K.T. AND M.R.T., Appellants
L.S. F/K/A L.R., Appellee
Submitted March 31, 2015
Appeal from the Order Entered November 6, 2014. In the Court of Common Pleas of York County. Civil Division at No(s): 2013-FC-001604-03. Before THOMPSON, J.
David C. Schanbacher, York, for appellants.
Meredith R. Allie-Gordon, York, for appellee.
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
Appellants, K.T. (" Paternal Grandmother" ) and M.R.T. (" Paternal Grandfather" ) (collectively, " Paternal Grandparents" ), appeal from the order entered in the York County Court of Common Pleas, which denied their request for partial physical custody of their minor grandchildren, K.A.T. (born in September 2007) and K.W.R. (born in March 2009) (" Children" ), in this custody action. We reverse and remand for further proceedings.
The certified record indicates the relevant facts and procedural history of this case as follows. Appellee, L.S. f/k/a L.R. (" Mother" ), and D.T. (" Father" ) are the natural parents of Children. Mother gave birth to K.A.T. while she was in high school and living with her mother (" Maternal Grandmother" ). Maternal Grandmother would not permit Father to live with Mother because they were unmarried, so Mother moved in with Father in Paternal Grandmother's home in December 2007, when K.A.T. was approximately two months old. Mother and Father did not marry, but they maintained a relationship until early 2009. In January 2009, when Mother was pregnant with their second child, K.W.R., Mother and Father separated and Mother moved with K.A.T. out of Paternal Grandmother and W.B.'s home. At that time, Mother moved in with a co-worker for several months.
Beginning in January or February 2009, Mother and Father split custody of K.A.T. During Father's periods of physical custody, Children resided with Father in Paternal Grandmother and W.B.'s home. Mother gave birth to K.W.R. in March 2009. Mother and Father subsequently split custody of K.W.R. as well. In April 2009, Mother met D.S. In May 2010, Mother married D.S. (" Mother's Husband" ) in Hawaii; Father and Mother agreed Father would take custody of Children while Mother was in Hawaii to marry. In the summer of 2010, Father anticipated imminent deployment to Iraq. Based on his expected deployment, Father agreed Mother could take Children to live in Hawaii with Mother's Husband. Mother and Father agreed Father would have custody of Children during the summer months and holidays, and that Father could communicate with Children via phone calls and social media. Around August 2010, Mother and Mother's Husband moved with Children to Hawaii. Mother obtained a new telephone number, but she did not disclose her new phone number to any of Father's family members, including Paternal Grandparents, and limited Children's telephone communication only to Father. After Mother had already moved to Hawaii with Children, Father learned his anticipated deployment would not occur, but he continued to permit Mother to live with Children in Hawaii. Mother and Father agreed that if Mother moved back to Erie County, they would again split physical custody of Children on an equal basis.
In November 2011, Mother and Mother's Husband returned from Hawaii with Children and moved to Clymer, New York. The parties dispute whether Mother told Father she had moved back from Hawaii with Children. In August 2012, Mother and Children moved with Mother's Husband to Wisconsin. Mother obtained a new phone number upon moving, which she did not give to Father or Paternal Grandparents. On February 17, 2013, while Mother and Children were still living in Wisconsin with Mother's Husband, Father died in an automobile accident. Mother and Children did not attend Father's funeral. Around March 2013, Mother and Mother's Husband moved with Children to York County, Pennsylvania, where they currently reside.
On September 6, 2013, Paternal Grandparents filed a joint petition in York County seeking partial physical custody of Children. At the time Paternal Grandparents filed their petition, Mother had denied them any access whatsoever to Children. By order dated October 4, 2013 and entered October 7, 2013, the court issued an interim custody order granting sole legal and primary physical custody of Children to Mother. The court awarded Paternal Grandparents the following periods of partial physical custody, beginning with a " phase-in" schedule:(1) Friday, September 27, 2013, from 5:30-7:30 p.m., in York County, with Mother present; (2) Saturday, September 28, 2013, from 9:30 a.m. until 12:00 p.m., in York County, with Mother present; (3) December 27-29, 2013, at Paternal Grandmother's home in Erie County, phasing out Mother's presence during the scheduled visits; and (4) two weekends between January 1, 2014 and June 1, 2014, in York County. The interim custody order provided the following regular schedule of partial physical custody thereafter: (1) three weeks over the summer (one week in June, July, and August) in the summer of 2014 and each following summer; (2) two weekends each in the fall and spring to occur in York County; (3) four overnight periods during Children's Christmas break, between December 27th through December 31st each year; and (4) any other times agreed to by the parties. The interim custody order also included a provision for Skype communication between Children and Paternal Grandparents to occur each Sunday at 7:00 p.m., beginning on October 6, 2013.
