’s Motion, directing Father to return Child to Mother two days later, at her residence. Approximately one week later, Father filed a second Motion to stay the Custody Order, which this Court denied.5

In his brief on appeal, Father presents the following issues for our review:

I. Whether the trial court committed an abuse of discretion in awarding sole legal and primary physical custody to Mother[,] when the facts of record demonstrated that there was a complete breakdown of the relationship between Mother and [C]hild[,] and[,] for the past 14 months, that Mother had no contact with [] [C]hild during this time, and despite having sole legal custody[,] repeatedly failed to act in [] [C]hild’s best interest in meeting [C]hild’s medical, dental, mental health and educational needs?

II. Whether the trial court committed an abuse of discretion in awarding primary physical custody to Mother[,] when the court engaged in no analysis [concerning] the effect of such an [award] on [] [C]hild as the circumstances existed at the time of trial, [which] uprooted [] [C]hild from school friends and his current life[,] and whether such an [award] was in [] [C]hild’s best interest under the factors enumerated in 23 Pa.C.S. [§] 5328[,] and when Mother presented no current evidence to the [trial c]ourt as to her current ability to parent [] [C]hild as required under M.E.V. v. F.P.W., 100 A.3d 670 (Pa. Super. 2014)?

5 At oral argument, on July 8, 2015, Father’s counsel informed this panel that Child was placed in a foster care home, after having refused to return to Mother’s custody. Father additionally brought this matter to our attention via a post-submission Application for Supplement to the Record, which we denied. - 10 -

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III. Whether the trial court committed an abuse of discretion in awarding primary physical and sole legal custody to Mother by failing to properly consider and/or completely disregard the uncontroverted testimony and opinion[s] of the [c]ourt- appointed experts[,] and failing to mandate reunification counseling[,] as recommended by the [trial c]ourt’s experts?

IV. Whether the trial court committed an abuse of discretion when it found that Father had alienated [] [C]hild from Mother[,] when there was no evidence presented of parental alienation[,] [] neither expert testified that they believed there was parental alienation[,] and the finding was based on pure speculation?

V. Whether the trial court committed an abuse of discretion when it ordered that law enforcement and/or child protective services were to return [] [C]hild to Mother[,] regardless of the circumstances?

VI. Whether the trial court committed an abuse of discretion when it found Father in contempt of the [prior custody] Order [] by enrolling [] [C]hild in school[,] as Father’s actions were not an “intentional, designed act and one without justifiable excuse.” Com. ex rel. Wright v. Hendrick, 312 A.2d 402[, 404] ([Pa.] 1973); the [prior custody] Order was not definite, clear and specific; there was no volitional violation or wrongful intent; Mother failed to provide for schooling pursuant to 24 P.S. [§] 13- 1327[,] the Compulsory School Attendance Law; when Father was required to always consider [] [C]hild’s best interest, make sure that [] [C]hild continued to attend school, continue other activities beneficial to [] [C]hild’s overall growth and development[,] and exercise daily parental responsibility when [] [C]hild was in his physical custody[; and] when Mother had abdicated her parental responsibilities?

Father’s Brief at 11.6

In custody cases, our standard and scope of review are follows:

In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent

6 In his Concise Statements, Father set forth his issues somewhat differently. Nevertheless, we determine that he preserved the issues for our review. - 11 -

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evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted); see also Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (stating that “[a]n abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused.”) (citation omitted). Additionally, this Court has observed that

[t]he discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).

As the custody trial in this matter was held in November 2014, and January 2015, the Child Custody Act (the “Act”), 23 Pa.C.S.A. §§ 5321 to

5340, is applicable. C.R.F., 45 A.3d at 445 (holding that, if the custody - 12 -

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evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply). With any custody case decided under the Act, the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial court may modify a custody order if it serves the best interests of the child. Id. § 5338. Section 5328(a) of the Act sets forth the various factors that a trial court must consider when ordering any form of custody (collectively referred to as “the best interest factors”). Id. § 5328(a).

We will address Father’s first and second issues together, since both involve challenges to the trial court’s refusal to disturb the award of sole legal custody and primary physical custody to Mother under the prior custody Order. See Father’s Brief at 21-34. Pointing to Child’s repeated refusal to stay at Mother’s residence during her custodial periods, Father asserts that Mother and Child are estranged. Id. at 22-23. According to Father, “Mother abandoned [Child] and any parental responsibilities for his care, safety, or emotional well-being when he refused to stay with her.” Id. Father cites McDonel v. Sohn, 762 A.2d 1101 (Pa. Super. 2000), Snarski v. Krincek, 538 A.2d 1348 (Pa. Super. 1988), and Jones v. Stone, 495 A.2d 205 (Pa. Super. 1985), for the proposition that a parent’s lack of involvement and abandonment of parental duties supports a modification of custody and award of custody to another person, even to a non-parent.

Father’s Brief at 27-28. - 13 -

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Father emphasizes that “the sole criterion in determining custody disputes is the best interest and paramount welfare of the child.” Id. at 28-29 (quoting M.E.V., 100 A.3d at 679) (emphasis in M.E.V., citation omitted). Father points out the Court’s statement in M.E.V. that “a trial court may not merely advert to prior, manifestly outdated findings of fact in lieu of express and fully explained reconsideration of those factors in the light of any changes in the parties’ circumstances that occurred after the prior ruling and attendant explanation.” Father’s Brief at 27 (quoting M.E.V., 100 A.3d at 681). Father additionally contends that the trial court cannot “simply pay lip service” to the best interest factors in section 5328(a). Father’s Brief at 34 (citing C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013)). According to Father, the trial court’s Opinion “did not address which factor(s) weighed in favor of which party, … or how the factors affected its decision. Instead, the [t]rial [c]ourt came to the conclusion that Mother’s relationship with [Child] was paramount to his best interests[,] without reference to findings to support that conclusion.” Father’s Brief at 34.

Father argues that Child’s best interests are served by awarding primary physical custody to him, as he is the only parent who has provided for Child’s physical, intellectual, moral, and spiritual well-being during the approximately fourteen-month period prior to the entry of the Custody Order. Id. at 36. Pointing to this period of separation, Father contends that “Mother offered not one scintilla of evidence … [as to] how she would keep

Child in her care should Father[]” not be granted relief. Id. Father further - 14 -

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asserts that the trial court abused its discretion by failing to consider the effect on Child of his immediate return to Mother and his removal from the Hempfield School District (i.e., where Father had enrolled Child without Mother’s consent), absent the provision of immediate therapeutic intervention. Id.

In its Opinion, the trial court discussed the law concerning section 5328(a), set forth the best interest factors, and provided a thorough analysis

of each of the factors. See Trial Court Opinion, 2/27/15, at 62-80.7, 8 The

trial court’s analysis is sound and supported by the record, and we therefore adopt and incorporate it herein for purposes of Father’s first and second issues. See id.

After addressing the law and the best interest factors, the trial court then stated in its Opinion as follows:

Although extensive proceedings have been held on the [parties’] competing requests for modification, and for special relief and findings of contempt, essentially nothing has changed subsequent to the proceedings that resulted in the … [prior c]ustody Order[,] except that [Child] adamantly refuses to be with [] [M]other. [Child’s] recalcitrance to being with [] [M]other was recognized by the trial judge in the prior proceedings. In the October [3], 2013 Opinion, the [trial] court noted that Father encourages [Child’s] unreasonable

7 Effective January 1, 2014, section 5328 was amended to include an additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child abuse and involvement with child protective services). Although applicable at the time of the custody trial in the present matter, there was no evidence that would have required the trial court’s consideration of this factor. 8 We note that the trial court’s discussion of factor 5328(a)(8) is not preceded by a heading, but appears to begin on page 71. - 15 -

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apprehension regarding Mother (Page 25); that Father has demonstrated a desire to frustrate Mother’s relationship with [Child] (Page 29); that if Father is awarded primary physical and sole legal custody, [Child’s] relationship with Mother will dissipate to the point of disrepair (Page 33); that the foregoing analysis finds fault in Father for enabling [Child’s] unwarranted fears and trepidations of Mother; the [c]ourt believes that Father’s actions have caused Mother’s relationship with [Child] to suffer, but the [c]ourt does not believe that Father’s actions should be characterized as alienating (Page 33).

Although the trial court in the prior proceedings stops short of characterizing Father’s actions as alienating, the court did attribute [Child’s] unfounded perceptions of [] Mother to be caused by Father’s actions[,] and [found] that [Child’s] thoughts about Mother paralleled those of Father.[FN 3] The court’s prediction proved to be true, that if [Child] were left in the custody of Father, the relationship with [Child] and Mother would only deteriorate. However, the circumstance that allowed Father to have the custody was not brought about by court order, but by the fact that [Child] simply refused to be with Mother[.] ___________________________________________________ [FN 3] More recently, Mother filed an injunction proceeding against [M.E.S.,] seeking to enjoin her from interfering in the custody matters. [H.T. v. M.E.S.], No. 1091 of 2014, C.A. The same trial judge [who] issued the … Custody Order in this case denied injunctive relief, but in a Pa.R.[A.]P. 1925(a) Opinion[,] found that the “root of [] [C]hild’s behavior seems to have been derived from [Father].” (Pa.R.A.P. 1925(a) Opinion dated February 4, 2015, page 10[)].

Trial Court Opinion, 2/27/15, at 81-82 (footnote in original).

Our review of the record demonstrates that the trial court thoroughly considered each of the best interest factors, and its Custody Order sought to render a custody award in Child’s best interests. Contrary to Father’s assertion, the record reflects that the trial court did not merely rely on outdated findings. Rather, the court expressly and fully explained its

consideration of the best interest factors, in light of the parties’ actions, as - 16 -

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concerns Child’s best interests, following entry of the prior custody Order. The trial court determined that Mother had not abandoned Child, but, instead, Child, with Father’s assistance, had acted to obviate the prior custody Order and deprive Mother of her court-awarded custody. Further, the trial court found that, under the circumstances, Child’s best interests are served by maintaining the prior custody Order, awarding sole legal custody and primary physical custody to Mother, and dismissing the competing modification Petitions. We discern no abuse of discretion or error of law in the trial court’s analysis, and its findings are supported by the record. Accordingly, we affirm based on the trial court’s Opinion regarding Father’s first two issues, see Trial Court Opinion, 2/27/15, at 62-82, and conclude that these issues lack merit.

Next, we address Father’s third and fourth issues together. In his third issue, Father contends that the trial court abused its discretion by (1) awarding sole legal custody and primary physical custody to Mother in disregarding, or failing to adequately consider, the uncontroverted testimony and opinions of the court-appointed experts; and (2) failing to mandate reunification counseling, as recommended by these experts. See Father’s Brief at 39-42. Father alleges that Dr. Martin Myers (“Dr. Myers”), the court-appointed psychologist who evaluated Child, testified that Child is flourishing in Father’s custody, and recommended that Mother and Child engage in counseling, and that Mother and Father each participate in

counseling. Id. at 37. Father states that Dr. Bruce Chambers (“Dr. - 17 -

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Chambers”), the court-appointed custody evaluator who performed an updated custody evaluation, testified that it would be problematic to return Child to Mother’s custody without therapeutic intervention. Id. at 40. Father argues that the trial court’s Order directing the immediate return of Child to Mother is against the weight of the evidence and against the uncontroverted testimony of these two experts. Id. at 41. According to Father, the trial court improperly rejected Dr. Chambers’s testimony. Id. at 41-42. In support of this argument, Father relies on Murphey v. Hatala, 504 A.2d 917 (Pa. Super. 1986), for the proposition that it is an abuse of discretion for the trial court to accept as unpersuasive, and to totally discount, uncontradicted expert testimony. Father’s Brief at 41.

In his fourth issue, Father argues that the trial court abused its discretion when it found that he had alienated Child from Mother, where there was no evidence of parental alienation and neither Dr. Myers nor Dr. Chambers had opined that there was parental alienation. Id. at 46-48. According to Father, the trial court’s finding of parental alienation was based on pure speculation, and Mother’s mere allegations. Id. at 46-47. Additionally, Father asserts that “[n]early all of the evidence of record supports that it was Mother’s actions, not Father’s, that were estranging her from [Child]. Particularly relevant was Mother’s complete rejection of [Child] for a period of over 14 months, a fact the trial court summarily ignores in its Opinion.” Id. at 47.

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In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), this Court held that a trial court may not simply dismiss uncontradicted expert testimony unless the court’s independent determination is supported by the certified record. Id. at 19-20. Although a trial court is not bound by the custody evaluator’s conclusions, it must actually consider the expert’s analysis. Id. at 20. The M.A.T. Court held that “[s]o long as the trial court’s conclusions are founded in the record, the lower court was not obligated to accept the conclusions of the experts.” Id. (citation omitted); see also King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (stating that, if the certified record supports a trial court’s conclusions in a custody matter, the trial court is not required to accept an expert’s conclusions and recommendations).

In its Opinion, the trial court provided a detailed explanation for its rejection of the expert testimony of Drs. Chambers and Myers, as concerns section 5328(a)(8) of the Act (i.e., the best interest factor pertaining to parental alienation), and set forth ample evidence in the certified record supporting the court’s determination that Father had engaged in alienation. See Trial Court Opinion, 2/27/15, at 71-77, 83-86. Since the trial court’s recitation of the evidence, and the court’s determinations, are sound and supported by the record, we incorporate them herein with regard to Father’s third and fourth issues. See id.; see also M.A.T., 989 A.2d at 19-20. We affirm on this basis in rejecting Father’s third and fourth issues, as we

conclude that the trial court properly exercised its discretion in finding that - 19 -

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Father engaged in parental alienation, and in not following the custody experts’ recommendations. See Trial Court Opinion, 2/27/15, at 71-77, 83-86; see also King, 889 A.2d at 632.

In Father’s fifth issue, he argues that trial court abused its discretion when it directed, in paragraph 16 of the Custody Order, that law enforcement and/or child protective services must return Child to Mother if he runs away from her home while in her custody. See Father’s Brief at 42-46. Father posits that, if Child refuses to stay with Mother, the effect of the provision is essentially an adjudication of Child as dependent, since it prohibits Child from being placed in Father’s custody. Id. at 42-43. Father argues that the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. (governing the adjudication and disposition of delinquent and dependent children), does not provide for a restriction on the placement of a dependent child prior to an adjudication of dependency. Father’s Brief at 44. According to Father, paragraph 16 (1) excuses Lawrence County Children and Youth Services (“CYS”) from meeting its burden to establish Child’s dependency under the Juvenile Act, id. at 42-43; (2) violates Father’s due process rights, id. at 43; and (3) violates the statutory mandate set forth in section 6301 of the Juvenile Act, 42 Pa.C.S.A. § 6301(b)(1), requiring the preservation of family unity whenever possible. Father’s Brief at 45. Finally, Father maintains that the trial court has scheduled a dependency hearing concerning Child, who is still in placement. Id.

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Our review of the record reveals that trial court created paragraph 16 of the Custody Order in response to Mother’s request for special relief for enforcement of the prior custody Order. See Trial Court Opinion, 2/27/15, at 81. The prior custody Order had granted Mother primary physical custody, but Child was obviating that Order by running away from Mother’s residence. In light of Child’s repeated refusal to see Mother,9 the trial court determined that this enforcement provision was necessary to ensure that the award of primary physical custody to Mother was enforced. See id. at 82 (stating that “the circumstance that allowed Father to have the custody was not brought about by court order, but by the fact that [Child] simply refused to be with Mother[. T]hat circumstance has been allowed to exist without being specifically addressed by the court relative to the aspect of enforcement of the [prior custody] Order.”). We determine that the trial court’s analysis supports its decision to grant Mother’s request for special relief for enforcement of the prior custody Order.

Moreover, as support for his argument that paragraph 16 is inappropriate for a custody order, Father relies generally on the Juvenile Act and case law under its statutory provisions. However, paragraph 16 does not refer to the Juvenile Act, nor does this Court have an appeal before it under the Juvenile Act. Father asks this Court rule on a matter raised in his

9 In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth its analysis and legal support involving the refusal of a child to visit his parent, which we incorporate herein by reference. See Trial Court Opinion, 2/27/15, at 82- 83. - 21 -

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second Motion for stay, which we denied until the matters raised therein are addressed by the trial court. In effect, Father would like this Court to prematurely rule on dependency proceedings that are before the trial court; we may not do so. See Pa.R.A.P. 302(a). Accordingly, we discern no abuse of discretion by the trial court’s entering paragraph 16 in the Custody Order. Father is therefore not entitled to relief on his fifth issue.10

Finally, Father argues that the trial court abused its discretion when it found him in contempt of paragraph 2 of the prior custody Order, which granted Mother sole legal custody of Child, and the authority to, inter alia, make major decisions concerning Child’s education. See Father’s Brief at 48-53. Concerning Father’s unilateral enrollment of Child in the Hempfield School District, prior to the commencement of the 2014-2015 school year, Father asserts that “[b]y the Fall of 2014, Mother had not taken care of [Child], nor acted as [Child’s] custodial parent,” and “Mother made no efforts for appropriate schooling or enrollment for [Child], since he was not staying in her house.” Id. at 48, 49.

It is well-established that “each court is the exclusive judge of contempts against its process.” G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013) (citation omitted). Additionally, “[t]his Court must place great

10 We additionally observe that there is no information in the certified record regarding Child’s allegedly pending juvenile adjudication and disposition, and/or his placement. See Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en banc) (stating that an appellate court is limited to considering only the materials in the certified record when resolving an issue). - 22 -

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reliance on the sound discretion of the trial judge when reviewing an order of contempt[,]” and we will not disturb a trial court’s findings on a contempt petition absent a clear abuse of discretion. Id.

To sustain a finding of civil contempt, the complainant must prove certain distinct elements by a preponderance of the evidence: (1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) that the act constituting the contemnor’s violation was volitional; and (3) that the contemnor acted with wrongful intent.

P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012) (citation omitted).

Here, the trial court found that Father’s enrollment of Child in the Hempfield School District, violated paragraph 2 of the prior custody Order. Trial Court Opinion, 2/27/15, at 89-90. The trial court also found that Father had acted without the approval of the court or the consent of Mother, who had sole legal custody. Id. Additionally, the court determined that Father had acted intentionally and willfully, pointing out the Hempfield School District enrollment form completed by Father, wherein he stated that he had custody of Child. Id. at 90. The trial court, therefore, granted Mother’s September Petition for contempt. Id. at 90-91. However, the court deferred the imposition of sanctions, pending the opportunity for Father to purge himself of the contempt. The Contempt Order, at paragraph 5, provides the following purge condition:

5. [Father] shall purge himself of contempt by strictly complying with all provisions of the [C]ustody [O]rder entered contemporaneously with this Order and any subsequent orders in this case. [Father] shall be deemed to have purged himself of - 23 -

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contempt if he remains in compliance for a period of (6) months from the date of this Order.

