M.A.T. v. G.S.T.

• Decision Date: 21 January 2010
• Docket Number: No. 1517 MDA 2008.,1517 MDA 2008.
• Citation: 989 A.2d 11,2010 PA Super 8
• Parties: M.A.T., Appellant v. G.S.T., Appellee.
• Court: Pennsylvania Superior Court

989 A.2d 11

2010 PA Super 8

M.A.T., Appellant v. G.S.T., Appellee.

No. 1517 MDA 2008.

Superior Court of Pennsylvania.

Argued September 24, 2009.

Filed January 21, 2010.

Kathleen Misturak-Gingrich, Harrisburg, for appellant.

Darren J. Holst, Harrisburg, for appellee.

BEFORE: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN,^* BENDER, BOWES, PANELLA, DONOHUE, SHOGAN and ALLEN, JJ.

OPINION BY DONOHUE, J.:

¶ 1 Appellant M.A.T. ("Mother") appeals the trial court's order dated August 11, 2008 denying her petition for modification of a custody order granting Appellee G.S.T. ("Father") primary physical custody of their daughter K.J.T. ("Daughter"). The trial court based its decision on (1) its application of an evidentiary presumption against a homosexual parent, see, e.g., Constant A. v. Paul C.A., 344 Pa.Super. 49, 496 A.2d 1 (1985); and (2) rejection of uncontroverted expert testimony recommending shared custody. For the reasons set forth herein, we reverse the trial court's order and grant Mother's petition for modification of the custody order. In doing so, we overrule the holding and reasoning in Constant. We further rule that the trial court in this case abused its discretion in rejecting the recommendations of the jointly retained custody evaluator and basing its decision to award primary physical custody to Father upon the trial court's personal opinion that shared custody is seldom (if ever) in the best interests of school-age children. Accordingly, we vacate the trial court's order dated August 11, 2008 and remand for entry of an order consistent with this Opinion.

¶ 2 Mother and Father were married in September 1993. After unsuccessful attempts at bearing their own children, they adopted Daughter as an infant in 2004. Around February 1, 2006, Mother advised Father of her involvement since October 2004 in a same sex relationship with a friend and confidant. In October 2006, Mother filed complaints in divorce and for shared custody of Daughter, and Father filed an answer and new matter seeking primary physical custody of Daughter.¹

¶ 3 In anticipation of the upcoming custody hearings, Mother and Father jointly agreed to retain Deborah L. Salem ("Salem"), of Interworks in Harrisburg, to conduct a custody evaluation and proffer an opinion regarding Daughter's best interests in connection with the custody decision. Salem issued her report in advance of the hearings, recommending a "3-2-2-3" arrangement in which the parents shared custody on an alternating schedule every two to three days. Salem acknowledged that it would take Daughter approximately twelve to eighteen months to adjust to her parents' separation.

¶ 4 On April 3, 2007 and May 17, 2007, the trial court held evidentiary hearings on the custody of Daughter. In addition to Mother, Father, and Salem, numerous family members and work associates testified on behalf of the parties.² On May 30, 2007, the trial court issued its initial custody order, in which it ordered the implementation of Salem's proposed "3-2-2-3" schedule for an eighteen-month "transition period." After this transition period, the trial court awarded primary physical custody of Daughter to Father, with Mother being granted visitation every other weekend, alternating holidays, and six weeks during the summer. Neither Mother nor Father appealed the May 30, 2007 order.

¶ 5 On March 3, 2008, Mother filed a petition for modification of the May 30, 2007 custody order. Father filed an answer in response and the trial court scheduled an evidentiary hearing for August 6, 2008. At this hearing, Mother called Salem, who had prepared an updated custody evaluation, to testify. Salem reaffirmed her opinion that a shared physical custody arrangement on a "3-2-2-3" basis was in Daughter's best interests.³ Father testified in his own behalf, stating that in his opinion Daughter would benefit from his assumption of primary physical custody (per the May 30, 2007 order, set to begin on September 1, 2008). At the conclusion of this hearing, the trial court offered the following:

While there have been some minor changes in circumstances regarding [Mother's] residence and her relationship with this other person, it continues to be my abiding belief that the best interests of a school-aged child are served in a primary physical custodial relationship. I respect [Salem]. I respect her credentials. But I respectfully disagree with her ultimate conclusions that a shared custodial arrangement is in this child's best interest. And it was for that reason that I made a primary award of [Daughter] in my order. The only reason that we had a shared custodial arrangement since that order up until the September 1st date was to allow [Daughter] to transition through a separation of her parents. . . . I'm not going to expound at any great length on why I think primary physical custody is to be preferred. It's based upon my many years on the bench, my own personal experience as a parent, a grandparent, a foster parent. As I said, I have differences of opinion with [Salem]. And we'll just leave it at that. . . . So, again, while [Salem] thinks that might be disruptive, I don't think it's any more disruptive than this hacked-up schedule where she's two days here, two days there, three days here, and then the next week the days are reversed. Otherwise, the old expression, if it's Monday, I must be in Paris, something like that. Well, you know what I am talking about.

N.T., 8/6/08, at 179-81. On August 11, 2008, the trial court denied Mother's petition for modification and issued a new custody order essentially restating the terms of the May 30, 2007 order, including the grant of primary physical custody to Father effective September 1, 2008.

¶ 6 Mother filed a timely notice of appeal from the trial court's August 11, 2008 order.⁴ In its written opinion pursuant to Pa.R.A.P. 1925(a), the trial court found that the evidence presented at the evidentiary hearings established that "both Mother and Father were loving, caring parents and each were quite capable of assuming the role as primary physical custodian." Trial Court Opinion, 10/23/08, at 6. The trial court defended its grant of primary physical custody to Father on two grounds. First, the trial court found that Mother had failed to meet her burden of proof to establish her entitlement to custody. In this regard, the trial court cited to prior decisions of this Court, including Constant and Barron v. Barron, 406 Pa.Super. 401, 594 A.2d 682 (1991), which held that in custody determinations "[t]he burden is on the parent who is involved in a gay relationship to prove that there will be no adverse effect on the child if exposed to the relationship." Id. at 687. The trial court indicated that "Mother never offered testimony to the effect that her homosexual relationship would not have an adverse effect on [Daughter]," and therefore concluded that "when weighing [Daughter's] best interests between the two households we believe those interests are better served by placing her in a traditional heterosexual environment." Trial Court Opinion, 10/23/08, at 14, 15.

¶ 7 Second, the trial court decided to disregard Salem's recommendation that continuing the "3-2-2-3" schedule would be in Daughter's best interests. The trial court found as follows:

We have carefully considered the testimony and report of [Salem] the social worker who was retained to do the evaluation in this case. We strongly disagree that [Daughter's] best interest would be served by bouncing her between the households on a "3-2-2-3" schedule. Once a child is enrolled in school she needs a place which she can call home, a place which provides constancy in routine —study times—television times— meal times—bedtimes. She needs constancy in matters of discipline, chores, personal hygiene. She does not need to spend endless hours being transported between households. It is our abiding opinion that [Daughter's] best opportunity to thrive socially and academically will be far better served by living, at least during the school week, in a single place.

Id. at 18. The trial court did not cite to any evidence of record in support of this determination.

¶ 8 Mother raises three issues for our consideration in this appeal.

(1) Whether the trial court erred in awarding primary physical custody to Father effective September 1, 2008 and whether such award was the result of bias, prejudice and/or ill will towards Mother, who had had a same-sex extra-marital relationship, which she had terminated prior to the August 6, 2008 Hearing.

(2) Whether the trial court upset the status quo of shared legal and physical custody without good cause and further erred by substituting its own prejudice and bias against shared physical custody of school age children, despite the uncontroverted and unqualified record evidence of the expert custody evaluator that this minor child was thriving in the current shared physical custody arrangement and any decrease in child's custody time with either parent, but especially Mother, would cause significant psychological and emotional harm to the child.

(3) Whether the trial court erred by (1) misstating and/or misapplying the law respecting custody by requiring a "substantial change in circumstances" to warrant modification of its May 31, 2007 Order and by disregarding the requirements of 23 Pa. C.S.A. 5303(a)(1) and (2) by failing to consider the preference of this minor child stating, "I consider any preference by the child to be absolutely irrelevant" and by failing to consider ample record evidence that Mother is the better co-parent.

Appellant's Brief at 7.⁵

¶ 9 With respect to Mother's first issue on appeal, Mother argues that the trial court erred in applying an evidentiary presumption requiring a parent involved in a same sex relationship to prove that exposure to said relationship will not have an adverse effect on the child. The law as enunciated by this court in this area is conflicting....