After Paternal Grandparents commenced their custody action, Mother's Husband started proceedings to adopt Children. The court initially granted the adoption, but Paternal Grandparents intervened on or around November 4, 2013, when they learned of the proceedings. Because Mother and Mother's Husband failed to notify Paternal Grandparents about the adoption proceedings, the court vacated the adoption decree.
The court held a custody trial on February 10, 2014. At the start of trial, the court announced it was the first custody trial the court had presided over in approximately five years. The court expressed dissatisfaction with the legislature's enactment of the Custody Act since the court had last presided over a custody trial. The court stated:
Frankly, I'm not sure how I want to do this. But since this is the first custody trial that I have to sit on--fortunately, the other cases assigned to me have been resolved by agreements.
That being so, I think it fair to counsel to advise them that I did sit and try and figure out when the last custody trial I had and I think it was about five years ago having other assignments in the interim.
And during that period of time, the legislature enacted a big comprehensive custody act, bunch of stuff that they did. They determined that they needed to help the courts in deciding these cases by telling them what factors they have to consider in determining what the best interest of the child or children is.
Honestly, I've taken a look at the statute. I have personal reservations as to whether the legislature can tell me how to make a decision. But I'm told that's the way we do it.
So counsel should be on the alert that I haven't studied these things. I haven't gone and looked and figured out whatever. So touch base on those things that you think are important to decide what is in the best interest[s] of these children.
(N.T. Trial, 2/10/14, at 11-12; R.R. at 9a).
Paternal Grandmother testified, inter alia, as follows. Mother moved into her home when K.A.T. was approximately two months old. Paternal Grandmother and Mother had a nice relationship while Mother lived with her and W.B. During this time, Mother wrote Paternal Grandmother and W.B. a " thank you" card expressing gratitude for their kindness and generosity, as well as a Valentine's Day card. Mother also wrote Paternal Grandmother a " get well" card after Paternal Grandmother had surgery. On February 7, 2008, Mother executed an " authorization for treatment of a minor" form, which gave Paternal Grandmother and W.B. authority to accompany K.A.T. to doctor's appointments and to consent to K.A.T.'s medical examinations and/or treatment.
Mother moved out in January 2009. When Mother and Father split custody of Children, Father was living with Paternal Grandmother, so Children stayed at Paternal Grandmother and W.B.'s home during Father's periods of physical custody. Paternal Grandmother testified Mother refused to let Paternal Grandparents communicate with Children when they lived in Hawaii. Paternal Grandmother explained Mother threatened Father while in Hawaii that if Father disclosed Mother's phone number to Paternal Grandparents, or allowed anyone else on the phone line during Father's phone calls with Children, that Mother would disconnect the call. Mother also " un-friended" Paternal Grandmother on Facebook.
Paternal Grandmother testified that Mother failed to tell Father when she moved from Hawaii to Clymer, New York. In February 2012, Father learned that Mother was in Clymer, and when Father confronted Mother about moving from Hawaii, Mother claimed she was back in town for a short time on vacation. Paternal Grandmother explained Mother agreed Father could visit Children once during this " vacation" period. Paternal Grandmother testified that Father visited Children again in July 2012, when Father discovered through Maternal Grandmother that Mother was still living with Children in Clymer. In August 2012, Father returned to Clymer to visit Children again, but Mother had already moved away.