Trial Court Contempt Order, 2/27/15, ¶ 5.

We conclude that Father’s appeal from the Contempt Order is interlocutory, as the Order imposes no sanctions on him. See Genovese v. Genovese, 550 A.2d 1021, 1022 (Pa. Super. 1988) (stating that, unless sanctions are imposed, an order declaring a party in contempt is interlocutory, and that a threat to impose sanctions in the future is neither final nor appealable). We, therefore, quash Father’s appeal from the Contempt Order at Docket No. 462 WDA 2015 as interlocutory.11, 12

Appeal at Docket No. 454 WDA 2015 affirmed; appeal at Docket No. 462 WDA 2015 quashed as interlocutory.

11 On April 2, 2015, this Court issued a Rule on Father, directing him to show cause as to why this appeal should not be quashed as interlocutory. Father’s counsel responded by claiming that the trial court used the contempt finding in its custody ruling in relation to the Custody Order. On April 17, 2015, we discharged the Rule, pending a review by this panel. Upon our review, we determine that the trial court, in making its Custody Order, did not rely upon the contempt finding. Rather, the trial court considered Father’s unilateral actions in enrolling Child in the Hempfield School District, without the prior consent of Mother or the approval of the trial court. While these same actions were the basis for the trial court’s contempt finding, the contempt finding was not the basis for the court’s decision to maintain the prior custody Order in place. See Trial Court Opinion, 2/27/15, at 87-90. 12 In her brief, Mother requests the imposition of costs on Father. See Mother’s Brief at 19. However, she has not filed a motion for costs or developed the request; accordingly, this claim is waived. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that “where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.”); see also Pa.R.A.P. 2119(a). - 24 -

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/19/2015

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K.,..,, Plaintiff IN THE COURT OF COMMON PLEAS LAWRENCE.COUNTY, PENNSYLVANIA vs. · :. NO. 11297 OF 2006, C.A.

. APPEARANCES For Plaintiff: Richard B. Sandow, Esq. c. Kurt Mulzet, Esq. Stephanie T.' Anderson, Esq. Jones, ·Gregg, Creehan & Gerace, LLP 411 seventh Avenue suite 1200 · . Pittsburgh, PA 15219 · For Defendant: Ri~hard Ducote, Esq. Erica Burns, Esq. Ri~hard oucotei PC 4800 Liberty Avenue 3rd Floor Pittsburgh, PA 1522'4

OPINION

MOfio, P.J. FEBRUARY 27, 2015

T-, In this custody dispute presently'before the court, (hereinafter "Mother") seeks enforcement·of the order of court dared October 1, 2013 issued by the· aonorab 1 e Thomas M. Hllllf

· Piccione which granted her. so 1 e 1 ega 1 and primary phys i. ca 1 custody of the minor child, clllllll TIIIII, born February 10, ioq1, and, further, seeks modi f'i catrion .9f that· custody order by · ~~~·~·d·i-~g· ·h~·~. . :s~l·e . . p.h·y·si ·cal·. ·.·c~·s·tody. . .arid .... p. r'ovi d ;·h~r··Father· . wi th-- .

S3FID closely supervised visitation, as. opposed to partial custody. JUDICIAL DISTRICT

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October 1, 2013 custody order by awarding him the sole legal and physical custody of cllllll, with ctllllllllll's further contact with Mother to be as may be advised th rough reuni fi cation counse 1 ing . . The issues in this case_revolve around the fact that '11111111 refuses to be in the custody of Mother and in fact has not been in the physical custody of Mother since December of 2013, despite the terms of. the October 1, 2013 custody order , Mother claims that this circµmstance is because of the contemptuous

ali.enation, turning c- conduct.of Father who has engaged in a pattern of parental against Mother; whereas, Father

in which Mother treats ·c-, contends that this circumstance i's brought about by the manner causi.ng him to be in fear of her and refusing to engage in any meaningful effort to keep <111111 in her custody. The record of this case will reflect that the parties have engaged in continuous litigation since their separation in 2004. I

The custody liti§ation originally began in the court·of common Pleas of Allegheny county, Pennsylvania, with jurisdiction being transferred to this court in August of 2006. The court will not here recant the entire procedural history of the case since 2006; however, the opinion of Judge.Thomas M. Piccione in support of his October 1, 2013~ order provides a detailed procedural history up to the point of the order of October 1, · io13. The court will, however, review the history of this case ...... R M,_ ,.

from March 15, 2011';.... tfi'e... date .. orr . whi-ch-a-:consent-€-ust-0dy-. o.rdat..; . _ . . . - . . . 53RD was entered, in order to provide some perspective on this cas.e. JUDICIAL DIS'rRICT

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The March 15, 2011, order provided the parties with shared .. legal and shared physical custody with Mother and Father to exercise custody on an alternating weekly basis, with exchanges. to take.place on Sundays at 5:00 p.m. At this time, the parties had lived in close proximity to one another in Neshannock Township, Lawrence county, and within the same· school district. The parties, however, were unable to communicate with one another~ and litigation followed which resulted in the court appointing a guardian ad litem for conner . and requiring . the . court to hear emergency· relief petitions addressing such things as ctllll's extracurricular activities, which dentist he would reat withr and issues surrounding Father's efforts in obtaining a passport. on·september 17, 2012, the guardian ad litem for clllf presented a motion.for leave of court to withdraw. The basis for this request was that Father had taken cllll to the office of the guardian ad litem; ctllll informed the guardian ad litem that he . no longer wanted . . to work with the guardian ad litem; and, thereafter, c"'9 walked out of the office of the guardian ad l item with his Father. The guardian ad 1 i tern was given leave· to.withdraw. A 1 so on September 17, 2012, Mother fi 1 ed a peti t icn for protection from a~use against Father alleging that on September · 16, · 2012, a verbal altercation occurred between Mother and '·Father, "fofti"ed-Tn - by Father's 91 rTfri encr;-M··-s-;-arrd•"'"' ~ .

53FtD that Father and Ms. sllllhad threatened her during the JUDICIAL DISTRICT altercation.

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on October 15, 2012, Father presented a motion for emergency custody order, wherein Father alleged that Mother and Maternai Granafather were attempting to intimidate.cllll in regards to the custody dispute and.that Mother had physically attacked cllllll on September 30, 2012. on November 28, 2012, Father filed a petition for contempt alleging.that Mother was in violation of existing orders of court for permitting third parties.to attend custody exchanges and dis~ussing the·proceedings with ctlllllll'· Father also filed a petition for protection from abuse against Mother on c4lllll's beha1 f on November 29, 2012 ·, a11 eg·i ng that on Sunday, November 25, 2012., Mother physically grabbed confiscate Father. the child' s ce11 phone when c- CIIIIIJ in an attempt to

The petition further· alleged that Mother's.father attempted to ca 11

(hereinafter "Maternal Grandfather") residence and forced himself into c-'? arrived at Mother's room, pinning on the ground, and striking ct111111's head against the floor. c- The next day, November 30, 2012, Father filed another protection from abuse petition alleging that.Mother threatened Cllllf on November 29, 2012 by refusing to provide c& with food or drink until Ctlllllf wrote a letter to ·Maternal Grandfather and .that Mother became physically violent with Ctlllllf and prevented him from leaving her residence. Al1 of the f~regoing petitions for protection from abuse, motricns for emerge~cY. custody order , . . . ana·ccfrit.empt--pe-ci·ttons ·were ......

53RD dismissed by the court after hearing, and on February 6, 2013, JUDICIAL DISTRICT the court· entered an order reinstating the March 15, 2011

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custody consent order which provided for shared physical and legal cµstody. Additionally, the court directed the parties to begin counseling for c3 's benefit. By May 30, 2013 both pa.rti es had filed competing claims for

primary custody; however, on June 18, 2013, Father filed a notice of re'locatrion proposal, ·which was objected to by Mother. The rel9cation reque~t came about ·pecause Father had relocated. to Greensburg, Westmoreland county, Pennsylvania for reasons related to his employment. on August 20, 2013, a six-day.custody and· relocation hearing commenced, which resulned in the October 1,. 2013 order. The proceedings before Judge Piccione addressed the issue of cs 11 being anxious about seeing Mother for any per+od of time, with eve~ts or c eith~r running from his mother or not showing for custody exchanges. Mother acknowledged that prior to the fall of 2012, her relationship with c was normal; but that in November of 2012·C&L (,s attitude towards his mother began to change. In November of·2012, Father began calling c while c was at Mother's house and having extensive phone conver-sat lons that would las~ for hours. contrary to the description of events that occurred on November 2 5 ~ 2012 indicated by c-, Mother . recoun.ted that c:•• arrived ·at her house and·would not ·speak to her; that c was on the phone with Father for an extended period of time and .· .. ··. ... . . . wou 1 d ·-· no't get . ··-~ff . of the phone .'-At about ·9: 00 c 5 gotC'fff-of·---- . _ . the phone with Father and came out of his room screaming "you ' re S3PCD JUDICIAL. DISTRICT going to kill me". Mother was unable to· calm cc 7 down so she

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called her par~nts for help. When Maternal Grandfather arrived at the residence, Clllllfbarricaded himself in his bedroom against his door » · Maternal Grandfather 'had to force his way ·into c 's bedroom causing c to be pushed across the floor. c then threw himself on th,e ground, thrashing his arms and legs and slamming his head on the ground .. Mother and. Maternal Grandfather physically restrained ca f by·holding down his arms and iegs until he regained control of himself_. After this incident, a'period of.time e~sued wh~re Mother did not see c:111111~because of the pending_ protection from abuse •, I

p~titions and the litigation that flowed therefrom. In. February of 2013, c-• again began staying at Mother's residence and the parties continued to alternate custody on a week-on and· week-off basis, which continued.until the custody order was . . 3 entered by Judge· Piccione on. October ;.J:'~ 2013. ··1n awarding . . prima~y physical custody to Mother, the court found that Father demonstrated a desire to frustrate Mother's relationship with cs ?. The court also found that c S does want to conform ' I

to manyof Father's expectations, and that c•••t' s desire to p'lease .Father is negatively affecting hf s relationship with Mother. The CQurt further.noted that neither Father nor c a .cou'ld testify to any positive attributes Mother possesses as a parent,:thus indicating that c1111111t's emotional connection to ·-Mother is bei,ng hindered in soine form that is having· a .. ':devastating. effect ·on"'lns"' emo"ti onal-se"cu r,-tyand deve-lopm-en-i-:··· ..... ·-· - .

53RO The cou~t also noted that, although the custody evaluator, Dr. JUDICIAL OISiRICT Darnell, made no specific findings of parental alienation, that

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Dr. Darnell's evaluation was completed prior to the fall of 2012, when c:•• began expressing his animosity towardshis mother, and that when or. Darnell was presented with hypothetical questions regarding behaviors displayed by c....,, he testified that those behaviors were consistent with behaviors: exhibited by a .child suffering from parental alienation. The court a1 so indicated that cg §' s negative percept'i on of Mother was irrational. The court further concluded that Father's actions have caused Mother's relationship with c•• to suffer and that he has enabled c••' s. unwarranted fears and ·trepidations of Mother. The court also concluded, in awarding primary physical custody and sole legal custody to Mother, that if Fat~er was awarded such custody, C & • 's rel ati onshi p wi.th · Mother ~ould dissipate to the point of disrep~ir.1 Approximately one month after the October 1, 2013 custody order, c•• began refusing to spend any time with his mother. c and Father began a procedure whereby rather drops ct S off at Mother's house; at the custody exchange time, Gr FT will either knock on Mother's door and tell her that he is not staying or simply walk through the backyards, and in either case, proceed directly to the residence of Fither's girlfriend, located near Mother's ·residence and identified as the Fi reside 11

Residence". Father will then email Mother telling her that c is at Fireside. ·-·--· ... ·····--·-······--- __ . -·····-..·-------·--- - _ _ . --.,.- _. __ ,.

53RD JUDICIAL. 1 JUdQe Piccione's order of October 3, 2013 was appealed by Father to the DISTRICT super, or court of Penns,yl vani a, which affirmed the October 3, 2013 order in its opinion filed May 30, 2014. IIRENCE COUNTY 'l!NNSYLVANll,

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on November 7, 2013, c J$ was at his mother's residence. At about 9: 20 p. m. Ctllll got out of bed, went into the bath room and then immediately canie back out and went down the steps and out the front door. The weather was cold, with ice and snow, and cllllllll'wa~ wearing nothing but pajamas. Mother called 911. Mother then went to the police station. While she.was at the police station; the police informed her that they had received a call from Father stat~ng that Father's girlfriend had picked taken him to cranberry and that they were on the way back from cranberry.: c did not immediately return to Mother's home. came to Mother's house on December 16, 2013 after school and spent the night .. The next day, Mother took c to school. A birthday party ·had been held at Mo~her's house on the night of December 16, 2013, and company was oyer. The next morning~ Mother took c to school and asked him if he was coming to her house after school. c said "Yes." Mother said that she would see him after school and that she loved h.im, and c said "Love you, Mom" and got out of the car. aowever, c did not go to his mother's home on December 17, 2013, and the next time that Mother.saw c ~as on January 1, 2014. on that date, Father dropped c off at about 8:00 p.m. and er O took off running. Mother and the· maternal grandmother got into their car to follow him. Cf S got into .. ··~~-·-·· ·······- the back·:··of the car, hut-as- tney pulled. JnrcHnto-the·tr----···· -······ ....

53RD driveway, ca: a jumped out and took off running again. Mother JUDICIAL DISTRICT and her mother followed him again. Cl A went back to the

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Firesiae residence and went inside. Clllllt came back out and got back into the vehicle and they drove away. Mother and. the maternal grandmother decided that they would go to,the home of Mother's girlfriend. At an intersection, Mother could hear c 's seatbelt unc1ick. Fearing that cu CT was going to jump out of the car.again, Mother directed the maternal grandmother to proceed. Mother turned around to grab C 's leg. c opened the door and jumped out of the car.· Mother's finger got stuck in the seam of his pants and ripped the bottom of his ·pants as he took off running. Mother called . ;

911 ~nd tried t~ find c At the direction of the police, Mother returned to her residence and waited. The police -eventua11y notified .Mother· that cg was with Father. This incident resulted in the filing of a petition for . . protection from abuse by Father-on behalf of c against Mother in the Westmoreland county court of common Pleas. After hearings before the Honorabl~ Megan Bilik-DeFazio, Judge Bilik- oeFazio by order d~ted February 5, 2014 dismissed the protection from abuse petition. Father filed a petition for reconsideration and by order dated April 2, 2014 the motion for reconsideration was denied.2 Father appealed the PFA denial to the superior cour-t , which affirmed the decision of the trial court.3

·····- . ---· --·-··- . ,. · --- . ----·-~····-····--"'\'"- .2 In .denying reconsi de rat, on, ·j"udgel:fiTfl<=oeFl1Z'tcrreferrerl-·to-the-eas-e . -as-one----- ... - . ..... of·the most tragic custody cases she had ever seen· and 1one·of the most tragic cases of parental alienation. The judge found c... to be very deliberate, 53RD that he knows what he is doing and that he is manipu1ating. JUDICIAL 3In the court's Pa.R.A.P. 1925(a) opinion, the court found that Mother's DISTRICT restfmony was credible that Mother had never threatened c_.,, that Mother's explanation oJ= what occurred on January 1, 2014 was reasonable and fRl!:NClt COUNTY ltNNSYLVANIA

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c has not been with his mother since the incident of January 1, 2014. In the spring of 2014,.Mother attended c 's band concert at Neshannock School and observed the concert, but c111..•would not spend any time with her at that event. Meanwhile, during this entire period of time, Father and c contin.ued the procedure whereby Father will drop c1 I off at Mother's residence but c will not stay and will proceed to the Fireside residence, where Father will pick up the child. conner will videotape these events. He himself testified that he videotapes his interaction with his mother for use of the videos in court. In connection·with the proceedings before the Westmoreland county court of common ·Pleas on the PFA Petition that Father ~rought on beh~lf.of cm F, Father arrived at the Westmoreland county courthouse ·on January 3, 2014. In passing 'through security, Father was asked if he had any weapons. Father denied . . having any weapons. security discovered in his ·briefcase a loaded Glock 9mm firearm and a folding knife with a three and three-fourth inch blade in Father.' s briefcase. Father was arrested and charged with Possession·of a Firearm and other oangerous·weapon in· a court Facility pursuant to 18 Pa.c.s.A. §913(a)(l). The disposition of the· charge was that Father

that the testimony of G F7 that Mother had threatened to kill him and that he was "fearful" of Mother, was not credible. In finding that cg Flacked credibility regarding his assertions that his mother has thr~atened him and · ·pnyslcmy-abus-ed·-him-;····the-e0u·r-t-not~d ..-that.J:he-.chiJ~t..est1mony~ ..w_a_s _ ae·1iberate and..ca'lcu'lated: that he did not; show emot:ion ·under the . -·-·-·--··· circumstances and that by his conduct.and demeanor, c9111!1t was·operat1ng · under a clear agenda to manipulate.the custody order. T~.e cq1.11;t al~o . 53RD commented on a ce 11 phone vt deo wh, ch shows that GS ,·s g,v1 ng his mother JUDICIAL a hard time, that he is talking back to his mother and being difficult and OISTRIC'l" ·unreasonable, but that Mother exercised a 9reat deal of patience in dealing with cg; I and his unacceptable behavior ,n that situation. fr.NC!! COUNTY NN$VI.VANIA

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entered the Accelerated Rehabilitative Disposition Program for a period of six months. Father testified that he had forgott~n that he had the items in his briefcase and that he generally carried a loaded firearm, that he had obtained from a friend who was in the scrap recycling business, for his own protection as he was afraid that Mother would harm him and that he generally carried the loaded firearm to the efforts to ~ffectu~t~ custody exchanges. T~e foregoing.circumstances wherein ·Mother· was.awarded primary· physical custody, but the same was never·accomplished, created a new wave of petitions for special relief, contempt and ultimately, competing claims for modification of the October 1, 2013 custody order, ··all of which petitions, mo't ions and modification requests are being presently before the court for .di sposi ti on. 4 OD December 3, io13, Mother filed an emergency petition for special. relief asserting that Father has continued in a relentless ca~paign to undermine and sabotage C[ 's 1ife with Mother by making numerous false complaints of abuse and neglect; encouraging CIIIIIII to run away from-Mother's home and go to Father's girlfriend "s home at· Fireside; repeatedl y contacting c 's school to make false reports of abuse; repeatedly going

