author: WORTHINGTON, J.,

text:
    Aceti v. Dinoski

      C.P. of Monroe County,
    no. 1003 DR 1999.

      Arthur L. Zulick, for plaintiff.

      Thomas P. Sundmaker, for defendant.

      Elizabeth Bensinger Weekes, for Monroe County Children and Youth Services.
    June 13, 2000
   WORTHINGTON, J.,

The plaintiff Christopher Aceti, Father, and defendant Patricia Dinoski, Mother, come before the court concerning custody of their daughter, [ redacted ], age 9. [ redacted ] was born in Boynton Beach, Florida on February 8, 1991 as a result of a brief relationship between Mother and Father. Her parents were not living together at the time of her birth. Shortly after birth, [ redacted ] moved with her mother to New Jersey and has had only sporadic contact with her father when he traveled to visit her in New Jersey and Pennsylvania or when Mother took her to visit with him in Florida.

This case comes before the court in a somewhat unusual manner. Unlike most evidentiary hearings where the parties have been embroiled for many months and sometimes years in custody litigation, this case has never before come to the court’s attention with respect to custody. In fact, the first and only complaint for custody was filed by Father on October 8, 1999 in response to the filing of a petition for hearing in a dependency proceeding filed by Monroe County Children & Youth Services on October 4,1999 to no. 31 NC 1999. The Honorable Peter J. O’Brien found [ redacted ] to be a dependent child after hearing on October 13, 1999 and as part of his order states that “Since the goal of the family service plan is to return the child to live with one of her parents, the custody conciliation conference scheduled for November 15, 1999 in an action captioned at 1003 DR 1999 shall proceed as scheduled notwithstanding the present dependency status of this child.” On November 15,1999 a conciliation conference was held resulting in a recommendation by the conciliator and a court order for home study and psychological evaluations in preparation for an evidentiary hearing. [ redacted ] lived in a foster home from September 30,1999 through January 2000 when she was placed with her maternal aunt and uncle, Judy and Scott Angus in Bangor, Pennsylvania. An evidentiary hearing was held on Father’s petition for custody on April 25, 2000 and the court will now dispose of the issues before us.

In any custody case, the court’s paramount concern must be for the best interest of the child. Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998); Mumma v. Mumma, 380 Pa. Super. 18, 550 A.2d 1341 (1988). The child’s physical, intellectual, moral and spiritual well-being are of the utmost importance. Wiseman, 718 A.2d at 847; Swope v. Swope, 455 Pa. Super. 587, 689 A.2d 264 (1997). However, these concepts are nebular terms rendering them amenable to neither simple definition nor application. See Morris v. Morris, 271 Pa. Super. 19, 412 A.2d 139 (1979). There are no presumptions in favor of either parent and the court must make its determination based solely on the particular facts and circumstances of each case. Sawko v. Sawko, 425 Pa. Super. 450, 625 A.2d 692 (1993). In short, this court is obliged to consider all relevant factors that could affect the child’s well-being. Andrews v. Andrews, 411 Pa. Super. 286, 601 A.2d 352 (1991), alloc, granted, 533 Pa. 605, 618 A.2d 397 (1992), aff’d, 533 Pa. 354, 625 A.2d 613 (1993).

In this case we heard testimony from numerous witnesses and had the benefit of home studies and psychological evaluations on Mother, Father and [ redacted ]. Additionally, we spoke with [ redacted ] in chambers.

Mother is 35 years old and unemployed. She is married to Michael Gaffin and is eight months pregnant. Mother graduated from Montville High School in New Jersey in 1982 and attended cosmetology school for one year. She has essentially worked sporadically as a waitress since that time. She moved around a great deal since her high school graduation and in 1990 moved to Delray Beach, Florida where she met Mr. Aceti. Their relationship lasted approximately three weeks and following its ending Mother learned that she was pregnant with [ redacted ].

Father is 39 years old and is employed as a production associate at Motorola and has been with the same company for almost five years. He resides in his own home in West Palm Beach, Florida which he purchased approximately five years ago. He has lived in Florida for 14 years. Before his employment at Motorola, he worked for Borden Dairy for 10 years as a route salesman.

The instant case presents special difficulties as it contains a direct conflict between the emotional ties and bonds between [ redacted ] and her mother versus the stability and consistency of Father. Father’s request for primary custody is also a request for relocation of the child to Florida and will be analyzed as such.