Following Father's sudden death in February 2013, Paternal Grandmother hired a private investigator to locate Mother and Children. When the private investigator discovered Mother had an address in Wisconsin, Paternal Grandmother hired a second private investigator in Wisconsin. Ultimately, Paternal Grandmother located Mother and Children in York County, Pennsylvania. Upon finding Mother and Children, Paternal Grandparents served Mother with the custody complaint.
Paternal Grandmother testified that Mother was uncooperative with the terms of the interim custody order. With respect to the court-ordered Skype conversations, Paternal Grandmother said Mother claimed her camera was broken, so Paternal Grandparents could not actually see Children during the calls. Paternal Grandmother's son, S.T. (" Children's Uncle" ), offered to fix Mother's camera free-of-charge, but Mother refused the offer. Paternal Grandmother testified that if she called Mother to speak with Children outside of the court-ordered Skype timeframe, Mother would not answer the phone or she would state it was not a good time or tell Paternal Grandmother to wait until the court-ordered timeframe to speak with Children.
Paternal Grandmother testified that Paternal Grandparents' first visit with Children under the interim custody order was a success. The visit took place at an arcade, and Children recognized Paternal Grandparents right away. Paternal Grandmother also spoke highly of Paternal Grandparents' visit with Children over the Christmas holiday. Paternal Grandmother had a Christmas party at her home with Children's extended family. Paternal Grandparents, their significant others, and Children's paternal aunts, uncles, cousins, and other relatives attended. Children made glow bugs, balloons, made a Christmas gift for Mother, and played with their cousins. Children also participated in a balloon launch to honor Father's memory. Children's great-aunt gave Children a memory box containing a small toy soldier and Father's dog tags. Mother later discarded the toy soldier, claiming it promoted violence.
While the interim custody order was in place, Paternal Grandmother sent Children Captain America and Superman action figures. Paternal Grandmother testified Mother also discarded these action figures as " too violent," even though Mother permitted Children to dress-up as Superman and Batman for Halloween.
Paternal Grandmother admits she has rheumatoid arthritis. Paternal Grandmother denied having any health issues which would impede her ability to care for Children. Paternal Grandmother and W.B. both smoke cigarettes but do not smoke around Children. Paternal Grandmother admitted she was charged with passing a bad check in 2012 and with theft of services in 2009. Paternal Grandmother did not explain the details of these charges.
Paternal Grandmother is currently employed with Interim Health Care for the past four years. Prior to her employment with Interim Health Care, Paternal Grandmother owned a daycare which she operated out of her home. Children were enrolled in the daycare when Father was at work during his periods of physical custody (when Father and Mother had split custody). Father paid Paternal Grandmother approximately $14.00 or $15.00 each week as his " co-pay" for the daycare services. Paternal Grandmother said Father paid her to babysit K.A.T. even when Mother had been living with Paternal Grandmother and W.B.
Paternal Grandmother intervened with the adoption proceedings because she does not want Mother's Husband to adopt Children. Paternal Grandmother said Mother's Husband uses military-style discipline with Children. Paternal Grandmother also expressed concerns that Mother's Husband is racist, based on his Facebook posts related to " racial stuff and Nazi stuff." 
Paternal Grandmother requested the court to enlarge Paternal Grandparents' periods of partial physical custody under the interim custody order. Paternal Grandmother sought three weekends each in the fall and spring to occur in Erie County so that Children's extended family can see Children. Paternal Grandmother suggested the parties could meet at a half-way point to exchange custody. Paternal Grandmother also sought two weeks' custody in June, July, and August. Paternal Grandmother explained that she has an amicable relationship with Paternal Grandfather, and they agreed that during Paternal Grandparents' periods of partial physical custody, Children will stay overnight at Paternal Grandmother and W.B.'s home; Paternal Grandfather will see Children during the daytime.