• • None of these motions have been previously determined. Father appealed the .. . . --··· . ---· t October ~;32013 custody order. The trial court took the position that the Joo't:'fOl'f.S-that-were~led-du-A-n~be...P.-enden.cy_Q 6.· ctocel?'.)(,-2013,-the······ the .... ~Qpfa_ pendency of the apRea 1 deprived the court· of uri sdi cti on to decide the After the appeal . ;: ,. · was· resolved by- ·affi rment of ,the tr, al" court's order o . . - ·--·· · · . trial jud9e, Thomas M. Piccione, commenced p·roceedings on all matters that · . were pending before him, but could not complete the· same because of a medical · !:13RD condition. The case was then assigned to senior Judge· Francis J. Forne11i, JUDICIAL .who ultimately recused himself from the case. ,The case the~ became assigned DISTRICT to the undersigned subsequent to Judge Fornell1's recusal order of September 16, 2014. NRll:NClt COUNTY •ENNSYL.VANIA

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to c "s therapist and telling him that Mother is "crazy" and maligning the therapist against Mother; encouraging c to perform poorly at school; telling··c•• that the Mother and mate rna 1_ grand pa rents wi 11 harm him; and te 11 i ng · c to disobey his Mother and to create conflict so that false allegations can be generated against Mother. The petition . . . requested that Mother be-provided complete control over c 's cell p~one; complete authority over the selection of CUl Ul's therapist; giving Mother complete authority over c 's ability to have telephone conversations with Father while in her .cusrody: prohibiting Father from injecting himself into c 's ·herapy; prohibit c P from being.at the Fireside residence without.Mother's· consent except when he is with Father during court-authorized scheduled . part~al custody . with F~ther; prohibiting Cllllllf from being in the care or presen~e of . . Father's girlfriend without Mother's consent except when Father is exercising court-authorized partial custody; requiring ! Lawrence county children and Youth services to provide a copy of all reports.and investigations concerning cts111111tto Mother; ordering that all law enforcement agencies and Lawrence county . cvs and. any other agency return conner only to Mother, should c leave Mother's home without her consent; and prohibiting Father·from doing anything to undermine Mother,s authority or undermine or sabotage c••t'' s remaining in Mother's home or per{orm1.ng at c••' s lever'f>r-compet~ce in schoo-l-;------·--- . . . __ . __ on January.7, 2014, Mother filed an emergency supplemental 53RO JUDICIAL DISTRICT petition for special relief adding a first person narrative of

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CIIIIIIII'~ behavior asserting that it is a product of Father's manipulation and coercion and requesting that the court impose heavy monetary incentives upon Father to convi"nce him that it is in his best interest to support c-•'s relationship with Mother. The narrative recited c 's refusal to stay with his Mother, each time either walking through Mother's yard back to . Fireside, or stopping at Mother's house telling her that he was not staying and leaving and going to the Fireside residence, c recording w1th his cell phone his actions and an incident on oecembe r 8, 2013 where Mother fo11 owed ca H to Fi reside, tried to get him i nto the car with her, which he refused., with 'c r-scor-df nq her, which incident ended wi'th c staying with Father and Father's girlfriend at Fireside and police refusing to enforce the. order by retu.rni ng ca T to Mother. The narrative includes repeated incidents of ca B getting off · the bus near Mother's resi dence , wa l .king through the back _yards to Fireside, and not staying with Mother. on April 8, 2014, Mother filed a petition for contempt reciting that since entry of the October 1, 2013 order, Mother, who has primary custody of c , has only had custody of c for one overnight on December 16, 2013 and that all other ·times conner is improperly in the custody of Father or Father's girlfriend. Mother recites in this petition that Father pays Jip service to the order by dropping c off at Mother's. ·. resi'dence every other .s'unday' where, rc-c- gets-out-of-tt-le-- . .

53RD car, runs to Father's ·girlfriend's residence where Father is JUDICIA I. DISTRICT waiting for c Father p icks c up on the street behind

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Mother's residence and they depart. Mother further asserts in this petition that Father blatantly undermines Mother's role as a parent and speaks of her in a derogatory, condescending and otherwise inappropriate manner in an effort to reinforce c 's unfounded beliefs about Mother. Mother also alleges in this petition that Father refuses to communicate with Mother and provide her any information about c•• on 'July 1, 2014, Father .filed a petition for modification of primary physical and legal custody reciting that c has not spent an overnight with Mother since December, 2013 and that ·the best interest of ca . I would be served by awarding Father .physf ca'l and 1 ega1 custody. · on July 28, 2014,· Mother filed an answer to the petition for modi fi cation of custody asserting that Father has acted in .~, defiance of the October 1, 2013 custody Qrder; that Father has engaged in a course of conduct designed to deliberately thwart the mother-child relationship and that awarding custody of C£J to Father would not be in his best interest. Mother also in said pleading counterclaimed for modification of the ~ustody '3 order requesting that the October )(, 2013 order be modified to limit Father to professionally supervised contact and visitation of c at his sole .cost reciting all of the allegations made in the previous petitions filed by Mother and also referencing the petition for protection from abuse proceedtnq filed by . ,;;the r ii ,.w.,.,., •••

we's"t"mo".'rei and-·· county-on~"Jamrary·-2-, -201:4-:-1:h-a-t-.-was . . based . . ., . . .

53RO ·on the January 1, 2014 incident wherein c jumped out of the JUOICIAL OISTRICT car that he was occupying with Mother and also referencing· the

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January 3, 2014 incident wherein Father brought the loaded Glock mm firearm and folding knife in his briefcase into the Westmoreland courity court of common Pleas. on August 26, 2014, Father filed an amended petition for modification of the custody order specifically reciting that the order should be modified because Mother has not exercised any custody, legal or physical, of c since on or about December 12, 2013 and that c refusing to go to Mother's house for Mother's periods of court-ordered custody time. on.September 5, ·2014, Mother filed a petition for contempt ·reciting that c O was to begin school at Neshannock Junior ~enior High School on Augu~t 25, 2014, Neshannock being the school district that cg Shad always attended, and that Father, in direct violation of the October 1, 2013 custody order, enrol?ed cg; in the ·Hempfield school District without .any notice, ·discussion or other information to MQther, the school district being in Westmoreland county, the county· in which Father now resides. The petition further recites that Father has continued to deny or .coerce, conspire and otherwise control cg in an effort to deny Mother her primary physical custody. SUMMARY OF EVIDENCE Father was called to testify as on cross by Mother. Father testified that on January 3, 2014, he brought a loaded gun into ... the .Westmore 1 and .co.unty cou.rthouse :-Ims~-9mm-handg1:m-w-i-t.h- . ._:. ten lives rounds in it. In addition, he had a folding knife in 53FIO JUDICIAL DISTRICT his briefcase. The weapons were in his briefcase from the day

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before when he had come to Lawrenc~ county. He stated that·he had these weapons in his briefcase Mother has thre~tened to kill him and c Father stated that Mother :had j~st dragged c from behind her SUV and he was fearful for his safety and for c••'' s. He acknowledged that he had these weapons to use against-Moth~r if necessary. Father carried a gun with him nearly every day when he lived in Lawrence county. Father testified that he had·forgotten he had the gun .and knife in his briefcase when he entered the Westmoreland county courthouse for the purpose of obtaining a PFA on behalf of c against Mother. Father does have a permit to carry a firearm. The gun had:been loaned to Father by a Mr. Lewis who· was fearful for Father's safety. ·Mr. Lewis felt this way because·of.information received from Father. Father still feels that he needs to protect hi~self from Mother. Father acknowledges that the current custody order of october 1, ~013 provides for cg s -to be living with Mother, althoug~ in fact c has been living with him. Fath~r · further acknowledges completing the student enrollment form for the Hempfie,.d Area school Di~trict and signing it on August 21, 2014·;n order to enroll conner in the Hempfield Area school system. Father. acknowl edqed that Mother did not aqree .for him to do this. on this form the information Father provided was ·'that c lives with him, that Ms. s-is the other ··c:a:retaker··or adul t in the home, Father's-and Ms~··· . ····-

!l3RD contact. phone numbers are provided with no phone number for JUDICIAi. DISTRICT Mother. The form further required information as to "legal

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custody/court documents/special arrangements" relative to which Father placed "Father". Father explained that he answered that way because he felt that the current situation constituted sp~cial··arrangements as Mother has abdicated her role as a parent. Father felt that he had no choice but to enroll him in Hempfield because Mother would do nothing to keep enrolled in Neshannock. Father maintains that Mother has refused to provide c:•• a p 1 ace to 1 i ve .. Father. takes c every other Sunday night at 5:00 p.m. for the custody change but Mother usually is not there. . . Father moved to Greensburg in July of 2013. He had previously be~n a family physician at Family Health care Partners in Mercer and Grove city and was admitted to the Grove city Medical center. Father is now the Assistant clinical Professor of Family Medicine and osteopathic Principles and Practice at the Lake Erie college of osteopathic Medicine located at the Seaton Hill campus in sreensburc, Pennsylvania. Although Father had other opp9rtunities .for teaching, he chose the Seaton Hill campus because it was the closest to where Mother lived, foregoing other oppo_rtunities to teach at medical schools that were farther away. · Father te$tified that·Mother lives on Shenango Road i~ Neshanno~k Township, Lawrence county, while Ms. slllllowns a ·residence on. Fireside Drive that is located approximately two- ·te,rth·s of a mi 1 e from Mother' s residence ..

531'!0 JUDICIAL DISTRICT order, c- Father noted that subsequent to the October 1, 2013 custody _was livi_ng with Mother but cm November 7, 2013, he

IVRl!:NCI: COUNTY 11.':NNSVLVANIA

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began running away from Mother. Late that evening ran Cllllf out of the house, in the evening, wearing nothing but pajamas and a pair of socks. It was approximately 30 degrees with snow on the ·ground. He ran from Mother's house to Fi reside Drive where Ms. s ..... was staying. Father was called and told by Ms. s-that c was inconsolable. Ms. s-was enroute to take c to a hospital because he was so upset, but Father spoke with Ms. slllllon the telephone and directed her to return to Fireside. Th~ police called Father and Father advised where c•• was. Father spoke. with c••, and Cl 3 ·explained that he was upset because of the yelling and screaming that was going on at Mother's home. Father wen~ to Fireside and . . had c sleep at Firesid~ that night. Father had sent Mother an email telling her where c was a~d that he was safe. Mother did not come to Fireside to·pick up CQ&lllllllllt Mother sent. an ~mail indicating that c 's backpack and school items would be on her front porch, and in fact, Father picked up c 's things from Mother's front porch on the way to school the next day at Neshannock. The next day c refused to leave school because he did not want to return to. his Mother ' s. Even tu a 11 y, c•• did go to Mother's house, and she brought him to Father's house .as part of the custody exchange in Greensburg. ca :Shad been fearful that Mother would no·t return him to Greensburg for the custody exchange, but once he was assured that she woulcf ao so., he 53RD agreed to go with Mother. JUDICIAL. DfSTRICT

1£!;NCI£ COUNTY ~NSVC..VANIA

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c•• returned to Mother on the exchange day of November 10, 2013. c; was to be with Mother for the week, but on November 13, 2013, c ;· after school, went to Fireside. Initially, cu. had refused to leave school that day. Clllllf had informed the guidance counselor that he would not leave school because he would not go with his mother. Mother was informed of the situation and sent the maternal grandmother to attempt to get c c refused to go with her~ The school called the police, and ·an officer Sikes was dispatched to the school to talk to conner. .c was taken to the po1 ice ·stati-on.. Eventually the police officer drove cg to Motheris. c exited the police vehicle, walked past Mother's house, and over to Fireside. on November 14, 2013, Father took c to meet with.his therapi~t, John Moyer, and invited.Mother to attend. Mother did not attend, and on November 15, 2013 Father took CSL 8 to school at Neshannock. After school on that day, ca a went to Fireside. Father emailed mother with the information as to where c was and invited her to go pi ck up c ( J, with Mother directing that Father. bring c to her. on November 18, 2013, cg I. got off the bus from school, walked passed Mother's house, and went to Fireside. Father emailed. Mother as to where cg I was. 'The same· thing essentially happened on November 19, 2013, and again on November ·:20, . ·2013, and again on November· 21, 2013. on Friday, Novembe·r- . ···-

53RO 22, .2013 c went to Mother's after school. That day was a JUDICIAL. DISTRICT custody exchange day for ca a to be returned to Father. RltNCC: COUNTY NNSYI-VANIA

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c g called Father and said he would walk over to Fireside because Mother was refusing to drive him over. Father could hear. yelling in the background. Father went to Mother's home, with police present, and c•• came out of the house and got into Fathe~'s car and Father and c returned to Greensburg. on Sunday, November 24, 2013, Father states that he .made an effort to return c- to Mother, had driven c•• to Lawrence county from Greensburg, Jet c•• out of the car at Mother's whereupon· c i a knocked on the door but there was no answer.· C15E then went to Fireside. Father sent Mother an email to inform Mother where c .... was. Again., c.., walked to· Fireside on November 25, 4013. on Thanksgiving Day, November 28, 2013, Ctllllllll' was to b~ with Father for Thanksgiving. At 8:00 p.m., the exchang~ tim~, c was dropped off at Mother's but CIIII' walked to Fireside. The maternal grandmother ·followed c ..... back to Fireside in her car. Father returned

to Fireside. on·oecember 3, 2013, the first day back to school a~er Thanksgiving break, after. school CB S again went to Fireside. The same scenario . repeated itself for· the rest of . the week, whereby cg '7 would go to Fi reside instead of to Mother's residence. Father offered that c could stay overnight ----u ...~.,riday n.ight and attend a counseling appointment with Mr. Moyer .-'• ·the next day.·. However 1 C had gone to Mother's house after

53RD school put Mother was not there and the door was locked so JUOICIAL DISTRICT

.VR£NCE COUNTY •r,;NNSVL.VANIA

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c & q went to Fireside. Mo.ther did not come to Fi reside to get

c:••on December 8, 2013, Clllllf again went to Fireside after s~hool. on that day, Father received a.telephone call from . officer DeWitt of the Neshannock police advis-ing that Mother had

missing· child. · At the time, par tarnccnt+nued c- gone to the police ·station about 8:00 p.m. to report c

through the week. was at _Fireside. on December 11,·2013, This as a

c~ept to Fi resi d~ but that eve_ni ng he had a band concert

also. c- at Neshapnock Junior High school. left ·contend~d that Mother ~ad left without Mother attended the concert the band concert with Father. Clllllllf as Father CIIIP was suppose~ to stay with her that night. As with each of.the foregoing events, Father documented all these matters with emails. Fattier gave testimony that explained the same pattern of Cllllllfgoing to Fireside until December 16, 2013. · on that date, ctllllll did go to.his mother's. cllllf was on the phone with' Father talking about a school ·project. Father-could hear Moth~r in·the background making comments. Family members came to Mother's home that everrinq , Afterw_ards., Father explains that 'llllll]f began to feel uncom:ortable and called hi~ saying. that he

---1 -states that c- was afraid to stay the ni.ght and was going to run. called him at varfous ·times during the night Father .

until a time close to midnight when he ca1led one last time . .. . - .... - . .

53RO asking if Father felt sure that he would be ok. The next JUDICIAL DISTRICT morning·Mother drove conner to school. The next day, cg O did

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not go to Mother's but went again to Fireside. on December 17, 2013, when c~wen~ back to Fireside, ·he announced that he was never" going to his mother's again. Father's subsequent testimony continues with the same ri tua 1 of c... con ti nui ng to end up at Fireside. on ch ri stmas

with Mother, with Fireside. the result that c- Day conner went up to Mother's door, had a brief conversation left and went to

c- on January 1, 2014, c-wa-s dropped off at Mother's. left Mother's and went to Firesi"de. This time Mother drove to Fireside fQllowing c He got into Mother's vehicle. They drove back to Mother's home. He got out again and ret'urned to Fi.reside a second time.· Mother and maternal . grandmother followed c back to Fireside again .• After an exchange, clllllllllf got ·b~ck into the car. Mother did not return to her home but drove in a different direction with the result that, at a traffic l.i ght, c exited the car. Mother tried to stop cg ?-with the result that ca ripped his pants, but was able to exit~ C•tlll.., hid behind a convenience store, called his father, and was in fact picked up by Father. The police arrived shortly thereafter .. Father then.filed the · .foregotng referenced PFA in Westm~reland county, which. was dismissed. As a result of the PFA proceedings, Mother could :· have no contact with • c until the PFA was dissolved on ----H·---, :February 5, · 2014. on ._.February 5, 2014, Father dropped· c••off in the 53RO JUDICIAL DISTRIC'r driveway of Mother's home, and ca 1 immediately ran to

WR!l:NCE COUNTY •r.NNSYLVANIA

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Fireside. Thereafter, the same process continues whereby CIIIIIIJ refuses to stay at Mother's, and after school upon being dropped at or near Mother's home goes directly to Fireside with Father continuing to document to Mother by email where CJ • is located. At each scheduled custody exchange thereafter, the same pattern continued wherebx c would be dropped off at Mother's, Conner does not stay, and goes to Fireside~ on many of these occasions, Mother would not be at home. All of these incidents ~hereby cu S iS'' dropped off and does not stay are documented by ·Father in emails. This circumstance had continued up until the time of the most recent court filings .. During ~11 this time, according to Father, ·Mother does nothing with respect to c 's needs as it relates to education, hea'Ith care, or extracurricular activities: No contact occurred between Mo~her and Father relative to. c and Mother had ·no contact with c during the summer of 2014. Father initially thought it might be beneficial to· enroll c•• in cyberschool in the event that things changed but eventually decided to enroll him in Hempfield. Father invited Mother to a band concert at Hempfield on October 27, 2014, but Mother did not attend. Mother has not participated in any activities at the Hempfield school. Father testified to c 's exceptional performance at Hempfield and his being engaged in various extracurricular activities from which he has ---- ..U

benefited. c .is in the. eighth grac1e,-a:n-d-ts-i·n-acl·van-Gsd--_,_

531'10 classes. Mother has consistently refused to sign any documents JUDICIAL 015,-RICT relating to c 's education at Hempfield.

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Mother testified that she is five feet, two inches in height and weighs approximately one hundred thirty pounds. Father .;s approximately six feet, two or three inches in height. Mother denied that she has ever threatened to shoot Father or to have ·ever heard him make that allegation in the past. In fact, she has never touched a firearm in her life. on the.other hand, Father has threatened her. In 2012, Father told Mother that she deserved to die. she just learned in the course of these - proceedings, the day before her testimony, that Father was carrying a loaded firearm at the custody exchanges. Mother . . · testified that she has never done anything to c•• in words· or deeds that in any way conveyed that she would harm him and in fact she has never physically harmed him. The. mother described the.standard exchange since October 1, 2013 by explaining that Father pulls .into the driveway; cg 7 comes to the door, either ringing the bell or ~nocking; Mother opens the door; c holds up his phone and records, stat,ng "I am j ust he re to te 11 you that I am not staying"; cg 7 then walks through the front yard between the houses and through the back yard holding his cell phone up the whole time recording and walking·over to the Fireside residence. Father sits in the driveway for a minute and then backs out and drive~ over to Fi reside.

illegal drugs, .although •.. _ Mother is employed as a dietician. -.... she has·been .. _ Mother has never used accused of such by .Father.