In a hearing where relocation of a child is at issue, the court must analyze the facts presented in relation to the standards enunciated in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). Although the court in Gruber addressed the relocation of a custodial parent, the Superior Court in Clapper v. Harvey, 716 A.2d 1271 (Pa. Super. 1998) directs that in appropriate cases the factors outlined in Gruber, supra be considered as part of the overall best interest analysis when a non-custodial parent wants to relocate with the child.

The factors enumerated in Gruber are:

(1) The potential advantages of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent;

(2) The integrity of the motive of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and

(3) The availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. Gruber v. Gruber, 400 Pa. Super, at 184-85, 583 A.2d at 439; Beers v. Beers, 710 A.2d 1206, 1208-1209 (Pa. Super. 1998); Plowman v. Plowman, 409 Pa. Super. 142, 154, 597 A.2d 701, 707 (1991). Furthermore, the Gruber considerations must be applied under the “umbrella of the ultimate objective of determining the best interests of the child.” Anderson v. McVay, 743 A.2d 472, 474 (Pa. Super. 1999).

Under Gruber as applied in this case, we must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the child and is not the result of a momentary whim on the part of the parent.

Father’s request for primary custody of [ redacted ] can hardly be viewed as a momentary whim. His reasons for filing a complaint after nine years is clear- — -[ redacted ] was removed from Mother’s custody by the police and taken into protective custody. She was then found to be a dependent child and placed with Mother’s sister and brother-in-law in Bangor, Pennsylvania.

We believe that Mother loves [ redacted ] immensely, but that her choices in life adversely affect this child. While Father has not had the opportunity to know [ redacted ] well, partly by his own fault, his choices in lifestyle have been steady and consistent. Mother’s lifestyle can best be described as nomadic, travelling from Florida to New Jersey, back to Florida, on to Arizona and finally Pennsylvania. Since this case came to the court’s attention in October of 1999, Mother has lived in three different residences in two different counties. Throughout these moves [ redacted ] has had to change schools and adapt to changes in friendships as well. Mother has moved from job to job as a waitress and is currently unemployed. She is eight months pregnant and collecting disability which she states will end in September. When asked how she will support herself, she said that she has $20,000 in the bank and $11,000 that she has put up as bail for her husband. She also testified that her father pays the rent on her apartment.

Maternal grandfather appears to be the person who has bailed Mother out of trouble along the way and in doing so has made every attempt to protect [ redacted ] and give her some stability. He and [ redacted ] have a very close relationship and she also has a close relationship with her maternal aunt and uncle with whom she has been living during her dependency status. Mother does not have a good relationship with her own mother.

In stark contrast to Mother’s lifestyle, Father owns his own mobile home where he has lived for almost five years. He has resided for almost fifteen years in Florida and is currently employed at Motorola. He has held his current job for almost five years and worked steadily for Borden Dairy for 10 years preceding his current employment. He has extended family, including his mother, who is recently remarried, his brother, sister-in-law, nieces and nephews who live in the West Palm Beach area, some within four miles of his home.

Father describes his home as being in a family park with a playground and many children. [ redacted ] would be attending Growth Park Elementary School where her cousins attend school and day care would be provided by Father’s sister-in-law who is a stay-at-home mom. Based on these factors, we believe that a move would substantially benefit the child in providing stability and consistency in her life.

The second factor in Gruber is to explore the integrity of the motives of both the custodial and the non-custodial parent in either seeking the move or seeking to prevent it. We find that Father has no insincere motives in seeking the child’s relocation. In fact, it appears that he has stepped up to the plate and wants only to provide this child with a better life and future. Mother’s motives in seeking to prevent the move are mostly sincere in that she has been [ redacted ]’s primary caretaker for all of the child’s life. Mother stressed the fact that they do very “girly” things together with hair and make-up that a father won’t be able to do. Although there is conflicting testimony on this point, we believe that Mother does not really want [ redacted ] to have a relationship with her Father and to that extent her motives may be insincere. Overall, neither party appears to have insincere motives and we therefore find that the second factor in Gruber has been met.

Finally, we must consider the availability of realistic substitute visitation arrangements which would adequately foster an ongoing relationship between the child and the non-custodial parent.

Mother is not employed and will soon have another child. Her financial resources appear to be limited and we question how she will be able to support herself and her children. She testified she expects to go to work on the weekends after the baby is bom. Father is employed full-time. We believe that based on prior history in this case, the parents do not seem to communicate well and any substitute arrangements would have to be specific in all areas so that the parties can understand them and comply. Father has traveled to Pennsylvania at least three times over the past five months to participate in dependency and custody proceedings and it appears he is not adverse to flying the child and continuing contact with Mother. Fie has always purchased the tickets in the past for Mother and [ redacted ] to come to Florida and would be willing to allow [ redacted ] to stay at Mother’s home provided he believed she would be safe. We therefore believe that alternate, substitute visitation arrangements are available pursuant to the third Gruber factor.