Paternal Grandfather testified, inter alia, as follows. Paternal Grandfather has a good relationship with Paternal Grandmother. Paternal Grandfather goes to Paternal Grandmother's house during the court-ordered timeframe for Skype calls with Children. Paternal Grandfather echoed Paternal Grandmother's testimony regarding the successful first visit with Children under the interim custody order. Paternal Grandfather said Children remembered him when Paternal Grandfather first saw them at the arcade. Paternal Grandfather had a great interaction with Children at the Christmas visit as well. Children asked Paternal Grandfather to teach them guitar. Paternal Grandfather admitted he had a problem with alcohol abuse in the past that worsened after Father's death. Paternal Grandfather currently attends Alcoholics Anonymous meetings twice each week and does not consume alcohol. Paternal Grandfather last consumed alcohol on December 21, 2013. When confronted with a recent picture of himself holding a beverage can, Paternal Grandfather described the beverage pictured as a " Genny NA" ; the " NA" stands for non-alcoholic. Paternal Grandfather smokes cigarettes, but he does not do so in front of or around Children.
Paternal Grandfather is unemployed due to a 1996 work-related oil field injury that required multiple surgeries. Paternal Grandfather currently collects social security disability and has no residual effects from the injury which would impair his ability to care for Children. Paternal Grandfather discussed a custody schedule with Paternal Grandmother and echoed Paternal Grandmother's request for additional time with Children. Paternal Grandfather confirmed Paternal Grandmother's statement that Children would sleep at Paternal Grandmother and W.B.'s home during Paternal Grandparents' periods of partial physical custody. Paternal Grandfather indicated that he will travel with Paternal Grandmother to York County to visit Children if the court permits Paternal Grandparents to exercise partial physical custody; they will obtain separate rooms in the same hotel.
Paternal Grandfather indicated he did not call Mother to speak with Children while they were in Hawaii because Mother threatened to disconnect her phone and disappear with Children if anyone from Father's family contacted her. Paternal Grandfather said Father did not disclose Mother's phone number to his family members in fear of losing Children. Paternal Grandfather asked Maternal Grandmother for Mother's address, but Maternal Grandmother would not disclose it. Maternal Grandmother gave Paternal Grandfather a ride home once. Maternal Grandmother asked where Father was and told Paternal Grandfather that she knew where Children were residing. Father happened to be at Paternal Grandfather's home at that moment. Father then had a discussion with Maternal Grandmother outside of Paternal Grandfather's presence, after which Father left Paternal Grandfather's home with Maternal Grandmother to see Children.
Laurie Rogan, the first private investigator Paternal Grandmother hired, testified via telephone, inter alia, as follows. Paternal Grandmother hired her in March 2013 to locate Mother and Children. Ms. Rogan's initial investigation led her to believe Mother and Children were residing in Wisconsin. Paternal Grandmother subsequently hired a private investigator in Wisconsin, who determined that Mother and Children had lived there but moved. Ms. Rogan subsequently sent a United States Postal Service ancillary service request to obtain Mother's forwarding address, which provided Mother's current location in York County, Pennsylvania.
Children's Uncle testified, inter alia, as follows. Children's Uncle offered to fix Mother's computer for no charge so the Skype visual technology would work. During Children's visit over the Christmas holiday, Children recognized Children's Uncle and jumped into his arms. Children's Uncle played guitar with Children, and they built toys. Children's Uncle observed that Children seemed very happy during their visit with Father's family over Christmas. Children's Uncle did not contact Mother when she lived in Hawaii with Children because Father told him that if anyone from his family were to call Mother, she would hang up the phone. Children's Uncle has attempted to contact Mother on Facebook in the past, but he cannot find her name; so Children's Uncle believes Mother " blocked" him.
W.B. testified, inter alia, as follows. W.B. is Paternal Grandmother's significant other. W.B. has known Children since they were babies; Children call W.B. " poppy." W.B. loves Children as if they are his biological grandchildren; W.B. gets along very well with Children. Mother lived with K.A.T. in Paternal Grandmother and W.B.'s home. W.B. and Mother were mostly friendly during that timeframe.
In June 2010, the Commonwealth charged W.B. with harassment due to a physical altercation with a neighbor;  the neighbor had pulled into W.B.'s driveway, continually revved his engine, and refused to exit W.B.'s property. The Commonwealth also charged the neighbor in relation to the incident. The neighbor no longer lives in W.B.'s neighborhood. W.B. did not recall a charge against him for trespass by a motor vehicle.
W.B. is currently disabled due to multiple degenerative discs. W.B. receives social security disability. W.B. does not drink alcohol.