S3RO Mother denies that she has abdicated her respon~ibility as a JUDICIAL DISTRICT parent. she did not see any need to respond to an email where

0'.NCE COUNTY l'INSYL.VANIA

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Father wanted c•• to be in cyber school because c•a:111.. was already enrolled in Neshannock where he had always gone to school and where he had done very well. ~while in Neshannock his grades where A's and he engaged in activities such as soccer, . baseball, took flying lessons and played a musical instrument. Mother noted that ca ff had taken flying lessons s ince he was about ten years ·of age. The maternal grandfather would often take c••to the flying Iessons as c••enjoyed a close relationship with, until the flying lessons were stopped about a year ago at Father's insistence. c was very interested in the flying lessons and Mother would participate with c in the lessons as part of it included classwork with which Mother helped ca R. Mother noted in her testimony that when Father calls and spends long ·periods of time with c on the phone, c111111• will thereafter be distant, reserved and avoid h~r. When c1111111• is ·out of his father's sphere of influence then he is good and that he is happy, engaged and interacts with Mother s~ch as wanting to watch a· movie. c•• is very involved with h+s friends when he resides with Mother. Mother denies that she had no plans for.c•• for school as the reality is that c•• is to reside at her house.and he would normally go to. Neshannock.at the start of the school year just like he has done every other year. There is no reenrollment process to continue at the same schoo l, she found .out. that Father had made other school pl.ans 5)RD for c by called Neshannock on the first day of school and JUOICIAt. DISTRICT learning that he was not there. She does not go to C 's

i'!ltMCII: COUNTY l'INSYLVANIA

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functions at Hempfield because she does not feel that·it is wise to be near Father, as she is deathly afraid of him. she cannot sign forms verifying any reading assignments as she has not been able to interact with conner or to even speak to him about it.' she testifies that she can't sign a form saying that c T has read something when she does not if he truly did it. she has not .had the interaction with c•• because c••1tdoes not come to her .house. Her response to Father's claim that he complies with the I

order by bringing cg 2 to her house every other Sunday at . '•

exchange time is that she is normally there although she is not· there every single Sunday because some Sundays he comes and some he doesn't and in fact she·knows that c will not stay but will simply ~ome ·to her door and say terrible things; things that sh~ knows he does not want to say but he will record .her on his phone for him to tell things such as telling Dr. Chambers that she had answered the door ·naked, which was false. she does not go to Fireside to pick-up·c• .. .., after he leaves her. residence because she knows that c is not going to come with her. The last time she tried to go Fi resi de before January 1, 2014, she was greeted by the p~ljce and was told she was under arrest for trespassing. she does not feel comfor tab'l e attending sessions with Mr. Moyer as she feels that he is I'

----U manipulated by Father. when she di~ show up at appointments ··,· scheduled for her by Mr. Moyer,·M·r. ·Moyer falsely ~ssert·ee1that:----- . ...

53RD the. appointment had·been changed even though her appointments JUDICIAL DISTRICT cards show the correct date. When she showed up for her

Rl!NC:5: COUNTY NNSYLVANIA

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orthodontist appointments, she would find out that Father had. cancelled the appointment. The orthodontist refused to see Mother without Father being pre~ent. Afterwards, she would be accused of not parti~ipating. Mother also referenced disturbing photos on Internet on or. Moyer's website that appear to have pages of young girls with inappropriate names. Her ~xplana~ion of the QCcurrence on November 7, 2013 was ,. that c left her house about 9:30 in the evening after everyone, including~ , had gone 'to bed. There had been no issues that evening. About 9:30 on the 7th, c got up to use the bathroom, and took of down the steps and straight out the front door wearing his pajamas. There had been no interaction.with c from the ·time he went to bed until he le~. He did have access to a telephone .. Issues.had previously . . risen with respect to .cs 5 using a telephone.to have conversations with Father. Generally after he would hang up the phon.e with his Father he would have a tantrum. Approximately . two years ago, after a conversation with Father, Cb 7 hung up the phone and then began screaming saying that Mother was going. to kill him. on this occa~ion, after c ran out the door in hi's pajamas, Mother ·called the poli<=e because it was dark and 20 to 30 deqrees in temperature. when cg 5 would leave her home previously, he typically would go to Fireside. The police ~ventually contacted her and asked her to come to the police station, which ·she did. At . the po Ii ce s-nrr;-n-rr,she-wa-s--me:t-w.ith.----·-.-· 53PID two police officers who advised that c was in cranberry JU,DICIAI. OISTRICT with Ms. sichak. she then received an email from Father who

,WRl!:NClt COUNTY l'f;NNBYI.VANIA

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advised . that he had c and would put him to bed. she did not at that point try to pick up CtlllJ because she did not want to be accused of abusin~ him, beating him, dragging him or that kind of thing. she next saw c at the police station the next day but c refused to come home with her. Mother is of the opinion that the situation can be

_s_ rectified if Fi-reside drive taken out of the picture and that the interaction with Father and Ms. elimin·ated or stopped, and if that were the situation, C£ needs to be f would be back to his old self within a week or two. r, 2013 order came out Mother notes that when the October there were approximately 'two ·solid weeks that ca 8 did not have to go to Greensburg and c:•slll•was fine with the situation. I

When it was time for her take.c to his father's he was not in any hurry to go and in fact did not want to leave before the ~equired time and referenced that he had bad stomach ache and didn't feel good. c was returned to her on Sunday, and he was fine through the week. Everything was fine·until the event of November 7, 2013. Before that, c•• was warm and · affecti onate , · -they did things together, he had friends over and .he was doing well at school. Mother denies cursing, screaming and saying derogatory :things while he would be on ~he phone with.Father . . . . . , · · Mother did not .see c on his 1 ast . birthday, February

531'10 · 10, 2014, because ca I doesn't come to her house. The last JUDICIAL DISTRICT -t ime she saw c•• before his birthday was January 1, 2014.

VRl!NCI!: COUNTY G:NNS-Yt.VANIA

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Mother has his birthday presents and his Christmas presents and he will get them when he comes ·home. Mother does not_go to the Hempfield school activities because she is fearful of Father·and Ms. s ....... Mother went to the last Christmas concert at Neshannock although he was. supposed to be at her house but was not. Mother did not;" see c••s• over. the chri stmas ho 1 i days of 2014 at a 11 . Cg 3 says to her when he is dropped· off that he just doesn't want to stay; that. he can1t stay; that he is not. going to stay here; and that he is afraid of her. He speaks 1ike a robot, holding his phone recording, stating "I am afraid to stay here, I am no~ staying here, I am afraid to stay here." she indicated that she has never seen another human being act that w.ay. At.the christm~s concert she went to the band room to say hello to c•• but he would not even look at her. Mother testified that he has never authorized c•• •• to be at Ms. s~'s house on Firesjde nor to be living with Father at Greensburg other than the time called for in the custody order. 'Mother has not authorized C••• to be enrolled in the Hempfield school District. on January 1, 2014, c•• was dropped off at 8:00 p.m. by Father. Father pulled out of the driveway and left. c•• walked through.the yard and went to Fireside. The maternal · · · · ----·-- grandmother then picked Mother up in her car and they followed . , n tnec_a_r_, -----·- --- C•£•• to Fi reside. As ·they were they attempted to talk to him and eventua 11 y got into the 53Rb JUDICIAL OISTRICT car. They pulled back into Mother's driveway; but as soon as

V!tENCI!'. COUNTY ENNSYLVANIA

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they did, c•• opened the door and took off again towards Fireside. Mother and maternal grandmother followed c•&llllt again. They ~ent back to Fireside. went back into the front door and was there for a minute and then Father came out of the neighbor's house and went into the Fireside.residence. c then came back outside and got into the car. They traveled out of Fireside and attempted to go to the home of Mother'~ girlfriend. when they got to a red light, Mother heard c 's· seatbelt unct t ck and feared that c was going to jump out of the car. Mother tpld maternal grandmother.to go so that cm s would not be able to jump out. c opened the door and Mother turned to grab his leg so that he would not jump out. c yanked his leg and his jeans ripped and c•• jumped out of the car. Mother then called the police. Grandmother turned the car around and they attempted to· look for c but could not find him. c was later found at Fireside. -Father was at Fireside when c turned up there. Mother learned that c had told his father that he wanted to stab her when she received medical records from Dr. stroyer, Cllllll's physician, which indicated that ctllllllt's statement that he wanted to stab Mother was made appr-ox'[matie'ly one year prior to the time that she obtained the records. Father had never talked to Mother about that statement. At the time the statement was to have been made, c had been coming to Moth"~r·' s house· and ···h~vi ng . regul.~r- contact wi.th her. Tne ···--· ----

53RO record actually indicated that Father had made that report to JUDICIAL DISTRICT br. strayer, not cf/1/1111111.

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on December 16, 2013, c got off the bus: and wa 1 ked into Mother's home. c 5 had not been with her for over a inonth prior to.December 16. on December 16 , 2013 , c - F did his homework. It was a family member's birthday. After Cg F did his·homework, he played a video game. Mother's niece and nephew were over and cg 7 interacted with them and with the maternal grandparents. c was his old self and was fine with Mother. He was warm, affectionate and loving. cs ? spent the night at Mother's on December 16, 2013. The next morning, Mother·drove c to school. He was fine. Mother asked cu J if would be coming home after school and ca 7 said "Yes". ·However, cu p did not come to her home after school that day and the next time Mother saw ca ff was on January 1, 2014 when the unfor-tunate incident with cu R jumping out of the car occurred~ Mother tries calling c on the phone but he doesn't answer •. ca S has a pet at Mother's home. It is a ~og named Rex. c always had a good relationship with Rex. Rex slept on . . the bed with c However, when ca 5 's re 1 ati onshd p with Mother began to deteriorate, his relationship wi~h Rex also deteriorated. Mother denied ever being unclothed at .any time that she had opened the door for c She also denied that a video exists ---IJ showing that she had no ·clothes·.on. as the tim.e 6eing re'f1!re·n·e&1-

33RO was the.'time. when she answered the door and had a nightgown on. JUDICIAL DISTRICT

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Mother explained that. she and the maternal grandfather stopped t~king c to the flight lessons after c accused her and the maternal grandfather.of bashing his head off the wall or.otherwise attacking him in November. of 2012. When asked why Mother has not attended to any of c 's needs, physical, mental, educational· or otherwise, Mother re~ponded that it is because Cl will not talk to her and will not come to her house. Delores Dicola, the maternal grandmother, testified that ' C]p zr was a perfect child until things began to change in 2012. The change-inc 's attitude ~oincided with long telephone calls from his father. These telephone calls would be hours long. · Before the phone calls ~·•a...•would be his normal loving ·self and then afterwards he would become sullen, non-talkative and belligerent. The maternal grandmother also described the times that ca would be. dropped off at the custody exchange and would not stay.. she described that CJ p would get out of the car, not even come to the front door, go to the right of the garage and around to the back of the yard 1,.1p to the next street and towards Fireside. The.entire time he would be holding his phone video recording the event. At times. the maternal grandmother would yell out that she loved him and· needed to see him and he would just keep videoing and. keep ·waTl<·ing. Th-e-·ma:te·rna=t,---- grandmother noted tha~ in the last few months he started coming ~3RD JUDICIAL. DISTRICT to the door. He would open the door, or.ring the doorpell or

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knock, and he would just state that he was not staying and leave. c is now different in that he won't talk, he stares and continuously videos. The witness also corroborated Mother's t~stimony as to c being fine for the two-week period after the October 1, 2013 custody order was issued and was· sullen when he had to be returned to his father. The witness then described seeing him on December 16, ·2013 when he came to Mother's house and stayed. It was the birthday of maternal grandfather and a party was held. c was fine, 'he interacted with his cousins and ·played video games. The ·witness did not see c s again until January 1, 2014. The wi tness: then· corroborated Mother.' s version of what occur-red on January 1, 2014 when c kept leaving Mother's residence for Fireside and eventually jumped out of her car when stopped at a stop light. The witness testified to the close relationship that CIII .. enjoyed with her husband, wherein c referred to him as "Pop". They did everything together and went everywhere together. c would rather be with "Pop" than with anybody. Things changed after the incident that led to the PFA and the accusati·on that her husband supposedly beat h i s head on the wall or that·he attacked him. since that time, the maternal -. 'grandfather has seen c only a couple of times. one ti.me was the ·bi r.thday pa.rty .. of December 16, 20-..,. 1'3-:r--. -.----------.J l53RO when Father retook the stand, he descriQed his version of JUDICIAL DISTRICT the events of December 16, 2013, wherein he related that he had

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received a series of telephone calls through the evening from c distressed and th.reatening to run away from his Mother. Father stated that he was able to get cg p calmed down but after that he flatly refused to return to his mother's. on Janu.ary 1, 2014, he was able to persuade ca I to go with his mother. After the )anuary 1, 2014 event wherein c:•• had removed himself from the maternal grandmother's vehicle, c:•- consistently ,t . refused to return to his ·mother. He· summarized that he continued to take c· to Mother's home for the custody exchanges.but·eventua11y Mother even stopped being at home. Father testified to informing Mother of all school activities bu~ she has ahosen not to appear at any of them. she was specifically .• informed of c 's band concert held on December 9, 2014 and she.did not appear. Father continues to take c:t111111• to Mother'~· home for the custody exchanges. she is general~y not there, and he confirms having brought him there with an email each time. on November 23, 2014, c was dropped·off and Mother and maternal grandmother were there·, there was some discussion at the doo~ and c left, going back to Fireside again. Th~ last custody exchange before the hearing of January 12, 2014 was on January 4, 2014. Father brought c f ~o Mother's ·-home~ Mother was not home and they returned to Greensburg. ----J Father testified that he encouraged- cg pi] to llaVec:ontact __. -.

!S3RP with his maternal grandmother. ca I is adamant that he will JUDICIAL DISTRICT have no contact with his maternal grandfather. cg I sent the

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maternal grandmother a card inviting her to lunch at the olive Garden in cranberry on a Saturday in necember , 2014. The maternal-grandmother responded with a text message indicating that she would look forward to lunch. The lunch meeting between c 17 and his maternal grandmother did occur and by all accounts, both enjoyed it. Father . testified that c ' 5 continues to excel in schoo'l and is starting to switch over from trumpet to playing the tuba. In addition to his band activity, he is in soy scouts. ·.Father described c presently as happy) getting .alohg well in school, getting along well with his frien~s, and that he is one of the most pleasant kids you could meet. He is helpful around the house and does chores. He excels academically. He no longer has the panic attacks that he used to have while at his mother's house. The maternal grandmother retook the stand and testified as to the luncheon that she had with c It was in November, 2014 before·Thanksgiving. c sent her a card in the mail inviting her to.go to lunch with him in cranberry. The card _requested that she RSVP by phone. The card indicated that j~st she should go. she responded that she would mee t him at the olive Garden in cranberry at noon on the appointed Saturday. He was by himself an~ the luncheon lasted one.hour. The maternal grandmother attempted to bring up the mother but c ·said he was ·not' there to talk about -h'i s mother. c dfcl ask a:lnmt-:--·--:-

53RO his dog, Rex. The lunch~on ended well. Father picked c up JUDICIAL DISTRICT after the Iunch . The maternal grandmother and cg 9 ·agreed

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that they would possibly do it again but c was to get in touch with her if he wanted to have lunch again . . On or about December.. 13, 2014, materna·l grandmother sent cg a by text a picture of her puppy. c 1sr's response was to question whether Mother stole another dog from another boyfriend. Grandmother responded .that was not nice and that c had hurt her feelings. Grandmother next sent another response :5aying "what happened to the c · I knew? You are certainly not him. 11 Further response from ca R included ·the statement that "The c you knew, he has grown up and is ·thinking for himself. I am not going to let anyone abuse ine." . The maternal grandfather, Johh Dicola, Jr., testified that he had a good relationship with c from the time he·was born . ~ . . unti 1 about October or November of 2013. · He and cs 8 did many things together including go on vacations together. c was interested in. the maternal grandfather's hobby of restoring Jeep vehicles and worked together in the garage often. He and ca I

took flying lessons together. The witness testified that he loves c.. 111.ana there is nothing that.he wo~ldD't do for him. The witness has not seen c since·oecember 16, 2013. Mother had a party at her ho~se with the other·son and his children and some fr+ends and c was there. Cc£ I was fine. They had cake and ice cream. The matern~l grandfather has. ~ot had any contact with c since that time. A~er ··that, 'c was different. He was . fearfuT-·ana not~hrsame--·--- -····· SJRO young man that he knew a month earlier. The witness indicated JUDICIAL OISTRIC'l"

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that c•• seems to be· replicating his father's personality and mannerisms. The maternal grandfather was also asked.about the events of November 25, 2012 which led to the PFA proceeding against him. that wa~· dismissed •. The witness.explained that he was at home when Mother called him and asked him to come over to the house. He could hear that c:t11111•was screaming. When he arrived, c•••ran into his bedroom and was screaming. c•• was screaming "Don't come ~ear me--you're going to kill me. The 11

witness pushed the·door.open and he was holding c: .. ...-'s legs while Mother was ~olding c••'s arms , C••• was flailing all over the place and his head was bouncjng on the carpet as he was flailing. The whole event took about five minutes.. Before this event, there had never been any confrontation. in any way between c and his maternal g~andfather. . same night, That very c a S ca 1 med down. He stopped his ranting and fl ai 1 i ng and the· witness let go of his legs and Mother let go of his arms. cg went to the bathroom, then came out and said 'he was hungry. He ate a bowl of cereal and then went and sat on the couch. The witness and cu 7 then had a discussion about a new Jeep vehicle that t~e witness had purchased and aske~ him if he would like to take a ride in it after school on Mpnday night. c aid, "That wou.1 d be good' 1, .and the next night they did take a ride .to the Hermitage Dairy Queen and got ice cream. .·. -----. ·····------;--:-------------- ... " Ray~ond Ki 11 en .. testi.fi. ed. f-!e i s·-t..-he_g_u_i aance counse1<5r.~-····.--·. : ·-····: . 53RO Wendover Middle School, which is a part of the Hempfield School JUDICIAL OISTRICi District. On· the first day of school, c111•z• came to his office

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and wanted Killen to know that he was living with his dad and he was worried thftt he was not going to be able to continue living with his dad. The witness also teaches a guidance class that meets o~e out of every six school days. The witness also assisted c when he was dressed as a school Spartan for open House. c is doing fine in his class. There is a nice group of kids that cg 5 is friends with. cg f is doing very well in school. He achieved distinguish honor, which is ninety- six percent grade potrrt: average or higher and he is on track to do that.for the second term as well. The witness had made notes of what··c- had .said to him about what is going on with him ·at home. The notes indicate that c""" said that he lives wit~ his dad but mom. is fighting for custody; that he does not want to l~ve with mom; that she has become viole~t w~th him, screaming, calling him ·stupid, tackling him when he tries to call his dad and that cvs has been involved and has done nothing. The notes further indicate that the maternal grandfather broke down the door to·his room and tackled him and has hit'him. The witness did indicate that he found it somewhat unusual· that c came' to him to explain what was goi_ng _on with him on that first or second d~y of school because CIIIIIII did not yet know him and did not at· that poi'nt have a comfort.level with him. · Robe·rt Raymond Ko11 ar tes·t'ff, ecr:--Re,-s--a::-'te-ache-r-i-n-the--~- .....

