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[U] B.A.Z. v. M.A.B.

Superior Court of Pennsylvania

May 29, 2013

B.A.Z., Appellant
v.
M.A.B., Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered October 12, 2012 In the Court of Common Pleas of Butler County Civil Division at No(s): FC No. 06-90325-C

BEFORE: BOWES, DONOHUE, and MUNDY, JJ.

MEMORANDUM

BOWES, J.

B.A.Z. ("Mother") appeals from the order entered in the Court of Common Pleas of Butler County on October 12, 2012, which granted the petition for modification of the existing custody order filed by M.A.B. ("Father"), with respect to the parties' daughter, A.Z., born in November of 2003. We affirm.

In May of 2006, Mother initiated the underlying custody action. By agreement of the parties, the trial court issued an order, dated February 12, 2007, granting Mother primary physical custody and Father partial custody three out of every four weekends during the school year and on alternating weekends during the summer, in addition to one full week during June, July, and August, inter alia. The order granted the parties shared legal custody.

On June 5, 2011, A.Z. was critically injured in a motor vehicle accident with her maternal grandparents.[1] One month later, on July 8, 2011, extensive custody litigation commenced between the parties. This appeal arises from Father's petition for modification of the existing custody order, i.e., the February 12, 2007 order, which he filed on January 19, 2012. Father alleged that, since the time of A.Z.'s accident, Mother had impeded his communication with A.Z., his partial physical custody of A.Z., his shared legal custody of A.Z. regarding matters pertaining to A.Z.'s medical condition, and Mother had failed to adequately address A.Z.'s medical needs.

The trial court held a six-day custody trial wherein the following witnesses testified: Father; Benjamin G. Miller, M.D.; Sr. Anna Marie Gaglia, A.Z.'s school principal; Eileen Harper, A.Z.'s religion teacher; Stacey Meskanick, a teacher at A.Z.'s school; B.R.Z., A.Z.'s maternal aunt; Mother; Bruce Chambers, Ph.D., who performed a custody evaluation; Sue C. Counts, a caseworker with the Butler County Children and Youth Agency ("CYS"); M.B., A.Z.'s paternal grandmother; Kristina S. Totin, who supervised visits between Father and A.Z. for CYS; Nancy J. McKee, a registered nurse who assisted Ms. Totin with supervised visits; C.K.M., Father's paramour; J.B.Z., A.Z.'s maternal grandmother; and T.P.Z., A.Z.'s maternal grandfather. In addition, the trial court conducted an in camera interview of A.Z.

Following the hearing, the trial court issued its findings of fact and legal rationale in a thorough memorandum opinion that accompanied the custody order. That fifty-one-page document, which was dated October 11, 2012, and entered on October 12, 2012, set forth the facts and procedural history in this case. As the certified record sustains the court's factual recitation, we adopt it herein as our own. See Trial Court Opinion, 10/12/12, at 1-37.

In essence, the trial court granted Father sole legal and primary physical custody, subject to Mother's supervised therapeutic visitation for a minimum of two hours per week.[2] The order directed that Mother shall enroll in individual therapy, and that her supervised therapeutic visitation shall not begin until she has completed her first therapy session. Further, the order directed that A.Z. shall be enrolled in counseling.

Mother timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter, on December 7, 2012, the trial court entered its Rule 1925(a) opinion, wherein it addressed the additional issues that Mother leveled in her Rule 1925(b) statement.

On appeal, Mother presents the following issues for our review:
I. The trial court committed an abuse of discretion in awarding father sole legal and primary physical custody, and supervised visits for mother, when it failed to engage in a comprehensive analysis to determine the best interest of the child and failed to weigh the evidence as required for a best interest determination.
II. The trial court committed an abuse of discretion in awarding father sole legal custody when the court failed to determine if sole legal custody by ...

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