W.B. attended the first visit between Paternal Grandparents and Children under the interim custody order. Children remembered W.B. and called him " poppy." The second visit with Children under the interim custody order took place on September 28, 2013, at a park. W.B. also attended that visit and played tag with Children, at great physical cost. At the Christmas visit at Paternal Grandmother and W.B.'s home, Children were excited and appeared to have lots of fun. Children made Mother pictures of reindeer as a Christmas gift.
W.B. denied he smoked marijuana in his home when Mother lived there. W.B. also denied driving by Mother's place of employment after Mother had moved out of his home. Following W.B.'s testimony, Paternal Grandparents rested their case.
Mother testified, inter alia, as follows. Mother moved out of Maternal Grandmother's home in December 2007 and moved into Paternal Grandmother and W.B.'s home at that time. Mother lived with Paternal Grandmother and W.B. with K.A.T. until December 2008. Mother's relationship with Paternal Grandmother was good at first. Over the course of Mother's stay at Paternal Grandmother and W.B.'s home, Mother's relationship with Paternal Grandmother worsened. Mother felt like nothing she did was good enough while living in Paternal Grandmother's home. Mother said Paternal Grandmother had strict rules. For example, Paternal Grandmother would not allow Mother to talk on the phone or go to the grocery store without Paternal Grandmother's permission. Mother claimed Paternal Grandmother told Mother that if she wanted to move out, Mother would have to leave K.A.T. with Paternal Grandmother and W.B.
Mother conceded that she let Paternal Grandmother watch K.A.T. while Mother worked; Mother enrolled K.A.T. in Paternal Grandmother's home daycare. Mother said she paid Paternal Grandmother for her daycare services using government assistance. Mother paid Paternal Grandmother every other week; Father paid Paternal Grandmother on the alternating weeks. Mother claimed Paternal Grandmother forced her to commit welfare fraud; Mother alleged she ultimately had to repay the government as a result.
Mother claimed she also had difficulties with W.B. while living in his home. Mother said she initially liked W.B. but is now " terrified" of him. Mother observed W.B. smoke marijuana in the home. Mother claimed she once overheard W.B. talking about a drug deal, and W.B. threatened to kill Mother if she told anyone what she had heard. Mother said she could not escape from Paternal Grandmother and W.B.'s home because they allegedly had video surveillance around the home and trained guard dogs.
When confronted with the letters Mother wrote to Paternal Grandmother and W.B. while living in their home, Mother claimed she was grateful to have a roof over her head. Mother testified: " I know how to count my blessings regardless of how bad something can be, and I did not want to make [Paternal Grandmother and W.B.] mad." (N.T., 2/10/14, at 182; R.R. at 94a).
Mother said she had an okay relationship with Paternal Grandfather. According to Mother, Paternal Grandfather drank a lot.
Mother testified that she attempted to contact Father at basic training to inform him she planned to move out of Paternal Grandmother and W.B.'s home with K.A.T. Mother's attempts to reach Father at basic training were unsuccessful. Mother left in the middle of the night in December 2008 and moved in with a co-worker with K.A.T.; Mother was pregnant with K.W.R. at that time. Father returned home from basic training for a break around January 2009. Mother met with Father at that time and brought K.A.T. to their meeting. Mother claimed Father " kidnapped" K.A.T. for a week and refused to return K.A.T. to Mother's care until Mother's relative threatened Father that he would lose his military career if he did not return K.A.T. Mother admitted she did not report the alleged kidnapping to any authorities.
In early 2009, Mother and Father split physical custody of K.A.T. on a 50/50 basis. Mother gave birth to K.W.R. in March 2009. Once K.W.R. reached six months' old, Mother and Father split physical custody of K.W.R. on a 50/50 basis as well. Mother said Father did not utilize all of his custodial time with Children under the shared custody arrangement. Mother conceded that Paternal Grandparents might have spent time with Children during Father's periods of physical custody, though she was uncertain where Father lived at this time.