53,tO JUDICIAL DISTRICT

WRli'.NC:rt COUNTY and c- same middle school as Mr. Killen. is one of his students.' He teaches American History conner is doing "superb" in .. .•

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his class. He scored a ninety-eight percent the first quarter and will get a ninety-nine percent for the second quarter. He is polite and he is willing to add to the conversations that invo~ve dialogue over historical topics. He asks a lot of . . questions and seems to be enjoying the class. Dr. Bruce chambers, a licensed psychologist, was appointed· by the court to perform a custody evaluation and was·called to testify. or. chambers has impressive qualifications having performed over 600 child custody evaluations and is involved in training child psychology fellows at university of Pittsburgh. He has provided expert reports and testimony in a number of courts in the commonwealth oi Pen~sy1vania. He holds a Ph.D. in Human Ecology but not in Psychology. At.present, or. chambers does not have a clinical practice, only performing forensic work. In performing his evaluation, or. chambers met with and observed Mother, Father~ c...-,, and Ms. stllll. He also reviewed the three previous custody evaluations that were conducted in this case. He conducted psychological tests of Mother and Father and found no evidence of psychopathology, although he did fi"nd that both parents have personality traits that compromise both parent's capacity to cooperate a~d to work ·in the child's best interest. · or ; Chambers found credible cg 's statements to him that .. ··--·-----·-·-H--- ·:Mdthe r had a temper and expres-sed her anger and l,ad""-b-e-en-abtrsive-·- --

53RD toward him through the years, causing ca: W to have trust JUDICIAL DISTRICT issues with Mother and further noting that or. Moyer had

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indicated to him that there were challenges with trust between cg and his mother and tjealing with Mother's anger and expi"'osiveness. or . chambers stated that the anger and explosiveness of Mother is emotionally stressful for C.. llllllllt Dr. chambers also testified that ·c is doing well because of the lessening or removal of the stress.given his current situation, in that being removed from the stress has helped to stabilize him emotionally and in other ways as well. Dr~ chambers did not interview c with Mother as he.felt that would have been a stressful situation for c and he wasn't seeing c in a.therapeutic setting. or. chambers' opinion is that·a reintegration occur between Mother and c , but in a very therapeutic· setting. or. chambers expressly stated that if c were forced to be with his mother without reunificati'on counseling; it would be a formula for disaster for c at this point. Dr. chambers referenced what Ct ? had told him about what his mother said to him, making him feel guilty for his preference for his fattier and criti.cizing him for that, demeaning him and expressing anger toward him. Dr. Chambers referred to Mother's personality being more animated, again referencing what c told him ·about anger outbursts and temper issues. or: chambers indicated that ·he did not find alienation because c was able to talk about positive memories of his ---•+--- . relationship with ·his mother 'and- was able .. to· taTkabout those-··-.-··--:--

53RO things. or. chambers indic~ted that when you have a child who JUDICIAL DISTRICT has been alienated, you rarely see any· positives· being related

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by the child. It is usually a black and white situation; one· parent's all good, one parent's all bad. Dr. chambers said that was not ~he case with conner, h~·recalled some positive memories not only of his mother but his interactions with his grandparents as well, which lent more credibility to his statements about what had· occur-red. or. chambers' recommendation is· that ·Father be granted full legal and physical. custody of C•IIIJ and·that there be reunification counseling ... with Mother. on cross examination, Dr. chambers conceded that it did not occur to him that· the· allegations made against Mother had no evidentiary basis and that the things that are being·said about her now.are bogus. or. chambers also conceded on cross examination that if the things that c says happened did not happen, then everything that cu 5 is saying and doing can be the result of his father coercing·him to do it; that if those things did.not happen, such a conclusion would only make sense. or. chambers. al so conceded that if c 's statements and expressed fee 1 i ngs are the product of his father's coercion, then such ci rcums'tance would be emotionally damaging as well. or. chambers ·further conceded that if all of the behaviors that ca has related to a 'number of professionals throughout the years are total fabrications then there are serious issues with alienation. However; or. chambers noted that he assessed for "the usual alienation +ndi cator-s and. they are not tfiere.-or-;--- . . ....

SJRD chambers further conceded that if c is sayi ng and acting fn JUOICIAl. DISTRICT a way that is devoid of reality in that his running away from

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his mother's house is simply a setup by his father and all of his manifestations are something that his father has put him up to, then that circumstance would be a bad situation for Ctll.., . . or. Chall}bers further conceded that if none of the-things that ca H says his mother was doing actually occurred, then that circumstance supports the hypothesis that the present cir~umstance is hi~ father's manipulation, contrive~ in .., coercf ori. or. chambers clearly found credible cg tJ''s statements that he remembers his mother yell_ing at him and screaming, particularly around homework issues, that she did not have patience, that if he asked.questions, after screaming at him, she would just do his homework and that the screaming and yelling esca'lated over time .and eventua'l ly led to the squeezing of the arms and such things and that t~ese issues had been going on for a long time. Dr. chambers·also concedes-that the anger and the~behavior i~sues that he attributes to Mother are all based upon what c S has told him and what or. chambers believes he has told others as well. or. chambers . further ,,

clarified that the major factor in his mind is Mother's reaction to ca ?s desires to live with Father and also her other temper and frustration tolerance-issues that Mother has had that has imp~cted the child. or. chambers further noted that if he assumed hypothetically that c••'s concerns about his mother were unreasonable or an overreaction, that would affect his op.inion about the effect of r~turn, ng w--h;-s-_mothe·r-~-t-hout-ci: . · · ---- _ 53Ro ·therapeutic setting, although the witness further stated that he JUDICIAL OIST~ICT does not think they are unreasonable. or. chamber also agreed

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with counsel for Mother that if c 's views are unreasonable and what he says about his mother are not true, that it would.be absolutely essential for ca 's short~term and long-term development for the cause of that view of his mother to be excised, to which Dr. chambers responded, "Of course." Dr. Martin Meyer had been appointed by the court to conduct a psychological svatuat+on of ca Q. Dr. Meyers testified that he is a licensed psychologist in the commonwealth of . . Pennsylvania. or. Meyer administered psychological testing and his conclusion was that CL CT had no ·serious psychological problems.· or. Meyer also stated that he could·not rule out that ca :SI •Jas coached. Dr. Meyer al so recommended that there be some kind of reunification process with counseling between C[ 3 and his mother. Dr. Meyer was not appointed to perform a custody evaluation but jus·t to determine the mental -s tate of .c I . counsel for both Mother and Father asked Dr. Meyer· a number of questions regarding his awareness of a number of specific.events which the court will not. here recount in detail· as the matters asked about did not form the basis of his opinion that c was not presently suffering from any psychological issue. MIIIIE11111 stlllll testified that she resides with Father and clllll in Greensburg. she is empl~yed as a nurse . '·

,,,,,., _ .anesthetist. she has been in a relationship with:Father for -approx+mate ly ten years· and they have residea together to·r

53RD approximately eight years. Prior to living in Greensburg, she JUDICIAL DISTRICT resided ·at 130 Fireside Drive located near Mother's home. she

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is presently attempting to sell that home and has listed it with a realtor. A normal 'day for her is to get up, get ready for work,

usually make lunch for Ctlllll but she leaves before c and Father leave. Father gets cs • off to school on most days. she generally is back home before c gets off the bus because she starts early .. When ca comes home he takes a break, gets a snack, and then gets to his homeworkright after that. She, Father and c have dinner.together normally and either she or Father will do the cooking. she is aware that ·c is involved i~ extracurricular activities inciuding Boy scouts and band. Her observations are that c is happy, relaxed and doing well in school and has made friends. cu :r· -refers .to her as "M• E ... ". She corroborates the testimony of Father that Father encourages c to go to his mother's house. she has attended c 's extracurricular activities, including band concerts. From her understanding, Mother has m~de no attempts to contact c since January, 2014. she does acknowledge that CQ has the security access code to her ... Fireside residence and she does not intend to change that code so that· c would not have access to ;.t. The witness acknowledged that she believes that Father does believe that Mother is a physical danger to C•&IIIII', Mr. John Moyer, c 's current therapist, testified as to -----1+---- ci rcumstances under which certa,npn·crto-graphs-appear-e.d-on--a- .. -·_ --·-

53RO website. that he maintained. It was the witness's testimony that JUOICIAl. OISTRICT 'he had no control over these postings. The website related to

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his hobby in photography. The website is an archive of his photography and some personal things as a way of getting himself known on the internet. ~e considers. himself a semi-professional photographer. He does not make regular postings to ~his website. The witness indicated that he has no control; of the pictures that come up randomly from the links on the website. c "testified at length, in chambers , havii:i~ .. been ex~ined at length by counsel and to a limited.extent by the Court. He is enrolled in the Hempfield Area school District, Wendover Middle school, in Greensburg. He has all A's except one B. He enjoys his classes and likes his teachers. He has ·close friends. ·He is in band, having p'l ayed the trumpet but now switching to tuba. He is in Boy scouts. He is in advanced honor classes. His favorite subject is ~istory. ~e likes his teachers better now· than his teachers in Neshannock and he understands better in Hempfield than he did in Neshannock. His teachers in Hempfield explain .things better than the ones in Neshannock. At Neshannock they would just flat out tell him the only reason they're teaching him is so they can pass the PSSA's. The teachers at Hempfield actually tell students that they want students to learn and they want students to be taught and µhderstand things. He stated that he is now staying in Greensburg with ·his

·---··- dad; that ·at his mother's house his mother would scream and yell ..... _..,__. at him wh~;-h~~; doing. his honieworkT. """iTne-a:sketl-he·r-a --···· . ........

53RO question or if he didn't understand it or couldn't do it fast JUDICIAL DISTRICT enough, she would start screaming and yelling at him and

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slamming her hands down on the table. and swear at him and call him "stupid". However, his dad actually tries to explain things to him so that he tan understand and finish the problem. He testified -that his mother would swear a lot, call him an idiot and say "God dammit, c , why the f-u-c-k can't you do th.e problem, things like that". He stated that that reaction made him feel sad and stared. on the other hand, his dad tries. to -· explain the problem to him so that .he can understand it. His best friend at Hempfield is a student that is also new-to Hempfield and they hang out a lot. He also referenced other friends he has ma9e at Hempfield. He has had concerts with the band, including a Christmas concert, a concert early in the year and a band festival. At open House, he wore the costume for the school mascot. His mother did not attend the open House or any of ~he band concerts. He has been active in Boy scouts and has been on three camp-outs so far, and is working toward assuming a 1

leadership position with Boy scouts. When he lived with his mother, he wanted to be in Boy scouts, which at the ti·me was actually cub scouts, but his mother would not let him be in cub scouts. He described .a number of activities that he engages in with his·father and Ms. s· He.also testified that he considers where he is now to be a safe ·environment. He feels ·much safer with his father and Ms. sI I than he did with his mother. He_ is afr'atd to be with his mother. He now feels less .stress with his dad, especially when trying to do .a ·pro6lem or . . 53RO .helping his dad with something than when he was with his mother. JUOICIAL DISTRICT

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In describing what it was like to be with his mother, he stated that he was afraid to be with her. There wa9 lots of· screaming and yelling. He stated that before .the custody trial in 2013, she had stopped being angry and was very nice and she· bought lots of things for him, but after the order came out from the custody trial. sh~ became very hostile and scary and ·threatening.·· she would say "I· am going . to get you.. I'm going . to get you and your dad. I am going to hurt your ·dad. I'm going to hurt you." ·c then testified that she has ·a voodoo . doll she has hanging in the kitchen which she has exp1ained to him very clearly as being.his dad, and she would take the doll and slam it in drawers and stab it and throw it on the floor and scream at it and re~ently hung his picture nex~ to it. Triggering events that would cause Mother to act this ~ay would' be if c would tell her that 'he wanted to live with his dad, or if any subject about his dad cam~ up, or if he would call his dad. c:•• testified that he would ca 11 his dad because he was afraid of his mother and kept telling her that he wanted to go to his house. He testified that he wanted to run away from his . . mother's house and his father kept trying to calm him down, saying ~·everything is .: going to be okay, just ca 1. m. down , everything is going to be okay, you can stay there, it's going to be fine, nothing is going to happen." c stated that he would call his dad all the time especially a lot of the times · ···----·-··· when hewoul d have'" a hard time -·s,eep,rrg-b·e-caus-e-he-wa;S-a:f-~a.i.d_.of._. _ ·-c·"

!S3RD what his mother would do while he was sleeping. sometimes he JUDICIAL DISTRICT would call his dad late at night because he couldn't sleep and·

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was afraid. Mother would . get angry at him when he was calling .

his dad, she would order him to get off the phone with his dad. on one occasion when he-asked if he could live with his dad as he did not w~nt to live with her anymore, she said "Finet call your dad." When he pulled out his phone to call Father, she attacked him for the phone and actually knocked the wind out of him and he fe 11 to the .. ground. He .was trying to get the .. phone. to her because she rushed at him·, but he couldn't get .it out of his hand fast enough and she knocked the wind out of him. when he was younger, she would wrap her whole hand around his arm and would squeeze it until he started to cry, .and then let go and ·1augh. when he is at his mother's he has panicky feelings, his heart starts to race and he feels scared. He feels like he needs to run but his legs get numb. He then calls his dad who tries to get him calmed down and usually it works. He kept thinking that his mother was going to hurt him. In reference to the event of November 7, 2013, he ran away because he was afraid of his mother because she had been screaming and yelling and slamming her hands down on ·the table. He was very scared·and could not get calmed down so he ran. He stated that he ran multiple times, at first to Fireside, but when his dad said he couldn't run to Fireside, he knew he couldn't stay with Mother so he ran to the police station. He :would tell the police that he couldn't stay with his Mother ~b.~~ause he .was afraid sfi'ewa's'"go1ng to-ffurtlf;m:-,hepoh~r-··--- :·-""

!l!RO tried to take him back to his mother's, but he said he wasn't JUDICIAL DISTRICT going to go back and he wasn't going_ to stay and on one occasion

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he was placed in the Krause shelter. Father picked him up from Krause the next day. '. After the October 1, 2013 custody order came out, he stayed with his mother until early Novemb~r when he began to run away. However, Mother had become more ·hostile .and getting more scary and ramping up, especially when he was talking to his dad to try to get himself calmed down. ·. She would try and get· him off the phone in multiple ways which caused him to become more panicked. c expla~ned that on November 8, 2013, he told the guidance counselor at Neshannock he wasn't going to go back to his mother's house after school because he was afraid that she would not take him to his dad's house like.she was supposed to. c also ~poke about an incident that occurred on November 13, 2013 where the police tried to return c to his mother's house and he bolted again and ran back to Fireside. Each time he ran to_ Fireside, Mother never came to get him. CII! g testified that his father always told him that he was supposed to stay.with his mother. c ~ould routinely ride the school bus to his mother's house but then he would get off the bus and walk to Fireside. Neither 'his mother nor his grandparents would ever greet him at the sch6ol bus. In November of 2012, the Sunday after Thanksgiving, he came home from school and told his mother that

-·· he -- _ wanted to live with his dad. Mother became angry and started --·--· . ··--- .... yelling at him and called he'rdaoto COrtiEf ..down-:-eu . I saw--hi.S---- . ·-··- 53~0 grandfather's car pulling into the driveway so he ran up to his JUDICIAL DISTfflCT room to hide and closed the door and pushed himself against the

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door. His grandfather came up the stairs, kicked open ·the door, and tackled him to the ground. He grandfather then sat on him, held his arms down and kept slamming his head off the ground probably three or four times. Mother came ·into the room and sat down to watch. cg;; stated he kept screaming for help. The next day they were at the grandfather's house for dinner, and the gra~dfather topk c .for . a. ride in the n~w ~eep. and they . ········· .... went to get ice cream. c aid not want to say "no" because he was afraid of what would happen if he refused. After that, Mother usually cooked dinner at her house and they usually do .not go to grandfather's house for dinner any more. The last conversation he had with his grandfather was one where he had run to the police station. His grandfather had come down to talk toihim and he sard "Why are you afr-af d of me?". conner said, "well, because you attacked me'." Grandfather said, "No, I didn't". Grandfather started getting really angry and yelling at him. Grandfather closed the conver-satdon by walking out of the room and saying "You're just a worthless piece of shit then."· c states that that is the last thing his grandfather has·ever said to him. . ca stated· that he would video the exchanges where he was dropped off at this mother's house for two·reasons. one, he feels much safer when he records because he does not think his mother will do anything bad if he's recording and also that if he doesn't· have .a recording for exac-rproof-, he-doe-s-n2-t-r-emember .. ··--······

ll3RO e~ery second of the event then people will think he's lying. He JUDICIAL CISTRICT figures that if he takes a recording then he can just play the

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recording in court if something happens. For proof purposes, he recorded each one of the events. c explained that his dad would ~rive him into the driveway, he would get o~t of the car, he would have his raccrdt ng on his phone, he would wa 1 k up to the door, knock on it, say that he's not staying and then leave. There were many occasions where his mother wasnt t there for him to actually say that .hs .. wasnot staying so .on those. cccaslons ... he . would just.get back in the car. c states that on these occasi ons she never did anything to encourage him to stay. on January 1, ·2014, he was scheduled to go back to his mother's house so nis dad drove him to.mother's and dropped him off. He walked away past her house and hi-smother and grandmother got into the car and foJlowed him. His grandmoth~r was driving: His mother was in th~ passenger seat. CM pr got back into the car. They drove back to the house and he got out of the car again and ran, and got back to the road leading to Fireside. His grandmother and mother followed again in the car. They said things like "The judge can't wait to hear this. You're going to go to Krause. You're never going to see your dad aqa+n . They' re going to put you fn foster .care , The judge can't wait to hear this." when he got back to Fireside, his -father told him to get back in the car. c got back into the car and his. grandmother star~ed driving again. He noticed -that his grandmother had not made the turn that would take them -back to· Mother's house. - He asl<e·a ·wnere tfiey were going- an1Jr1·i·s:-.-· -- .

