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

Superior Court of Pennsylvania

February 3, 2014

B.K.A., Appellant
T.M.Z. (F/K/A T.M.A.), Appellee


Appeal from the Order entered June 5, 2013, in the Court of Common Pleas of Northampton County, Civil Division, at No(s): CV2007-9468.




B.K.A. ("Father") appeals from the custody order entered in the Court of Common Pleas of Northampton County that granted T.M.Z. (f/k/a T.M.A.) ("Mother") primary physical custody, and Father partial custody, inter alia, of the parties' two sons, B.A., born in November of 1999, and T.A., born in April of 2001 (collectively, "the children"). We vacate and remand.

The trial court aptly described the procedural and factual history of this case as follows:

The instant matter is the most recent dispute in a long custody battle which began in Lehigh County in 2006. . . . [O]n December 5, 2012[, ] . . . [Father] filed a Petition for Emergency Relief in which [Father] sought primary physical custody of one of the minor children, [T.A.]. The Petition . . . alleged that [S.M.], . . . Mother's paramour, physically disciplined [T.A.] in violation of the Order of [the] Court [of Common Pleas of Northampton County] dated December 16, 2008.[1] Prior to these allegations, and according to the same Order dated December 16, 2008, the parties had shared legal and physical custody of both [T.A.] and [B.A.] on a bi-weekly rotating basis with a midweek dinner visit to the noncustodial parent. An Order dated December 5, 2012 was granted by this Court giving [Father] exclusive physical custody of [T.A.] for the week of December 9, 2012 to December 16, 2012[, ] as [Mother] was found to have violated the Order of Court by allowing her paramour, [S.M.], to participate in the physical discipline of [T.A.].[2] After this week, however, the parties were to resume the bi-weekly schedule as ordered.
On December 21, 2012, [Father] filed a Petition for Contempt and Modification of Custody Order seeking an Order granting him primary physical custody of both children, allowing the children to attend his preference of Wilson High School.[3]This Petition also contained further allegations that [Mother] continued to allow her paramour to physically discipline [T.A.]. [Mother] accordingly filed an Answer and Counterclaim on February 22, 2013. The Answer indicated that while [S.M.] may have assisted her in the discipline of the children, he never used any physical force toward the children. [Mother's] Counterclaim also sought primary physical custody of both children, allowing the children to attend Liberty High School.[4]
. . . Pursuant to an Order dated February 27, 2013, the existing custody arrangement was to remain in effect in the interim and [T.A.] was to meet with Dr. Terrence Brennan, psychologist, for a counseling assessment to determine whether the child or the family had issues which should be addressed through counseling.
This matter was then assigned for a non-jury hearing, which was held on May 14, 2013, and lasted one day. At trial, this Court heard testimony from [ ] Mother, [ ] Father, Jessica Weeks, an unbiased witness and mother of a friend of the minor children, [S.Z.], brother of [Mother], and [T.A.] and [B.A.]. . . .

Trial Court Opinion, 7/22/13, at 1-3 (original footnote omitted).

Prior to the testimonial evidence, the trial court requested that counsel focus the hearing on an incident it described as "the primary motivating factor for filing of primary physical custody, an incident where mother allegedly contacted physicians regarding the mental state of [T.A.]." N.T., 5/14/13, at 4. Mother then testified on direct examination with respect to an incident in her home on December 26 or 27, 2012, when T.A. was "acting out" and told Mother he did not want to live with her and S.M., but with Father.[5] Id. at 4-5. Mother testified T.A. became violent, including, but not limited to, pushing her against the wall and punching B.A. See id. at 4-7. Mother testified, "I told [S.M.], you go in the room. So he was not involved. Take [B.M.][6] in the room. And [B.A.] said we would try to calm [T.A.] down." Id. at 6. Mother's testimony on direct examination continued,

Q. . . . Had the children just come back from a visit with their father [when the incident occurred]?
A. Yeah. [T.A.] actually had an extended visit with his father over Christmas vacation, and the kids were here on Christmas, and then back again with their dad, and then back again with me. So it was a really disjointed week [ ] – filled with transitions. . . .

Id. at 7.

Mother testified that, on the evening of the incident in late December of 2012, she telephoned the office of T.A.'s pediatrician, and that a woman from the office insisted that Mother take T.A. to the hospital to be evaluated. Id. at 8-11. Mother testified that she took T.A. to the emergency room the following day, and that the medical personnel wanted to admit him. Id. at 11-12. Mother testified that Father did not permit T.A. to be admitted to the hospital. Id. at 13-15.

Mother testified on direct examination with respect to T.A.'s behavior as follows:

Q. Have you noticed that these episodes occur – is there any pattern that you have noticed when these escalate?
A. Yeah. I noticed there is a lot of episodes that happen right after a transition. Like Sunday evenings are difficult. Sunday evenings we try to make everything as bland as possible so that, you know, let's just watch a movie or, you know, go over and take a shower, go to bed because [T.A.] has a real problem coming home and says, I don't want to be here, I want to go back with my dad. . . .

Id. at 16-17.[7] Mother testified that T.A. needs structure, and so she requested primary physical custody of the children during the school year. Id. at 21.

In addition, Mother entered as an exhibit the report of Terrence P. Brennan, M.A., who, pursuant to the order of court dated February 27, 2013, performed an assessment to determine T.A.'s therapeutic needs. See id. at Defendant's Exhibit 3. Mr. Brennan stated in his report as follows, in part:

Regarding anger, his mother views [T.A.] as quick to anger. She reported that when angry [T.A.] has banged his head, slammed doors, screamed, cursed, thrown objects and hit his brother. [Mother] stated that [T.A.] angers [one] or [two] times per day with a moderate intensity. The duration is 30 minutes or longer.

Id. at 2. Mr. Brennan stated in his report that T.A. presented for two examination dates, one with Mother and one with Father. He continued,

With his mother [T.A.] was surly, avoided all eye contact and was difficult to engage. He was much more outgoing in the presence of his father. [Mother] is intimidated by [T.A.'s] anger and it is my belief that [T.A.] exploits this when in the presence of his mother.

Id. Mr. Brennan concluded:

My assessment is that [T.A.'s] parents see very different sides of him. He is more cooperative for his father than for his mother. He has too much power over his mother. This is not in his best interests. He is able to pit his mother against his father and vice versa. . . .
My recommendation is that his parents need to work together for [T.A.'s] well[-]being. Their contentiousness is having a negative impact on him. It is coloring his relationships, at least 50 per cent of the time, with his family. Until this is accomplished I am afraid [T.A.] will be the individual who bears the brunt of the disagreements between his parents.

Id. at 3.

With respect to T.A.'s temper tantrum with Mother in late December of 2012, Father indicated upon questioning by the trial court that T.A. "wanted [Mother] hurt emotionally because of the way she stood by and allowed [S.M.] to assault him." Id. at 34. Father continued,

Because [T.A.] was scared from the time that [S.M.] assaulted him back in November, on November 29th.[8] And with that, you know, he openly stated that mom did nothing. And to this day he still, you know, expresses to me that he's afraid to be in [Mother's] house. And it really ...

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