Mother began a relationship with D.S. in April 2009, and they married in May 2010. Mother admitted that Father took custody of Children for two weeks while she was in Hawaii to marry. Mother and Father agreed that Mother could take Children to live in Hawaii with Mother and Mother's Husband if Mother agreed to release Father from his child support obligation. The agreement provided that Father would get custody of Children during the summertime, holidays, and have unlimited communication with Children through phone calls and social media. Mother also agreed the custody arrangement would revert to 50/50 custody if Mother moved back to Erie County.
Mother moved with Children and Mother's Husband to Hawaii in September 2010. Mother said Father called only once every four to six months while she lived in Hawaii with Children. Father did not send Children cards while they lived in Hawaii. Mother admitted she told Father not to disclose her phone number to others, but she did not recall threatening to run away with Children if Father gave out her number. Mother said Father did not utilize all of his custody time with Children in the summer because Father anticipated deployment overseas.
Mother, Children, and Mother's Husband relocated from Hawaii to Clymer, New York in November 2011. Mother stayed in New York until August 2012, when she moved with Children and Mother's Husband to Wisconsin. Mother claimed she told Father about her return to New York, and she permitted Father to see Children. Mother said her stay in New York was only temporary, to use up Mother's Husband's vacation time from the Army. Mother admitted she told Husband she was only in New York on vacation. Mother conceded she did not immediately tell Father she was back from Hawaii for good. Mother denied that she was hiding from Father or Father's family while she moved around the country.
Mother, Children, and Mother's Husband moved to Wisconsin in August 2012, when Mother's Husband started school. After the move to Wisconsin, Mother claimed she had problems with her phone which necessitated a new phone number. Mother did not tell Father her new phone number. Mother claimed Father still could have contacted Mother through Facebook, if he wanted to reach her. When Father died in the automobile accident in February 2013, Mother was living with Children and Mother's Husband in Wisconsin. Mother did not attend the funeral because of the cost of travel. Additionally, Mother claimed Children did not really know Father and regarded Father as the " guy with the cool tattoo." After Father's death, some of his family reached out to Mother's Husband through Facebook, asking to see Children. Mother denied their request, stating Father's family had not previously made any effort to see Children. Paternal Grandmother tried to contact Mother to discuss Father's life insurance policy, but Mother did not want to work with Paternal Grandmother.
Mother testified that Children's behavior has changed since entry of the interim custody order. Mother claimed Children now need counseling because they are wetting the bed and having nightmares. Mother insisted Children's emotional issues did not begin until after entry of the interim custody order. Mother said Children hate the Skype calls, and the calls are terrible. Mother contended Children have nightmares because of the Skype calls. Mother tried to fix her phone to allow use of the visual technology, but her efforts were unsuccessful. Mother testified that Children's first visit with Paternal Grandparents under the interim custody order was terrible. Children did not recognize Paternal Grandparents and Children hid behind Mother's leg when they saw Paternal Grandparents. Mother claimed she had bruises on her leg from Children squeezing her so tight.
Mother would not permit Children to play with the action figure toys Paternal Grandparents sent Children because Mother said that the toys promote violence. Mother threw away candy Paternal Grandparents sent Children because Mother thinks candy is bad for Children. Mother complained Children returned home, from the Christmas visit with Paternal Grandparents, smelling like cigarettes and were sick and exhausted after this visit.
Mother denied Paternal Grandmother's request to speak with Children on the phone outside of the court-ordered Skype timeframe because Mother said Children are too busy. Children participate in martial arts classes two to four days each week. Mother does not want Paternal Grandparents to have any custody of Children whatsoever because she thinks Paternal Grandparents are horrible people. Mother admitted that she once filed an abuse report against Paternal Grandmother, which Children and Youth Services ruled " unfounded."
Mother's Husband testified, inter alia, as follows. Mother's Husband has a good relationship with Children. Prior to Father's death, Mother's Husband was on good terms with Father. Mother's Husband gave his phone number to Father in case Father was unable to reach Mother. Mother's Husband said Father did not exercise his holiday time with Children while they lived in Hawaii. Father called Children only five or six times while they were in Hawaii.
Mother's Husband said that during Children's first visit with Paternal Grandparents under the interim custody order, Children seemed uncomfortable. Mother's Husband denied that Children ran into Paternal Grandparents' arms at the first visit. Children called Paternal Grandmother " nana" only after she repeated that word to Children multiple times. Children are not excited to participate in the Skype calls. Mother's Husband has tried to fix the visual technology for the Skype calls but to no avail.