53RD · mother sa id she didn't know. Mother then said they were goi.ng JUDICIAL DISTRICT ,to look at Christmas lights. c fel~ that hi~ mother was

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lying about where they were going so when they got to a stop light near a convenience store he unbuckled the seatbelt and tried t~ get out of the car. He 9ot the door a little bit opened when his mother grabbed his pants pocket and said "Go, go, go, he's getting away, run the 1 i ght, run the 1 i ght", at . which time his grandmother stepped on the gas while he was hanging halfway out of the vehicle, running through a red light, with his grandmot~er driving .. He tried to pull himself back· into the car ·but with the force of the slamming on th~ gas .he got. stuck and couldn't lift himself back into the. car. \ Halfway through. the intersection, ·his grandmother slammed on the breaks ·and he fell out of the car and he ran behind a. shed near·a local house and called his dad to come and get him. conner then spoke to videos that were played in chambers, showing M9ther's front door, him trying to open it but it was lo~ked. His dog, Rex, can be heard barking inside the house. ccr referred to Rex as Mom's ex-boyfriend's dog that she took and kept. c states that Rex is not his dog and is not his mother's dog either and that he is afraid of him. Rex would· stay on ·his bed when he slept but if he were to bump him in the middle of night or did something he didn t 1 like, he would kind of turn and soap at him and growl and snarl.. Next, a video was played where he is in his mother's home · on her landline phone, which is on speaker phone with his dad. ·· · ·He 1dent.ifies ffie video .. tal<lng place- on . ·oecerri6erio,·2ui-3··~----····· ··-··-·· . -· !13RD c 1773 explained that he had an iPhone thatwas given to him by JUOICIAL 01sTR1cT · M .. E-as a hand-me-down. Mother took the phone away from

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him and hid it. The phone he is using to record the video is his first cell phone that he had. He is recording with the cell phone and ta·l king with his father on the speaker phone because Mother said that if he wanted to talk with his dad on her phone that he would have to have the speaker on. December 16, 2013 was also· the day of the grandfather's b~rthday party. CIIIIIIIP pointed.out the voodoo doll in the video. c said that his mother had told him ·previously that it represented his dad and it wore scrubs like his dad does. c•• again stated that she would scream at that doll and stab it and slam in drawers and say "Why don't you die?". In describing the events of December 16, 2013, c•a... • stated the reason he was on the phone with his dad originally .was that he was doing a school project ·which was to name some of the family traditions that you do, so. he asked his dad about them. He had been running away but he went back that day. He went back because oad kept saying he needed to go back to his mother's house. Therefore, he gave in and went back to his. mother's house for that one day. It was his g_randfather's birthday, but he was not aware of that until several days later. After the video, he went downstairs and play~d videogames and people started arriving but he did not go upstairs .. He tried to avoid everyone and basically stayed downstairs the entire time. . ............... ~--- He went up one time for something to eat, but afterwards went back do~~·;tai-;:;-·to eit.: He d, asleep ove·rthat-n·i·gh·t-,.waS-..:.... , -···. 53RD panicked and could not sleep and did not fall asleep until JUOl<:IA l. DISTRICT probably after 1:30 a.m. · He was on the phone with his father

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until 1:00 a.m. on and off. He described his breathing as shallow, breathing really fast, his heart was racing and his throat was throbbing and his face got ··real hot. The next day he went back to fireside and did not return to his mother's house. He continued to go to Fireside from the bus. The next video is the one where he indicates that mom appeared at the door undressed. He describes tha~ he is holding the camera, and his head is further left of the camera. He can see around the door and could see most of the right side of her body. He could not see any clothes on her shoulder or anywhere around her neck or anything and saw the top part of her chest, ~he side of her chest and the in~ide of her knee and leg and there were no clothes on any parts of her body. He stated that he was completely startled when she answered the door naked. Cdt I I says to her that I'm coming to invite you to go to counselin~ with me. He gave her an exact date and time that she was to go to counseling with him. The date of this event is November 23, 2014 (obviously meaning 2013 given the timeframe of everrts). ... c417 .. stated that h1s mother was never willi~g to go to .counse'l inq with him, his dad 'encouraged him .to -reach out to Mother in other ways such as g~ing to lunch or just talk on the porch. He ~o~s describe the lunch with his grandmother as a ·pleasant event. At the end of the lunch he told his grandmother ~that if she Wanted ·tO have lunch agai nshe--CO-ulelsena-him-at·ext·:··· -:-··

S3FU> or call him and he give her his phone number. After that JUDICIAL OISTRICi·

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neither his mother nor his grandmother ever invited him to go to lunch again. c references a series o~ text messages on his cell phone where he invites her 'to engage in counseling with him. He states that he she has never responded .to any counseling requests nor showed up at any offered time for counseling. when she does respond she just states· '\r love you very much, c_." c stated that he does not think he is safe .at his .. mother's hous~ and he does feel safe at his father's house and his father does love htm. He does not think that.fri s mother loves him, she does not want him anymore, she just wants to hurt ."his father like she has said repeatedly. · He says that he feels this way because she has hurt him before, physically attacking -.him. He referenced the event of his grandfather who "slapped my head off the ground, the ~ime that she attacked me for- the phone, the time she almost got me killed trying to drag behind me behthd the car on January ·r, 2014, I don't . feel safe there because I don't think I am safe there." shortly after the custody trial in 2013, she walked .up behind·him while he was sitting on·the couch watching tv and said "I'm going to get you, I'm going to kill you." Earlier that day he had been talking to . . his dad on the phone and that made her angry. ·~ stared that if he were required to go back with his mother and the

····--·-·-·-· --·-------- ..... po1 ice station. -__ Fireside house was unavailable to him, he would run to the ~·•••• ·--· He -·--··-··· ,,, .. HO oH_N: wou'ld not stay. witn ..._ ner.. ·· ·--·--·: . -:--. ·-- · -- . lJ3RD conceded that he told his father that he wanted to JUDICIAi. DISTRICT "cut" his mother. He concedes that he actually did want to do

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that with a knife. He testified that he wanted to hurt her so that she would not hurt him anymore. He still feels that way, although he wouldn't do it~ Father told him· not to do that. co: 121 has told his father that his mother wants to kill him and his father does believe his mother wants to kill him. Cllllf believes that his father is afraid of his mother. He is afraid of his mother so ·he .can understand ~hy Father would also be. afraid of his mother. she has threatened to kill him also. she has·sa,a ~ in· front of him like yelling at him and saying "why don't you die?, I'm going to kill you with the voodoo doll, referencing Mother's habit of takiog the doll, stabbing it, s·cre~ming at it, yelling at it~ cursi.ng at it and banging it in the drawer. .He· saw her do this ·the voodoo doll multiple times . .- she would stab it with kitchen knives. c also stated that if his mother had come to Fireside to get him, he would not have left with her. He was at his mother's house as recently as two . . weeks before his testimony and she was not there, but if she had been there he would not have stayed. A month or two ago he was at her door and when she answered the door he told her he was not staying · and that if she had been out on her porch waiting for him·he would not have stayed although he would have talked to her. If he would have talked to her, he would have talk~d-to her probably about coming to counseling. When asked to name one good thing_ about hi s mother, c & P s'tated , "She buys me stuff." ---·-·--·-- However, C . states that the flyi ng 1 ess-6nsWe1'1:j·u-st--an:-··..:._-.-· ··-·· ·

53RD attempt to bribe him. His grades went down with the more time JUDICIAL DISTRICT that he spent with Mother that any good grades he got was

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because of his dad; that mom wasn't doing anything that was good .for him, helpful in any way, it was all his· dad; and the only good thing was that sne was trying bribe him for custody. His grandmother was not as much interested in bri~ing him but he feels that his grandmother is abused by his grandfather and his mother. They talk about.how stupid she is and they make fun of her at the dinner table. He feels that his grandm~ther is stuck in an abusive situation just like he was. He dog Rex just got meaner as he g~t older .. He also stated that his mother talked about being related somehow to Judge Piccione·and that she owns Judge Piccione. c again recalled ·the incident at the

a "wor th 1 ess piece of shit" • officers heard h1m say that. c- ·police station .in 2013 when his grandfather told him.that be 1 i eves the po 1 ice However, cg 5 then stated that he·was

they would have heard. him but they walked out of the room and left hitn in the room alone with his grandfather. his father abou~ what his grandfath~r had said. c- told

ouri hg examination by Mother's counsel , c•• was shown the voodoo doll. Ctlllf acknowledged Exhi~it HT-7 as being th~ voodoo doll. when asked to identify the stab marks and all th~ damage that was donei c ..... 's. response was_ that this could be a new one. c B I cou 1 d not identify any damage to the voodoo doll. Ais only explanation was that this could be a new one. cU was then shown a pack of keys and i den ti fi ed ; t as being -··· . ---,.--- . ·· · · the keychai n with 'ht s picture· on·-; t. ·-:--The keycfia11fwfttrh·ts-.--. - ..

53RD picture on it was what he was referring to when he said the JUDICIAL OISTRICi picture.was next to the voodoo doll. The voodoo doll was

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hanging on a cabinet knob and.the keychain with his picture on it was hanging on the next cabinet knob. The court attempted to examine. (11111' relative.to positive experiences.that he may have had with his mother. Ctlllllf referenced the plane lessons, and a trip to North or south Carolina where they wen~ to a museum and a speedway. With reference to the speedway, his mother drove a racecar. However, ca F qualifies the experience by saying that when she was with him it wasn't like she was with him 100% of the time. It was like 80% her buying him stuff and treating him ok and then she would come up and be angry and attack him and bad things would happen. when the court redirected c..... to flying lessons, the court ·asked c ... if Mother encouraged htm to take the flying less.ens, which was something that c- liked. c... 's response . was that he ~id not like the lesson part of flying. She encouraged the flying lessons bu~ he really did not like the lesson par~ of it. He just wanted to fly the plane around and he didn't study for the lessons like he was supposed to. He acknowledged -that he started playing the trumpet when he was at Neshannock and when asked if she encouraged him with the trumpet lessons, he responded, "No." He acknowledged that she did attend the concerts at Neshannock but she did not encqurage him to practice on his own. In fact, she discouraged him from

. practicing. -·-·-··-- .. .... , He stated that when he ---- , would get the trumpet out, ' she would say that she d+d not want him playing-the trump~ . .

!S3RD there, 'that she did not' want to hear that. when asked· about JUOICfAt.. DISTRICT athletic activities, he stated Mother would come soccer games

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when he was in second or third grade, but she did not come to basketball practices and they did not have actual games as it was intermural basketball training. when asked if there were any other . things he could remember that he would consider in a positiv~ way, he referenced going to the pool, but that his mom really didn't want to do a lot of stuff with him. when asked if he would h~ve friends over the house he indicated "sometimes" but as his friends got older they said they ·couldn't come over because their parents did not·want them around hi~ mother because they said their- parents said that his mom was scary. The maternal grandmother, Delores Dicola, was recalled and ·testified that during lunch break she went to Mother's home and ·retrieved the voodoo doll. It was on the kitchen cabinet doorknob. In order to remove. i.t shehad to get a screw driver .and ho'ld the screw and twist it off. The voodoo doll has hung on that doorknob since 2005. she has never before heard anything about it being stabbed or smashed or damaged in any way. she has never ·heard or described or heard anybody reference the voodoo dqll or the outfit as being scrubs or being ·representative of Father. . Th4 maternal grandfather, John.Dicola, Jr., also retook the stand. He recalled two times that he was at the Neshannock Township Police station. on one occasion he was at the muni ci pa 1 complex and happened to see C• p walking east on shenanqo Road. · He wa 1 ked into the po 1 tce . . .stat,orrand-ca·l-1-ed-f-or·-· · -····- s,Ro the pol fee .. Mr. Dicola then walked over and asked Ctllllll what JUDICIAL DISTRICT

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he was doing. c said he was calling the police. Mr. Dicola then walked away from conner at that time. 1:• The next time he saw c at the police station was when he had run away and the police.had retrieved him and brought him to the police station. Mr. oicola went to the police station and told an officer that he would be next door at the fire station· if he was needed. A police officer asked him to come over and he did. The police were attempting to talk to CIIIII . and have him to go back with his mother, but he refused. There were two police officers in the police station. The police were attempting to call Father but they had not made contact with him. The police had said to Cllllll"If you're not gping with your mom, we can't get your father, so we'll have to take you to a shelter." Mr. Dicola left after that and when asked if he had called c ... a "worthless piece of shit" he said, "Absolutely not" and has never said anything like that to him. The police officers were present at the police station during the entire time that he was with c4IIII. H~Tllll!I retook the stand ·and explained that the voodoo doll is a keychain that she has had for ten or eleven years, along with other keychains. The vo9doo doll keychajn has been hanging on the doorknob in the kitchen until the day of her tE:!sti many. During the entire course of l i ti gati on she had never heard before of any allegation that she took the voodoo doll : down and stabbed ; t with a kitchen knife .or s-,ammea-rr·-in·-·a-·· " . .. _, · ·-::· . ,

53RC drawer. The voodoo doll was on the same identical key chain JUDICIAi.. DISTRICT that's been hanging on her cabinet door for years. The first

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time that she had ever heard that the keychain voodoo doll was going to be i ntroduced into evidence was today at noon. she has never stabbed it with a knife dr anything no~ has she ever .... slammed in in a cabinet drawer. You can't even get if off of the doorknob as she had unscrewed the knobs to put it on. You cannot get it off and on the doorknob easily. she has never said anything about the voodoo.doll keychain in reference to Kllllor Ctllll· she has never referenced the fact that the outfit on the voodoo doll resembles scrubs that a physician such as Father would wear. she ha~ neve~ told ·c.._., that he was stupf d, has never ~ attacked him, has never said .that she wished he were dead nor has she ever berated him or demeaned him dr . l

criticized him or threatened him in any way. when CIIII was in her home he would come home.from school and sit at the kitchen

c- ·counter and do his homework. s topped sleeping at her house. relationship with Rex. c- Rex would sleep on his bed until

c4lllllllnever complained about Rex always had a good

snapping at him or snarling at him or attacking him or doing anything like that. Mother has never heard before that the . . flying lessons were an attempt to bribe him or that she in any way discouraged him from learnin.g to play the trumpet. While ct11111was with her he never wanted to be in scouts and never mentioned being in Scouts. ··-------·-·-··-·- pot be in- scouts. A's·· when c- Mother never told him that he could was with her at Neshannock he had . and never had a prob 1 em in s choo 1 . He had f ri ends;-ne· ·was-···--·-······ -·--···

53RO in ac~ivities. In reference to the video tape that purportedly JUDICIAL DISTRICT showed her answering the door· naked, she denied being naked and

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introduced as part of her case a nightgown brought into the courtroom that was yellow, orange and white stripes and with green stripes, sleeveless and with. thin straps which was what she was.wearing on the Mother has never told day c- in question.

would die and has never said anything derogatory about Father in that she wi-shed his father

ctllll's presence. Mother testified that in November of .2013 she asked Cllllllwhere he was staying because he was supposed to be staying with her. cllll stated that he was stayi~g at Miii Ellll's house. Mother said t~ cllllt that he had told her this summer that he and his dad had moved all of his ~elongings out of Ms. sllll's house, so where are you sleeping? Ctlll respond~d that M. E- sleeps in her bed and "I sleep i~ my dad's old bed." :Sleep?" and c- Mother then said, "Wel1, where does your dad said, occurred the last time she saw c~other "In the same bed with me." · That than December 16, 2013. ctllllrecorded that conversation. Mother testified that if she were in counseling with c~ she would want to communicate to clllll that she loves him very much. she was not aware that ctlllll says that he told his father a number of times that he wanted to "cut you". Mother testified that the only harm that she knew of was·what Father reported to or. Strayer, which was that ctllllllllwanted to blow up the school and stab her .

. . ----¥·--·· · . -·-· · ·---- . -N . OO-•O,OO_O_OO>ooO_.

CONSIDERATION OF BEST _

INTEREST FACTORS.·.--- ,. ,,,,, ··-···

'53RO rn a custody case the primary concern is the best interests JUDICIAL DISTRICY of the child .. As stated in saiotz v. Rinker, 902 A.2d 509, 512

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(Pa.super. 2006), "The best-interests standard, decided on a case by case basis, considers all factors that legitimately may have an effect upon the child's physical, intellectual, moral and spiritual well-being." Cf. Arnold v. Arnold, 847 A.2d 674, 677 (Pa~super. 2004). The court is required to consider the bests interest factors that are set forth in 23 Pa.c.S.A. §5328(a)(l-16). The court notes that these factors were addressed in the proceedings before·Judge Piccione which culminated.in the October 1. 2013 custody order. Although this proceeding constitutes competing petitions to modffy that ~ustody'order, this Court must conduct an independent inquiry :into the statutory fact~rs enumerated in §5328 and cannot simply incorporate by reference the findings from the earlier decision. -see M,E.V, v. F.P.w., 100 A.3d 670 (Pa.super. 2014). section · 532&(a) spect f'lca'lIy provides as follows: (a). Factors.- In ordering any form of custody, the court shall determine the best interests of the· child by considerin~ all relevant factors, giving weighted consideration to those factors which effect the safety of the child, including the following: .... (1) Which gart~ is more likely ~o encourage and permit frequent and continu1na contact between the c6ild and other pa_ty?

Mother was able to exercise ~ustody of cllll from February 2013 unti 1 ·, ate November .of 2013, as c ... began refusing to go · · · · . · · · -- . 53RO JUDICIAL · --to--Mo-the· . ,-:,·:· . .•. · ·. r-t,s--··heme---s . . 20.13 was i ss~·ed. Father testified must see his mother and comply with the court's order. that he te 11 s C- ho r.tl-Y---af.ter. . -.th.e.-.cus:to.dy_o_r:.de.c_Qf. __ .Q5;;_tobe.r _ l r... - that he However, __ . ...

DISTRICi the court finds that Father's attempts to enforce compliance are ~ENCi!'. COUNTY NNSYl.V ... NIA

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rudimentary and not sincere, and that in fact Father has alienated Cllllt against Mother in order to avoid the results set for~h in the October 1, 2013 custody order. The reasoning,. behind the court's conclusion is set forth in more detail in the discussion section of this Opinion. There is no evidence that Mother has interfered with the

[nter fer-ed with c-' custody time of Father, and to the extent that she has s efforts to t

in custody of. Mother, it has. only been to address excessive e lephone his father while

telephone communica~ion between clllll and Father as to interfere with Mother's custody time with c~.

(2)

c- and Father contend that Mother and the maternal grandfather are physically abusive to clllll, The court finds that· the evidence supporting this claim is not credible. cllll testified that he is afraid of Mother and afraid that she and

The co:u rt finds that c- the m~ternal grandfather will hurt him and have done so in the past. is making such statements in an. effor.t to control th~ outcome of this case as he is aligned with Father and alienated from M9ther, as will be explained . further infra . . _ . . _. :·:··_ ........ __ The cour-t concl u-des . °ihat'·"·tfier·e-· is no credf61 e evicl'erfte""l:hat

!53RO either party is physically abusive or verbally abusive towards JUDICIAL OISTRICT c4IIIIII. However, to the extent that Father's· efforts to

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ali'enate cl 3 from Mother may be considered abusive, the court is concerned that c has been psychologically harmed because of the pattern of alienation. The court sp~~ifically 1inds that the testimony of Mother and maternal grandfather relative to the incident of November 25, 2012 is credible, and no abuse occurred. The court here finds, as previous courts have found, that on November 25, 2012, cl Jihad an extensive telephone conversation with Father while in custody of Mother at Mother's residence. After that conversation ended, ctlllll acted in a manner whereby he was out of control. Mother attempted to calm clllll down, but .ctlllll, -without any re~son to do so, began to scream for help stating -~hat Mother was going to hurt him. The maternal grandfather .arrived to render assistance. Upon arrival, the maternal grandfather found c~barricaded inside his bedroom. Maternal grandfather was required to push the door open to enter. ·c~ threw himself ?n the floor and contiriued'to engage in a tantrum. Maternal grandfather and Mother restrained Ctlllllby holding his ar.ms and legs until he calmed down. Afterwards ct1111111was fine, had something to eat afterwards, and the next day interacted with the maternal grandfather as though nothing.had occyrred, spending time with him.