In Lee v. Fontine, 406 Pa. Super. 487, 489-90, 594 A.2d 724, 726 (1991) our Superior Court held that the Gruber test does not replace the best interest standard in child custody disputes but merely provides a framework in which to conduct that analysis. When determining what is in [ redacted ]’s best interest, the court must consider a variety of factors including the preservation of the child’s physical, intellectual, moral and spiritual well-being. Father’s request for primary custody is a drastic and complete shift in what [ redacted ] has known for all her life. However, when the facts presented at hearing are carefully scrutinized, we believe that it is in [ redacted ]’s best interest to be with her Father.

Currently, legal and physical custody of [ redacted ] is vested in Monroe County Children & Youth Services pursuant to an order of court in dependency. The standard for adjudicating a child dependent is “clear and convincing” evidence as well as a showing of clear necessity. Helsel v. Blair County CYS, 359 Pa. Super. 487, 519 A.2d 456 (1986); 42 Pa.C.S. §6341(c). Once a child is adjudicated dependent, however, the issues of custody and continuation of foster care are determined according to a child’s best interests. In re Miller, 380 Pa. Super. 423, 552 A.2d 261 (1988); In Interest of Sweeney, 393 Pa. Super. 437, 574 A.2d 690 (1990). Evidence presented at hearing supports Father’s position that dependency should be terminated and that physical custody should be awarded to him.

At the hearing Mother testified that she had completed all of the requirements of the family service plan mandated by Monroe County Children & Youth Services. She also testified that she was seeking psychiatric care but that she was unable to take her medication because of her pregnancy. While we must commend Mother for seeking the care she needs, we were left with the feeling that everything she has done was in preparation for trial and that, left to her own devices, she would again make poor lifestyle choices that would adversely impact [ redacted ] and that we would again see this case in the dependency forum.

As stated earlier, Mother has moved numerous times between four states with [ redacted ] since her birth. She married Michael Gaffin after the commencement of this case but her testimony at hearing indicated that they were separated and would not be residing together again. Statements made by Mother on examination led this court to believe that she is less than sincere about keeping Mr. Gaffin out of her life and that he wilí be living with Mother again in the future. Credible evidence presented at hearing showed that Mother has a criminal record including convictions for aggravated assault and neglect of child ([ redacted ]) within the past three years. At the time of the hearing there were charges of possession of controlled substance pending. Likewise, Mother’s husband, Michael Gaffin, has a criminal record and at the time of hearing was awaiting sentencing for aggravated assault on a police officer. The incident occurred the night that [ redacted ] was taken into protective custody.

In April of 2000 Mother called the police to her home where they found her husband intoxicated, glass broken, another person bleeding, and where Mother gave the police officer what appeared to be drug paraphernalia. In formulating a custody order, the court shall consider each parent and adult household member’s present and past violent or abusive conduct 23 Pa.C.S. §5303(a)(3). The description at hearing by both Sargent Gary Larsen and Ms. Gaffin herself paints a picture of a household environment that would not be in the best interest of any child.

One of the other factors in determining the welfare of a child is the child’s “stable” relationship with an established parental figure and a “known physical environment.” Mother is correct in her statement that Father is not an established parental figure for [ redacted ] in that they have spent minimal time together for reasons that we will discuss hereafter. However, by her own testimony, Mother’s relationship with [ redacted ] is more like that of a “best friend” and although they love each other very much, it is clear that Mother has not made many mature choices in her life based upon [ redacted ]’s best interests. Although we agree that a parent’s ability to care for a child is to be based on facts existing at the time of hearing, we believe that Mother’s past conduct is indicative of a pattern of behavior and that the present facts surrounding her life are not much better. Brooks v. Brooks, 319 Pa. Super. 268, 466 A.2d 152 (1983); Hall v. Mason, 316 Pa. Super. 160, 462 A.2d 843 (1983); Witmayer v. Witmayer, 320 Pa. Super. 372, 467 A.2d 371 (1983).

We believe that given all of the facts surrounding her choices and care of the child that her ongoing behavior will have a negative impact on the welfare and well-being of the child. Witmayer, supra; Hartman v. Hartman, 328 Pa. Super. 154, 476 A.2d 938 (1984).