Mother's Husband initially denied posting racist and Nazi-type comments on Facebook. Mother's Husband said he is not a racist or a Nazi. Upon further questioning, Mother's Husband admitted he posted a response to a friend's comment on Facebook on August 11, 2011, stating: " We need to start a fucking chapter of the KKK or Nazi or something. I refuse to live in a town with anything but whites." (id. at 227; R.R. at 117a.) Mother's Husband said this post " was a joke because [my friend was talking] about all of the niggers moving here because there is lots of them." (id. at 227-28; R.R. at 117a.) Mother's Husband said he was not serious. Mother's Husband admitted he had a conversation with a friend on Facebook on February 15, 2013, in which Mother's Husband said: " I want to go nigger hunting." (id. at 224; R.R. at 115a.) Mother's Husband defended this comment as follows: " ...I was angry. But nigger by definition is an ignorant person. It does not mean anybody of color." (id. at 228; R.R. at 117a.)
Mother's Husband said he has African-American friends. Mother's Husband could not recall posting a picture of Hitler to his Facebook page, stating: " Hail to Hitler. We should all be like him." (id.) Mother's Husband explained that when he was in the Army he would shave his head and people would call him Hitler because his last name is German, so if Mother's Husband did post a picture of Hitler, it was meant as a joke. Mother's Husband conceded that on October 18, 2013, he posted: " ...I won't stop until they get nothing because that's what they deserve[,]" in reference to Paternal Grandparents and the current custody action. (id. at 226; R.R. at 116a.) Mother's Husband's Facebook post referencing Paternal Grandparents continued that during Paternal Grandparents' last visit with Children, Mother's Husband believed Paternal Grandparents were high on pain pills.
Mother's Husband said he disciplines Children using exercise. Mother's Husband makes Children do squats, leg lifts, and other forms of exercise as punishment. Children learn a similar discipline in their Hapkido marital arts classes. Mother's Husband said Mother did not throw away the action figure toys Paternal Grandparents sent Children; Mother stored the action figures in the laundry room because Mother and Mother's Husband do not allow Children to play with toys that promote violence. Mother's Husband said Children's behavior has changed since the start of the custody proceedings. Children sleep in Mother and Mother's Husband bed more frequently and have nightmares. Children are currently in counseling.
Mother's Husband tried to adopt Children. Paternal Grandparents intervened, which caused the court to vacate the adoption decree. Mother's Husband still plans to adopt Children after these custody proceedings are resolved.
Mr. Dennis Lagan is a private investigator whom Mother hired for purposes of the custody proceedings. Mr. Lagan testified, inter alia, as follows. Mother hired Mr. Lagan to conduct background investigations on Paternal Grandparents, W.B., and any other relatives with whom Children might have contact. Mr. Lagan discovered the following criminal records. In October 2009, the Commonwealth charged Paternal Grandmother with theft of services; Paternal Grandmother pled guilty in November 2009, paid a fine, $250.00 in restitution, and costs. In 2012, Paternal Grandmother pled guilty to a traffic violation. Later in 2012, the Commonwealth charged Paternal Grandmother with bad checks; the disposition was guilty. Also in 2012, the Commonwealth charged Paternal Grandmother with operating a vehicle without required financial responsibility; that charge was dismissed. In 2013, Paternal Grandmother pled guilty to speeding (71 mph in a 55 mph zone).
Mr. Lagan did not discover any criminal history, bankruptcies, tax liens, or judgments against Paternal Grandfather. Mr. Lagan found one child support action against Paternal Grandfather from 1998.
Mr. Lagan discovered that the Commonwealth charged W.B. with trespass by a motor vehicle in 2008; W.B. pled guilty to this offense and paid a fine and costs. In 2010, the Commonwealth charged W.B. with harassment due to a physical altercation; W.B. pled guilty to this offense in July 2010 and paid a fine and costs.
