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

Superior Court of Pennsylvania

May 29, 2013

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


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




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 father was in the child's best interest.

Mother's brief at vi.

Our standard of review is as 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 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., III v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted).

The primary concern in any custody case is the best interests of the child. The best-interests standard, decided on a case-by-case basis, considers all factors that legitimately have an effect upon the child's physical, intellectual, moral, and spiritual well[-]being. Saintz v. Rinker, 902 A.2d 509, 512 (Pa.Super. 2006), citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa.Super. 2004).

Relevant to this case are the best interest factors set forth in § 5328(a) of the Child Custody Act ("Act"), 23 Pa.C.S. §§ 5321-5340, which provides:

§ 5328. Factors to consider when awarding custody.
(a) Factors. – In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's education, family life and community life.
(5)The availability of extended family.
(6)The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the child's maturity and judgment.
(8)The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11)The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party's household.
(15) The mental and physical condition of a party or member of a party's household. (16)Any other relevant factor.

23 Pa.C.S. § 5328(a).

Herein, the trial court thoroughly considered the § 5328(a) best interest factors in light of the record evidence. See Trial Court Opinion, 10/12/12, at 39-51. We set forth the court's findings with respect to the factors most relevant to the court's decision as follows.

With respect to the first factor, the court found that, "[b]ased on Mother's repeated history of alienating [A.Z.] from Father and her attempts to interfere with his custodial time, it is abundantly clear that Father is far better suited to promote a relationship between Mother and [A.Z.] than vice versa." Id. at 39. In considering the fourth factor, the court found that, "[w]hile a change of primary custody would be a significant adjustment for [A.Z.], once the adjustment period has passed, Father is also capable of providing a stable and loving home for [A.Z.]." Id. at 43. The court emphasized that the goal of changing primary custody "is to create a lasting stability in [A.Z.'s] life, one in which she eventually has a healthy and stable relationship with both parents and their respective extended families." Id. at 44. With respect to the seventh factor, the court found A.Z.'s preference to remain with Mother "immature and superficial." Id. at 45. As it relates to the eighth factor, the court found, in part, that "[A.Z.] has parroted [Mother] that Father is the devil and causes her stress." Id. at 45. With respect to the ninth factor, the court found, in part, that "the level of hostility . . . Mother openly harbors toward Father, of which [A.Z.] is aware, has created emotional and behavioral issues for [A.Z.]." Id. at 46. In light of the tenth factor, the court found, "given that Mother has placed her own priorities above the emotional needs of [A.Z.], the Court is of the position that Father is better suited than Mother to meet all of [A.Z.'s] collective needs." Id. at 47. In relation to the thirteenth factor, the court found, in part, "[t]he level of conflict between the parties is extremely high." Id. At 48. Finally, with respect to the sixteenth factor, the court found as follows, in part:

Of utmost importance to the Court's determination of custody is Mother's repeated alienation of [A.Z.] and complete inability to co-parent with Father. . . . [A] continuation of Mother having primary custody would be emotionally damaging to [A.Z.]. Furthermore, any unsupervised custody that Mother may have with [A.Z.] at this time would only undermine efforts to rehabilitate the relationship between Father and [A.Z.].

Id. at 50-51.

Upon careful review of the parties briefs, pertinent law, and the certified record, we conclude that the Honorable Kelley Streib cogently adressed Mother's arguments in her well-reasoned opinions entered on October 12, 2012 and December 7, 2012, and we affirm on the bases contained therein.

Order affirmed.

Judgment Entered.

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