By contrast, Father’s home environment and lifestyle are stable and consistent, although not extravagant. He owns a modest home and has been steadily employed by the same company for five years. He has extended family nearby who will help care for [ redacted ] and cousins with whom she will attend school. Likewise, Mother has extended family and [ redacted ] is very close to her maternal grandfather. Mother however, is estranged from her own mother, and her sister and brother-in-law who have cared for [ redacted ] during her dependency status are no longer willing to do so. We have considered the extended family situation and find that through the testimony of Mr. Dinoski, the maternal grandfather, and Mrs. Aceti, the paternal grandmother, that both are willing to help with [ redacted ] and want to be a part of her life. In fact, Mr. Dinoski seems to have been the most stable influence in [ redacted ]’s life since birth.

A troubling portion of this case is that Father has had minimal contact with [ redacted ]. There is conflicting testimony regarding the reasons. Mother says that Father wanted her to have an abortion, that he denied paternity and that she has done everything in her power to try and foster a relationship between Father and [ redacted ]. Father states that he has been met with interference and that because of the hostility between him and Mother every visitation ended prematurely. He testified that Mother would just leave with [ redacted ] and wouldn’t let him know her whereabouts, for example, Arizona. Hostilities between the parents are relevant in custody proceedings only insofar as they constitute a threat to the child or affect the child’s welfare. Nancy E.M. v. Kenneth D.M., 316 Pa. Super. 351, 462 A.2d 1386 (1983). There is significant conflict between the parties in this case. We note that Mother would often answer questions with hostility and give glaring looks to Father. Mother was overheard by Attorney Weekes in the courtroom speaking with [ redacted ] during a recess. On cross-examination Attorney Weekes asked Mother:

“Q. Did you talk to [ redacted ] at all today when you were in the courtroom with her?

“A. Yes.

“Q. What did you say to her?

“A. I asked her if her dad sent her something for Easter.

“Q. Did you ask her what she had in her hands?

“A. Yes.

“Q. What did you say to her?

“A. I asked her what she was shooting with it.

“Q. Did you ask, is that a gun to shoot your dad?

“A. No, I did not say that. If you seen it, you can tell. It looks like a firecracker, like a rocket.

“Q. You said, is that to shoot her dad?

“A. Yes, I did.” (N.T. p. 182.)

The court must also consider which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child. 23 Pa.C.S. §5303(a)(2). Mother’s statement in the courtroom on the day of hearing makes us believe that her testimony regarding Father’s desired involvement is less than credible and that Father will more likely encourage contact.

Finally, we consider [ redacted ]’s testimony and feelings. [ redacted ] is an articulate 9-year-old who, as expected, wants to live with her mother. She struck the court as guarded when discussing matters in her mother’s house. She appeared to want to protect her mother and say the right thing. Although generally, a child’s expressed wishes are not controlling in a custody decision, they are an important factor that the court must consider when those wishes are based on good reasons, taking into account a child’s age, maturity and intelligence. Cardamom v. Elshoff, 442 Pa. Super. 263, 659 A.2d 575 (1995). When asked by counsel what she would order if she were in charge, she said she would live with her mom because “I really love her.” We believe that [ redacted ] loves her mom but we also believe that she loves her dad and actually appears confused about what to say with regard to him. The primary reason for [ redacted ]’s preference is valid, that being that Mother is the only parent she has known. This reason, however, is outweighed by the other evidence presented that the child’s well-being is better served in the primary custody of Father.

Although counsel for Mother raises the issue of siblings being raised together (Ms. Gaffin’s baby is due in July 2000), we believe that at this juncture the best interest of [ redacted ] dictates that she should be in a stable, safe environment. We believe that she can still have a close bond with her new sibling by fashioning an order that facilitates their relationship. It is our opinion that [ redacted ]’s best interest will be served by an award of primary custody to her father. The Superior Court in Warren v. Rickabaugh, 410 Pa. Super. 431, 600 A.2d 218 (1991) considered a situation where a long-standing custody arrangement with mother was changed to place the children primarily with father in another state. Over the years, Father has shown an interest in [ redacted ], although not actively, but we believe that in large part Mother’s actions were responsible. Father immediately became involved when he was informed of the protective custody situation and has pursued the matter vigorously. Mother’s home life and environment is not conducive to the child’s well-being while Father’s is stable and consistent.