Maternal Grandmother testified, inter alia, as follows. Maternal Grandmother's relationship with Mother is currently fine, though they have had their " ups and downs" over the years. Maternal Grandmother would not permit Mother and Father to live together when Mother gave birth to K.A.T. because they were unmarried, so Mother moved in with Father at Paternal Grandmother and W.B.'s home. Mother became distraught living with Paternal Grandmother and W.B., so Mother moved out.
When Mother and Father shared custody of Children, Maternal Grandmother described the custodial arrangement as " horrible." Maternal Grandmother said Children had no set routine because they were always back and forth between homes. Maternal Grandmother said Father did not always show up for his periods of physical custody.
Maternal Grandmother said she drove Father to see Children in New York on March 20, 2012, but Father did not get out of the car. Maternal Grandmother indicated Father already knew Mother was living with Children in New York when this incident took place. Maternal Grandmother admitted Mother was upset that Maternal Grandmother brought him to see Children on this date. Maternal Grandmother said she spoke to Father again on August 18, 2012 and informed Father that Mother and Mother's Husband planned to move to Wisconsin with Children. Maternal Grandmother told Father it might be the last opportunity to see Children for a while, but Father said he did not want to see Children. Maternal Grandmother denied that anyone from Father's family had ever contacted her, asking for Mother's phone number or address. Maternal Grandmother believes Mother's Husband is a great man who is good with Children and is giving Children a good life.
Mr. Wilson L. Richardson teaches Children Hapkido, a martial arts class, two to three days each week. Mr. Richardson testified, inter alia, as follows. Mr. Richardson said Mother and Mother's Husband attend the classes and watch Children more frequently than most parents do. Children are doing well in the class.
Keiton Lyle Westfall testified, inter alia, as follows. Mr. Westfall is Father's second cousin. Mr. Westfall and Father did not spend much time together, but they always conversed when they saw each other. In speaking with Father, Mr. Westfall did not recall Father ever being distraught about Children or discussing a search for Children.
After Mr. Westfall's testimony, Mother rested her case. The court instructed counsel to address in closing arguments the statutory factors relating to grandparent custodial rights as well as the two or three year period in which Paternal Grandparents had no contact with Children. Regarding the lack of contact, the court stated: " And, of course, the effect of--assuming parent withholds the children from grandparents, and frankly it makes no difference whether it is hiding them or just simply saying you can't see them, it is the time lag that I'm concerned about." (id. at 267; R.R. at 137a.) The court explained that it planned to make a decision immediately following closing arguments so that the parties could leave the courtroom informed of the result.
Following closing argument, the court explained its custody decision as follows:
Now, before we had this most recent legislation, the test was actually pretty direct and somewhat simple. Upon the death of a child, the parents of the deceased child may seek reasonable partial custody to an unmarried child upon a finding that partial custody would be in the best interest of the child and would not interfere with the parent-child relationship.
Court decisions instruct that the court must consider the amount of personal contact between the parents, the grandparents, and the child or children.
The purpose of allowing partial custody under this is not to replace a parent with a grandparent as a primary caregiver. And essentially what the cases were saying is natural biological parent trumps grandparent for primary physical custody, period.
But as it relates to partial physical custody, that was to continue a healthy relationship with grandparents if that was in the child's best interest and would not interfere with the parent's relationship. And the statute was then apparently replaced by this new one with these factors.
And I'm sorry. I have to say this. When I started reviewing the code when I got this assignment, my first reaction was the legislature has embarked upon an unconstitutional encroachment of the court's authority. They are telling us what we must consider to make a decision.
I'm not sure--the example came to mind is for example if the legislature said we're going to control fat people. So anybody who makes a personal injury claim in an automobile accident case, you've got to consider whether they are fat or not. Now what the heck does that have to do with somebody's injuries? And some of the factors, I'm sorry, that I have reviewed I'm shaking my head saying what the heck does this have to do with the best interest of the children? Oh, it controls the conduct of the adults because the adults can't act like adults. So we'll dictate how the adults will act and call it in the best interest of the children.
I'm tempted to just rule, [Paternal Grandparents' counsel], because I know you are a competent, qualified, good practitioner in the area of family law that this is all unconstitutional because it infringes upon my authority to ...