Both Mother and Father have appropriateiy cared for Cllllf 53RD JUDICIAL while exercising physical custody relative to preparing of DISiRICT meals, gettjng conner to school, seeing to his hygiene and dress '111ENCII: COUNTY ,NNSYI.VANIA

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and otherwise each providing and being able to provide suitable parental care of c~. Aside from the issue of c11119's alienation from and expressed fear of ~other, that is without foundation, Mother and Father are each able to render appropriate parental care.

(4)

Because of the protracted 1 i ti gati ~n between the part_i es, clllllll lacks stability and continuity-in all aspects of his life. He previously attended school in Neshannock Township. Howeve'r, commenci ng with. the 2014-15 schoo l year, rarher , who did not have primary physical cus~ody nor any legal. custody pµrsuant to the court 9r.der, enrolled_ cllllf in the Hempfield school District in westm~reland county. This enrollment is ·-directly in contravention. of the October 1, 2013, court order and wa~ done without court approval. Thus, ct1111is faced with having to be returned to the Neshannock school District if the custody order does not change. clearly his family life is undermined in that the result of the extensive litigation is that he has not had contact with his mother and mother'·s family since oecember, 2013. c1111111t's sense of stability is further disrupted by the fact that Mother and Father have a complete inability to communi~ate with each oth~r in a civil manner. . . .......... . . . . - -Although-E----i··S·· . de:i.ng we.1-L.-i.n hf.s, cu.r..r. ent v e.o.r.Qllm~D.:t; i..!t ..~_l!_~ - . \ . Hempfield school District, Ctlll is a~ intelligent young man 53RC JUDICIAL and will do well in any educational environment. The DISTRICT instability results ·from the manner of interaction between his 1RENCE COUNTY ENNSYLVII.NIA

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parents. The court further finds that the pattern of conduct whereby Father drives c I from Greensburg, Westmoreland county to Neshannock Township, Lawrence county each week so that conner may exit his father's car, knock on Mother's door and tell her he is not staying, and then proceed to the residence of Father's _si gni fi cant other, videotaping the entire proceeding, even beginning the videotaping in Father's car without objection from Father, i.s not indicative of stability in his family' life.

(5) The availa_bility of extended family.· The maternal grandparents live near the residence of Mother - and have the desire and the ability to assist Mother in caring for ct11111and are available on a daily basis. grandparents express great love for c .. s alienation C- The maternal and are devastated by from Mother and from maternal Q.randfather. c .. does express a fondness for maternal grandmother and did invite her to have lunch with him, which was successfully accomplished. It is noteworthy, however, that in expressing his fondness for maternal grandmother, cllllll also expresses, without foundation,. that she is abused. ·Father does not have extended family that lives in proximity to nis residence.

(6) The child's sibling relationships. . This factor is not. applicable as ctlllllf is an only child, -~nd nei the r p~~-;·~·t· · h~;·· · ·;·~-y-·-_;the_r ch i l d ren-:··-·-·-· ,- _, __ .: ·-- -·-- SlRD JUDICIAi. OISTRIC1"

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(7) referen e of t e child bas d on the maturity an Judgment. c is fourteen.ye!rs of age, clearly possessing a high degree of intelligence, and displays a high level of maturity for his age. c S does not only demons tr-ate preference to live with his father, he di~plays a total disdain for Mother. He states that he is fe.arful that his mother and/or maternal grandfather will physically harm him. He testified that his mother.would threaten him, dig her fingernails into his arm, yell at him and otherwise physically abu~e him. Cllllf 'himself .has stated that he wanted to kill his mother and blow up his school. ctlllllstates that Moth~r and maternal grandfather attacked him on November 25, 2012 and then on ·January 1, 2014, Mother attempted to harm him in the incident when clllll exited 'the·car driven by maternal grandmother with Mother seated in the back seat with cllllJ. The court specifically finds that cllll's perception of the· events of November 25, 2012 and January 1, 2014 are completely unfounded and that there is absolutely no basis for cllll to believe that his mother will harm him in any way. In.answering each question put to him by counsel. in the court, ctlllllll answered each question in such a way ·as to place Mother in the worst light possible. Cllllltould ~ot identify a single positive memory of any event involving his mother. when -~~ked-·-abo·ut~·-·fly-i-ng---le-s-sons. :that--be __to~ok.....u_p__!,J_r:tti l 2011.J downplayed Mother's support of the lessons. when he described f- - - . 53RO JUDICIAL. their va~ation taken to south Carolina, he indicated his mother DISTRICT paid little attention to him. rRENCE COUN,-Y ;;NNSYI.VANIA

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Although clJllllllllt states that he is fearful of his mother, a video introduced into evidence by Father shows the contrary. Father depicts c .... on the telephone with his father and Mother telling him to get off the phone because of the length of time that he has been on the phone. It is clear in the video and the ·statements made by him and in the manner of expression that cg 2 is clearly goading his mother. He is videotaping her being upset with him being on the phone and the court finds that this was in effort by clll!llll*to get Mother to do something physical that could be used against her in court. His efforts were unsuccessful. Mother's reaction to his obstinance was .understandable under the circumstances. one cannot ·view this videotape and conclude that Cllllllllhas any fear whatsoever of his mother. ~estified that his mother would take a voodoo doll hanging above the kitch~n sink, and ~tab the voodoo doll with a knife and smash in the drawer as though she were displaying such aggression against Father. The voodoo doll was stated by him to appear to be wearing scrubs and his father is a physician, would therefore represent Father. when shown the voodoo doll on cross ·examination, ctlllllcould not exp~ain why the voodoo doll was in excellent condition, other than showing age, containe9 no evidence of any damage to it and.clearly no knife marks. His pnly explanation was that perhaps the doll had been substituted . ~;t~-~·~·;, g_r.an.dmother. . ,_u,._, • ,, • ., ••__ ,.,,._,._, •

Testimony from was .. that the dol'T""at'·····a-- ·

53P!D recess was removed from its place above the kitchen sink by JUCICIAJ.. OISTRICT

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having to unscrew the handle on the cabinet door at it had never been removed prior to having been put there originally. c II testified that on one occasion his mother answered .the door. totally naked. Mother testified that the occasion · c is referring to was an occasi'on where she answered the door in a nightgown and the nightgown was shown to the court, with the court 9bserving that there was nothing improper about it. Early in the trial, Father claimed to have a video of this occurrence. counsel for Mother demanded the video. It has been· produced and entered·into evidence, and it does not show Mother without:any clothes. All that the video shows is Mother's arm ·and does not support c.... 's testimony. In testifying as to living with Father, Ctllldescribes everything in a positive manner. He enjoys living with his father, enjoys the school he presently attends, describes the school that he presently attends ~s being a much better school than the school in Neshannock Township, describes Father as good ~ . at helping him with homework where Mother was not, gets along well with Father's significant other and enjoys the time that he spends with Father. In view of the foregoing, the court finds that ·Ctllllr's preference is not well-reasoned; that there is no basis for his disdain ·towards his mother and that his testimony relative to the conduct of Mother·and his fear of her is not credible. · ·~-'·s · ·atti tud~ ·t~~ards his mother ·;:s ·-the _. . u'nfortunatEf'"N~-strlt . - · -. ·

!13RO of the fact that the parties have been in constant litigation JUDICIAL DISTRICT

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over him during most of his life and that Father has succeeded in alienating him against Mother. Mother's position is that Father has clearly turned~ against her. The court finds that there is merit to Mother's contention. c 's total refusal to be with Mother did not come about untri 1 _shortly after· the october- 1, 2013 custody order that gave· primary custody to Mother. Until then~ c~ did spend an equal amount of time with Father and Mother, changing custody on a weekly basis, and had done so since at least February, 2012. Therefore, it appears that c 's behavior was simply a way of ·-avoidi.ng compliance with the October 1, 2013 court order and that c is behaving the way that Father wants him to jn order .to retain physical custody. Father and c.....-both state that Father tells c..., that he must comply with the court order and he must go to Mother and that each week at each appointed time of custody excha~ge Father drops cu off at Mother's house but c simply won't go. Cl£ will either knock on the door and tell his mother he is not staying or will simply walk through the yard and end up at the Fireside residence of Father's significant other. Father wi 11 pi ck c I $ up at Fireside, email Mother as to where c•• is and then return·with c to Greensburg. However, the .. ~ourt fi.nds that Father is only paying lip service to the · ~-~-~~~~j"~.= order- know·i·~·g··· ·fu1·,·· we"fi·· · that . . c. . is not going·· to· srav:': ""'''' '''•"•-•~•••••••• • O• ,, .. ,.,

. ·., '

531tO and that Father does not expect him to stay. There is no JUOlCIAL DISTRICT evidence whatsoever of Father doing anything to require

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to stay. Father drops c"IIII off in the driveway of Mother's house but does not· get out himself to.take C ..... to the door. These exchanges are ~enerally videotaped.by c&illlll an~ there is no indication in any videotape of any effort by Father to make cs :ar stay. In fact, the video tape introduced into evidence by Father shows- c • commencing the videotaping as the car +n which he is riding with Father is pulling into the driveway. Father can obvious·ly see that c- is vtdeotaptnq and thereis no effort to discourage or forbid him from such conduct. The court finds that ·thi"s is evidence of the Fat~er encouraging and condoning clllllll's behavior. Each time an incident occurred that involved any type of physical contact, Father would immediately file a PFA on behalf of conner when in reality the occurrences became physical only because of the need to-restrain clllllto keep him from hurting himself. · Each trime conner would refuse to stay at his mother's he would run over to the Fireside residence. Entry into the Fireside residence was gained with a code which Cllllt knew. No effort has ever been made to change t~e code to prevent c~ from entering that residence. No effort has been made to forbid ctllllfrom entering· that residence~ The Fireside residence has been made available to conner by Father and Father's s·ignificant other as a place of refuge to avoid having to stay with Mother. it is c~ear·to the court that if ctlllllwere to be left in the .· .. -·- · phys+ca] .. custody of Father,-- there, is no reasonab.1e."-Ti'ke11ho'od_.......~··:· that ct111could ever have any type of meaningful relationship 53RD JUDICIAL DISTRICT with Mother as that would.be contrary to Father's wishes and

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expectations and that under current circumstances, c111111will do whatever he has to do to meet those wishes and expectations. In July of 2014, Judge Thomas M. Piccione ordered an updated custody evaluation be prepared by Bruce chambers, Ph.D. Dr. chambers conduc~ed the evaluation, prepared a report and testified at the trial in this case. or. Chambers recommended that Father be granted full legal and physical custody of c• s. Dr. chambers concluded that there was no evidence to suggest active alienation on the part of one parent or· the other. Dr. chambers opi~ed that Cl T's preference to reside with his father and to avoid custody with his mother is due to personality issues in Mother whereby she has manifested her anger toward Cfll///l· in a variety of ways. or. chambers stated that Mother appears to have issues with anger management referencing Cllllt's statements about her yelling and screaming. or. chambers believed that Cllllf was credible in his interviews with him and. in his prior interviews with or .. Darnell. or. chambers concluded that in Mother's household and with the interaction of Mother's parents, there is a lot of animation and yetling in day-to-day communications. Chambers also accepts as ' credible c s statements that his grandfather could go to jail if he talked about what happened; that .no one would believe c f and that he would be sent to a mental hospital. chambers 'a'l so noted in his interview wi~h CQI r that c commented •'that' indst nights when they had dinner- t'ogethe'r ··w~'t'fi" ::fr;e·- .

53RD grandparents they were nasty, mean, and rude to each other. or. JUDICIAL DISTRICT chambers gives Cb I credence in these statements noting that

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this type of activity would be stressful to CIIIII'· Repeatedly, throughout his report and his testimony, chambers indicates that cs a is credible and what he states about Mother and her explosiveness, display of anger, and Mother's behavioral issues .that have caused c to fear his mother. or. -Chambers also notes that in concluding that there is not parental alienation being engaged in by Father, in true cases of·parental alienation the·resulting·behavior and attitude toward the alienated pa~ent tends to be much more polarized, with children being unable to talk about little positive if anything about the alienated parent. Dr. chambers noted that ·this was not the case in his evaluation, chambers noting that Cl :0 did describe some positive moments he had with his mother in the past. or. chambers conceded in his testimony that his conclusions are based upon the fact that he finds c•• to be credible and that he has been consistent in his statements when his present statements are compared with statements he has made in prior evaluations. He also notes that Mother. was pessimistic tha~ any positive outcome could come from the evaluation, that she was ·less than fu'l'ly cooperative, with or. chambers noting that Mother's contempt for the process was evidenced in her· incomplete pre-evaluation questionnaires .. chambers noted that ~he was sparse in her information in those questionnaires in regard rovher-se l f , ~$5-Ues With Fatfi'er;·· ·and·· c : . · -· ·-- . ~·- - . ·-··- · · ·---· -. The court here concludes that Dr. chambers' conclusions are 531'!0 JUDICIAL DISTRICT not supported by the record for two distinct reasons. First of

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all, the court does not find CCIIIIIIIF• to be credible in his statements relative to Mother's conduct. The Court has had the benefit of a tri'al whereby c••' s statements relative to Mother's conduct has been subject to the test of cross- examination and rebuttal by other evidence.· In th1s record, there is no indication of Mother being explosive or expressing. anger towards c At best ·all that one can say is that she is· understandably· frustrated by a process whe'reby she has had by court order primary custody since October 1, 2013 ye~ has not had c since December, 2013. The court has had the opportunity to view the demeanor of Mother as well as the ·maternal grandparents and they all appear to be individuals who· exercise good common sense, love c very much, are dealing with a difficult emotional situation as best as anyone could in these·circumstances --and are truly heartbroken over the course this case has taken. -As above indicated, any claim that c:••• fears his mother is clearly negated by the very videos that were introduced by Father where cg S can be seen being aggressive in his desire to anger his mother and in his calculating conduct in videotaping every possible exchange he can, with the purpose of having evidence in court to use against his mother, by his -own admission. unfortunately, or. chambers accepted a view of Mother from his limited ability to analyze the evidence, which ·js directly contrary to-the evidence that the court was able to . · -·····- ···~-~~·,· ~~~-~·· · i··~·· ··;·· ·t·~·i-~1··:--;etti ~g. - Th.e court -·finds ·that the _ : _ . · ·· ·· ·-··

53RD underlying factual bases for Dr. Chambers' opinion have been JUDICIAi. DISTRICT disproven or are unsupported by the record.

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secondly, or. chambers in concluding that there was no .indication of parental alienation by Father, bases his conclusion, at least in part, by his determination that c111111t did have positive memories of times with his mother and in true parental alienation cases, the situation is much more polarized with the alienated child having little or no positive statements to make.a~out the parent being alienated. Here, when one views c lf's testimony, c :S has nothing positive to say about his mother and the court cannot conceive of how c 's attitude towards· his mother could be any more polarized. He displays nothing but disdain for her. He entered every question in a · manner calculated to place Mother in the worst light possible. when the. court questioned cg 9 about positive memories with Mother,·c..1111•would put a·negative spin on any .Possible memory that could be considered to be a positive. on cross examination,. or. chamber's conceded that if the .events that c•• described never happened then the basis for his opinion would be incorrect. The Court concludes t~at such is the situation in that cg has consistently attributed to Mother and the maternal grandparents conduct that has in fact not occurred and that a finding of parental alienation is supported by Dr. chambers own observation that in true parenta'l alienation cases the effected child has little or nothing positive to say about the alienated parent and the child's . -- - .. ) . . . ··-"""" --·- _ - __ """'"---·······--·--- ..--·----·---··-··· --· .. ---·-- _, , , . perception of the a 1 i enated parent . is po 1 arfzea:-------·----·-~-·-· · _,_ · A psychological evaluation was done of c 9 at the 53RD JUDICIAL. OISTRICT request of the court by Martin Myer, Ph.D., psychologist. In

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his conclusion, or. Myer notes that the evaluation focused solely on the mental status of cg g and not the psychological or emotional status of the parents. or. Myer concluded that the current findings do not suggest significant psychological damage to c t W; that he is.fairly resilient and even flourishing in the current situation. However, or. Myer notes that Mother has not had a chance·to parent largely through the willful behavior of c or. Myer also recommends that counseling occur between cg; and his mother. or. Myer even comments.that both Mother and Father should seek their.own counseling. or. Myer does not address the.issue of.parental alienation other than to ;i"ndicate that he does not rule it out. It is also noteworthy that Dr. chambers referr.ed to tQe report of Dr. Darnell as support for or. chambers.' own .con cl usi ons , .i ndi cati ng that Dr. Darne 11 's concl usi ans paralleled his own. However,.Judge Piccione noted in his opinion ·of August 1, 2013, that when Dr. Darnell, in his testimony, was presented with hypothetical questions regarding behaviors displayed by Clit over the course of the past year, or. · oarne 11 testified that those behaviors we re consistent with behaviors exhibited by a child suff~ring from parental ·alienation. see Trial court opinion, October 1, 2013, page 24, 25. a .. - -- .

53RO 'UDICIAL Both·parents love CB!.7 and wish to see c1111 flourish in )!STRICT every aspect of his life. Unfortunately, . they have a total 1!:NCE COUNTY NS VI.VANIA

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inability to co-parent and have exposed Cllllllf to over a decade of litigati"on that has clearly affected him emotionally. c R's negative and i rrati ona 1 attitude toward his mother demonstrates that his emotional needs are not being met by Father. contrary to court order, c111111thas remaine~ in ·the actual physical custody of Father without legal basis, and this has a11owed the situati"on to get worse in regard to c 's feelings toward Mother. Cg I's testimony and that of his Father par~llel each other, both being quick to lay blame·on Mother who has been put tn an almost impossible situation, including.her being criticized for not following Fath~r's lead ·on various issues regarding c when Father is clearly acting in corrtr'aventrl on of the cus.tody order. The court further notes that the di scussi.on contained relative to factor· (8) applies also to relative to the discussion relative to the within factor.

Both parents have the ability to meet the daily physical, developmental, educational ~nd any special needs of c :r. Both maintain more than ad~quate households, have the ability to clothe and feed CUJ g and support him in his educational . .p-ro·gre:s-s-···and···-suppor't-·· h" · ·1·m· · 1·n' ····extr.acu.r.r.-1.cu . 1 ar._.act:1.v..1.. . .t.1.es . ·-···. However, Ct1£••:, s emotional needs are not being met by Father !!3RO JUDICIAL while in his custody as allowing to remain in his custody has DISTRICT escalated Clllllf's negative perception of his mother. IIRl!:NCIC COUNTY ll'.NNSYI..VANIA

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(11) Ihe proximi·tx of the residences of the parties. During the time that Mother and Father exercised shared physical custody on a week~to-week basis, the parties lived in the same neighborhood. However, Father has relocated to Greensburg, Westmoreland county, which ts approximately an hour and a half drive between the residences of Mother and Father. This distance requires a determination that one party must have primary physical custody, at least during the school year.

(12) Each art's availabi i abilit to make appropriate There is no indication in this case that childcare is an issue. c•• is fourteen years of age and attends school regularly, both parents are.employed, Father as a professor at .'LECOM located in Greensburg, Pennsylvania and Mother being ·employed in the medical field. The parties had enjoyed shared physical custody with .childcare never having been an issue. Mother has the availability of her parents to assist her in· attending to c••111111• if necessary and Father has his significant oth~r, Ms. $I I ?, to assist him.

(13) The level of conflict between the parties and the willingness ana abi1fty of the parties to cooperate with one another. A party's effort to protect the child from abuse by another ··· · -party··ts .. not -~v-i-denGe o:f unwi.lli.ngness or . ..i..n.ab.i.l.tt.Y ~9 f.'?9.P.~t.~t~ · with that party. 53RD JUDICIAL Mother and Father are unable to cooperate with one ·another. DISTRICT The level of conflict is apparent from a history of constant 11!:NCi: COUNTY 'iN5YLVANIA

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litigati~n between the parties that exceeds ten years. Mother and Father are unable to communicate with each other and what communication that has existed has occurred through emails or text messages. It is necessary for one parent to be awarded sole legal custody because of the inability'.to agree on any

major decision to be made on C11111t's behalf.·

(14) The histor¥ of drug abuse or alcohol abuse of a party or · member or a part¥'S household. N~ither party has any history of drug or alcohol abuse.

(15) The mental and oh¥sical conditions of the parties

of caring for · . hea] th disorder. c..... Mother and Father are both health.y and physically capable Neither party suffers from any mental

DISCUSSION The parties hereto are each seeking modification of the existing custody order o'f October 1, 2013. Modification of an existing cust~dy order is addressed in 23 Pa.c.s.A. §5338(a) which provides that a. court may _modify a custody order to serve the best interests of the child. The comment thereto provides .that this subsection codifies the standard used in Karis v. Karis, 518 Pa. 601, 544'A.2d 1328 (1988) where the supreme court .he'td=that+a reques·t-·-to--modi·fY····a· ··GU.stody orden naqui.res .the c.ou.c!; ~ . to enquire into the best interests of the child regardless of 53RO JUOICIAI. whether a "substantial" change of circumstances has be~n shown. OISYRICT Karis, 518 Pa. at 607-8. F\'ENC:£ COUNTY NNSVLV .... NIA'

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Additionally, Mother is requesting special relief so that her award of primary physical custody may be materialized. A tequest for ~pecial relief is iddressed in 23 Pa.c.s.A. §5323(b) provides that the court may issue an interim award of custody to a party who has standing in .the manner. prescribed by the Pennsylvania Rules of Civil Procedure governing special relief in ·custody matters. Although extensive proceedings have been held on the competing requests for modi.ficatiori, and for special relief and finding~ of contempt, essentially nothing has changed subsequent to the proceedings that resulted in the October 1, 2013 custody · .:·order except that c adamantly refuses to be with his mother. cqjgzp's recalcitrance to being with his mother was recognized by the trial judge in the prior proceedings.· In the .October 1, 2013 opinion, the -cour-t noted that Father encourages c 's unreasonable apprehensions regarding Mother (Page 25); that Father has demonstrated a desire to frustrate Mother's relationship with cg 9 (Page 29); that if Father is awarded primary physical and sole· legal custody, cg 3 's relationship with Mother will dissipate to the point of disrepair (Page 33); that the foregoing analysis finds fault in F~ther for enabling c 's unwarranted fears and ' trepidations of Mother; ' ' the court believes that Father's actions have caused Mother's relationship with c to suffer, but the court does not believe that ............................................................. ·Father's actions should be characterized as alienating (Page_ ..

S3RO 33). JUDICIAL DISTRICT

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Although the trial court in the prior proceedings stops short ·of characterizing Father's actions as alienating, the court did attribute c 's unfounded.perceptions of his Mother to be caused by Father's actions and that Cllllllf'S thoughts about Mother paralleled those of Father.5 The court's prediction proved to be true, that if cs t were· left in the custody of Father, the relationship wi th cc I and Mother wou'l d only deteriorate. However, the circumstance that allowed Father to have the custody was not brought about by court order, but·by the fact that c•• s'imp'ly refused to be _with Mother, and that 'cf rcumerance has been allowed to exist without being :specifically addressed by the court re'l at lve to the aspect of ·enforcement of the October 1, 2013 order. The issue of a ch+Id refusing to see his mother, although u~usual, has been·addressed by our appellate court?. In Nancy E.M. . v. -Kenneth D.M., 316 Pa.super. 351, 462 A.2d 1386 (1983), . the superior court held that the fact that a child does not want to see his parent is not a sufficient reason to deny the parent ' visitation. The court further held that ordering visitation at the desire of the child was tantamount to denying mother her visitation rights and therefore constituted error. In ~om.Ex Rel. stoyko v. stoyko, 267 Pa.super. 24, 405 A.2d 1284 (1979), the court set down a specific standard to be

..... ......... - ····- .. -··············--·····- . sMore r-ecerrt ly, Mother filed an in~unction proceeding against ·Father·•s·-···-· .. ·-····· significant other, seeking to en'oin her from interfering in the custody matters. a . E 1 · a , No. 10191 of 2014, C.A. The 53RD same trial ju ~et at issue the octo er l, 2013 custody order in this case JUDICIAL denied injunct1ve re1ief1 but in a Pa.R.P. 192S(a) opinion found that the DISTRICT "root of the mi nor chi1 d s behavior seems to have been derived from or. Thomas." (Pa.A.R.P, 192S(a) opinion dated February 4, 2015, page 10. ·1tNCE: COUNTY Htll.YLVANIA

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followed in addressing the child's refusal to see his parent. In stroyko, the superior court held that the stubborn refusal of a child not see his mother should not be allowed to destroy the parent's visitation rights unless some good reason can be shown for the child's attitude. In determining whether the child is justified in his behavior, exploration should be made into Mother's past and present to decide whether the causes for th~ chi"ld's fear and resentment had ever existed or have since · vanished. Here, after evaluating all of the available evidence, · the court finds not only that there is no basis for c to · 'have any fear of his mother, the court al so .finds that in •reality cg I has no fear towards his mother nor of his ~aternal grandfather. The court finqs that c expresses this · fear only for the purpose of fulfilling his father's · expectations that he have no contact with Mother. In concluding that the conduct of Father is. alienating conner from his mother, the court points to the following factors: Both c 3 and Father express the ·fear that Mother will harm both c and Father. Father has even expressed his fear to the point that he obtained a ~oaded firearm that he carried·. with him during the custody exchanges out of fear that.Mother ·would kill him. He has gone as far as carrying this loaded firearm into the Westmoreland county courthouse during PFA 1 P roceedt n9s ; nvo ~i. ~~- . -h·i·;;·~·,·i . . . . M~t'tie·~- . -in·d· . E. . . . -- . · ·--·-;· . --,..e"a"a,. .,-~T-·fo. . 'fili·· · 53AO arrest. These fears have been repeated by both cs A and JUDICIAL OISTRICT Father repeatedly during these proceedings, prior proceedings of

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this case and in all of the related proceedings in this court and in Westmoreland county .. other than the testimony of cqg111..- and Father, t6ere has not been one iota of evidentiary support; for these expressed fears. Neither this court nor any other court has found any support for these expressed.fears. The available evidence leads to the conclusion that the expression of fear is contrived. similarly, c 's expression of fear . . towards his maternal grandfather is incredulous, and has been so found by this court and in prior court proceedings in this court and in Westmoreland county. Equally incredulous is ca D's statement that the maternal grandfath.er .called him a "worthless :pi-ece of shit", the court making this finding after observing the grandfather and ~ssessing his testimony and demeanor. ot~er claims of~ have.been dispr~ven. c:•slll• claimed that Mother answer.ed the door on one occasion naked and it was represented that there existed a video to support the claim. The video that was requested to be produced did not show what he had described. cj R claimed that Mother had stabbed and smashed a voodoo doll representing her desire to kill Father. The exact voodoo doll produced was not damaged in the least. Further evidence · showed that the doll cou~d not be easily removed from w~er~ it was affixed, and when c•• was confronted with the doll he $Uggested that perhaps it had been replaced. .. ·-··· -v ., ca ,,-,,.~ '

9·9 a1 so s·~· ~~·t;ci·- . th~t . Mother had P 1 ace,rh:rs· i:i'fcfiir.e... . ··

!531'10 next to the voodoo doll indicating her desire that c should JUDICIAL DISTRICT also be harmed just like Father should be. Evidence showed that

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the picture ca z p p was referring to was a picture of c.a R that Mother carried, out of love, on her keychain, which hung on a hook. next to the "voodoo doll" . Father and·c engaged in a procedure whereby at the time Mother was to receive ca C for her period of custody, they would drive into Mother's driveway,. cs 3 would exit the vehicle, videotaping all the way, either knock on Mother's door and tell her he was not staying or simply bypass the house, and then walk over to the Fireside residence, wait ·for his father and then return to ~reensbur·g. The fact that this was a mere -. charade for court purposes is indicated by the fact that a video ,shows ·that c•• . : . begins videotaping while in the vehicle with his father, that father knows to wait for ca O at the· Fireside . residence instead of simply leaving, and allows Clllllltto have continued access to Fireside by not requiring . . that the code for . . entry ; nto the home be changed from the code that ca Sis aware of, allowing conner·to have access to a safe haven to avoid having to be with Mother. cgpppp's claim of fear of his mother is dtsproven by a video in which Mother atrtempts to direct ca I to get off the phone, having spent a considerable time on the phone with his . father .. In the video Mother is under.standab 1 y frustrated as ·c£ 9 is obstinate in his refusal to get off . the phone and can -be seen· and heard taunting his mother in an obvious attempt to •,,ir'•.1 ··get ·her .to lose her. temper while c ·-····i.s viileotapi'ng~. her:···.:-·····-. . ·:· : .....+: cg R hi mse1 f testified that he uses the video for purposes to 53RD JUDICIAL DISTRICT be used in court against his mother.

'Rli:NC:I!: C:OUNTY tNNSYI..VANIA

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With regard to the use o~. the video, Father has the obvious ability to prevent c · . from videotaping, even to the extent of removing the phone.from him if necessary but makes no effort to do so. In every custody exch~nge attempted where Father drops c off at Mother's house, there is not one initiative that Father has done anything that- can be observed by any person whereby·he attempts to make c:•• stay with his Mother. Additi ona 11 y, the evidence in this case is compe 11 i.r:19 that cB J wi 11 in fact do whatever his father ·di rects him to do. The .. evidence is clear that Father directs every aspect of ·c 's life. It is. simply unbelievable that c will adhere iockstep to every directive and expectation of Father except as to this one aspect of·his'life relating to seeing his mother. The court finds tryat if Father did in fact direct cg ? to stay with his mother, he would obey his father. The matters before the court include the emergency petition for special relief filed December 3, 2013 as supplemented by the emergency supplemental petition filed January 7, 2014. The issues raised in these petitions are the same issues that wil.1 be considered as part of the determination of the competing claims for modification of the custody order.. Thus, the . disposition of these motions do not require a separate analysis ?ince these petitions addressed what has already been discussed, ,.... , . "the i nabi li.ty ·Of :.Mothe.r to effectuate ·the q.1stody. ··o·r·d·e-r·-:15y : : S3RO reason 9f cm · 's refusal to go to her home and Father's role v

JUDICIAL DISTRICT in- bringing that situation about or permitting it to exist.

Ffl!:NCE COUNTY NNSYLVANIA

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The court is required. to separately address the petition for contempt filed April 8, 2014 and the petition for contempt filed September 4, 2014. The April 8, 2014 petition alleges that Father has denied or coerced, conspired or otherwise controlled c p in an effort to deny Mother her primary physical custody; that Father pay lip service to the October 1, 2013 order by dropping cg 1 off at Mother's residence every other Sunday, at which time· c gets out of the car, runs to Father's significant other's r~sidence at Fireside where Father is waiting for c , and they depart; that Father intentionally, willfully and wantonly· · thwa:rts:Mother's relationship with c p; that Father fails to uphold -Mother as a parent that cs 1 should love and respect; that Father blatantly 1:1ndermines Mother's. role as a parent; and that Father speaks in a ·derogatory, condescending, and otherwise inappropriate manner. about Mother to .cg $ in an effort to . ./ reinforce c••t's unfounded, nonsensical beliefs about Mother;· and that Father refuses to communicate with Mother and provide .,

her any information about c•• The Petition for contempt filed September 5, 2014 alleges that Father has willfully and wantonly withheld cs: S from the Neshannock Jr./sr. High school where he was enrolled for the 2013-14. school year and, without any authority to do so, enro l Ied ca I in the Hempfield school District in Westmoreland ......................................................... '

. , . · .. ·, . -ccuntv. Father also incorporates by. . r.efe-re'ri'c·e· . ·fo"··'the.:··p·eXf'EiOtf . . .

S3RO for contempt filed April 8, 2014. JUDICIAL DISTRICT

IRltNClt COUNTY i>NNSYL.VANIA

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The issue of contempt is addressed in 23 Pa.c.s.A. §5323(9), addressing contempt for noncompliance within a custody order. That subsection· provides as follows: (1) A Rarty who willfully fails ·to comply with any custody order may, as prescribed by general rule, be adjudged in contemRt· contempt shall be punishable by any one or more of the following: (i) imprisonment for a period of not more than six months. (ii) a fine of not more than $500.00. (iii) probation for a period of not more than six months. (iv) an order for nonrenewal, suspension or denial of operating privile~e under §4355 (relating to denial or suspension of licenses). (v) counsel fees and costs. (2) An order committing an individual to jail under this section shall specify the condition which, when fulfilled, will result in the release of that. individual. In order to support a finding of contempt, it must be found that the offending party failed to comply with a clear and specific provision of a custody order, and that the failure to comP1Y w~s intentional and willful. A fin~ing of contempt cannot be supported if based upon an original order. that is vague. Mellgtt v. Mellott, 328 Pa.super. 200, 476 A.2d 961 (1984). A custodial parent's obstruction of the noncustodial ·parent's right to visit the child may serve as the basis of an . prder finding the offending party in contempt. As held in · .· :;·:·; · - ·~E~·g-1 . i··~·h-.::;~·-··E~gi i sh' 322. Pa·. super. 23'4, 4.69 A, 2cf"'"270""'(19'83)"~--·the···oooo• . , -.

S3RD obstruction of a child's visits with a parent will not be JUDICIAL DISTRICT tolerated· and a parent who obstructed a child's visits with the

fRENC&: COUNTY !!:NNSYI.VANIA

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other parent was in contempt of an order providing for visitation. rights. Even an honest belief that visits between ~hild and parent waj causing the child psychological harm could not justify the deliberate violation of a court order providing for visitation. English v. English, supra. The court here finds that the specific allegations of the April 8, 2014 contempt Petition cannot form the basis for a finding of contempt. Although the court has clearly indicated that Father is alienating c:•• against Mother, the specific allegations of the petition are either too general and vague or were unproven. AS held in Sutliff v. Sutliff, 361 Pa.super. 194, ·5.22 · A.2d 80 (1987), a party cannot be held· in contempt for failing to "encourage" visitation without a finding that a specific provision of the order was violated and that the provision ·was clear and.definite. such contentions.as allowing cg fto have refuge at Fireside may violate the spirit of the· order, not specific provisions thereof. However, the court finds that Father is in contempt of the October 1, 2013 order by enrolling cs Fin the Hempfield school oistric~ in Greensburg, Pennsylvania. Paragraph 2 of the October 1, 2013 custody order specifitally provides that Mother ·; s awarded so 1 e 1 ega 1 custody of cg S. That paragraph defines legal custody as the legal right to make major decisions ~ffecting. the best interests of the child. Major decisions :~if·;~·ii·:~g.: ''t'he c}ifi"d i° nc 1:ude·· iiduc·ati ori' ahd···:Eidtit-atlon·· ·ts··.· ': . =»: .. 53RD specifically identified in the court order. At the time the JUDICIAL DISTRICT ·october 1, 2013 order was +ssued , c n p attended school in the

FtENCl5: COUNTY :NNSVLVANIA

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Neshannock Township school District, the school district in which Mother resided,. mother having been awarded primary physical and legal custody and was the school district that c S had been attending in recent years. c& I continued to ·attend the Neshannock school District through the end of the 2013-14 sch9ol year. Prior to the commencement of the 2014-15. school .year, Father, willfully, and without authority, and without·the consent of Mother, enrolled C( p in the Hempfield school District in Westmoreland county, the county in which Father resides- Father had absolutely no authority to do this and sucli conduct was in direct contravention of the October 1, 2013·,cu-stody order. Father did not seek approval of the court in enrolling c i~ the Hempfield sch~ol District but simply took it upon himself ·to do so .. In accomplishing this enrollment, Father represented on an enrollment form that he had custody of cg ff, which is in contravention of the October 1, 2013 custody order. The court.finds that Father's actions in this regard were intentional and willful. The court finds that the conduct of Father violates Paragraph 2 of the October 1, 2013' custody order.

CONCLUSION For the forgoing reasons, the court will issue an order ·consi~tent with this Opinion which will dismiss the' claim of -each . party -for modi fi cation .of fh°e."'ex,s"t"i n:g-·c(fs't'c>,ay'""O"rder"·of··-"":-··•oo .. , OO> 0 ... ,,.••M•o0 .. 0,Ho,o0• 0 '"' o• ~.............. • ....... ~--·· 0

. ' '.:. -, . October 1, 2013 as to primary physical custody, partial custody 53RO JUDICIAi. DISTRICT and legal custody, but wi'll grant Mother speci-al relief relating

IR£NCE COUNTY ltNNSVI.VANIA . 90

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to enforcement of the order, and grant Mother's contempt petition filed September S, 2014 .

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... · :~,: . :~. . . . . . . . . . . . j~.;-·:: _ .

53RO JUOICl,'.'l. DISTRICT

WRENClt COUNTY •e;NNSYLVANIA