Accordingly, we enter the following:

ORDER

And now, June 13, 2000, it is hereby ordered as follows:

(1) Legal custody of [ redacted ] Dinoski shall be shared by Mother and Father. Legal custody includes but is not limited to:

(a) All decisions affecting the child’s growth and development, including but not limited to education, medical and dental treatment, religious training, athletic pursuits and extracurricular activities shall be considered major decisions and shall be made by the parents jointly, after discussion and consultation with each other and with a view toward obtaining and following a harmonious policy in the child’s best interests;

(b) Each party agrees to keep the other informed of the progress of the child’s education and social adjustment. Each party agrees not to impair the other party’s right to shared legal or physical custody of the child. Each party agrees to give support to the other in the role as parent and to take into account the consensus of the other for the physical and emotional well-being of the child with a recognition that their lifestyles are different;

(c) While in the presence of the child, neither parent shall make, or permit any other person to make, any remarks nor do anything which could in any way be construed as derogatory or uncomplimentary to the other parent. It shall be the express duty of each parent to uphold the other parent as one whom the child should love and respect;

(d) It shall be the obligation of each parent to make the child available to the other in accordance with the following schedule and to encourage them to participate in the plan hereby ordered;

(e) Each parent shall have the duty to notify the other of any event or activity that could reasonably be expected to be of significant concern to the other parent or to the child;

(f) The parents shall communicate with one another concerning any parenting issues regarding any proposed modification to the custody schedule, understanding that modification may at times be necessary, the parents shall specifically not use the child as messenger. Furthermore, neither parent shall discuss with the child any proposed changes to the schedule or any other issue requiring consultation and agreement, prior to discussing the matter and reaching an agreement with the other parent;

(g) With regard to any emergency decisions that must be made, the parent with whom the child is physically residing at the time shall be permitted to make the decision necessitated by the emergency without consulting the other parent in advance. However, that parent shall inform the other of the emergency and consult with him or her as soon as possible. Day-to-day decisions of a routine nature will be the responsibility of the parent having physical custody at the time;

(h) Each parent shall be entitled to complete and full information from any doctor, dentist, teacher or authority and have copies of any reports given to them as a parent. Such documents include, but are not limited to medical reports, academic and school reports, birth certificates, etc. Both parents may and are encouraged to attend school conferences and activities. Both parents shall be listed with the school as parents to be contacted in the event of an emergency and to be notified regarding school events. Both parents shall forward copies of any school notices to the other parent as soon as received;

(i) Both parents shall attempt to avoid scheduling activities or appointments for the child which would require her attendance or participation at said activity or appointment during a time when she is scheduled to be in the physical custody of the other parent without the parent’s prior approval.

(2)Father shall have primary physical custody of [ redacted ], under and subject to Mother’s periods of partial custody as follows:

(a) Holidays

(1) Thanksgiving — Mother shall have partial custody on Thanksgiving each year from the Wednesday prior to Thanksgiving through the Sunday following Thanksgiving.

(2) Easter — Mother shall have partial custody on Easter every year from the last day of school prior to Easter until Easter Sunday evening.

(3) Christmas — In odd numbered years Father will have custody for Christmas from December 24 until December 26 at noon. Mother will have custody from December 26 at noon until the day prior to school commencing. In even numbered years, Mother’s period of Christmas custody shall begin on December 24 and end on the day prior to school commencing at noon.

(b) Summer

Mother will have custody for eight consecutive weeks during the summer each and every year beginning the first Saturday after the last day of school.

(3) Transportation

Father will be responsible to provide all necessary transportation to effectuate Mother’s periods of partial custody and shall pay the costs of such.

(4) Telephone Access

Each parent shall allow the other parent to have liberal and reasonable telephone access with the minor child during that parent’s period of partial custody. This shall include the child initiating such contact. Reasonable telephone access shall be construed to be during the child’s normal waking hours, emergencies excepted.


source: Caselaw Access Project

author: CARPENTER,

license: Public Domain

text:
    In re Acker

      C.P. of Blair County,
    no. 99 OC 443.

      George Gvozdich Jr., for petitioner.

      Paula Aigner, for respondent Paul Acker.

      A. Thomas Farrell, for respondent Shirley Acker.
    May 18, 2000
   CARPENTER,

This matter comes before the court for hearing on the petition of Theresa L. Brumbaugh, seeking appointment as plenary guardian of the person and estate of Paul R. Acker. The petition was filed on December 10, 1999. Depositions of Dr. Robert P. Bridenbaugh and Dr. Catherine Selth Spayd were taken on January 19, 2000, and April 12, 2000, respectively. The matter was heard by the court on April 24, 2000, to a conclusion. The record is closed and the matter is ready for decision. That decision will be rendered in three parts. This is necessitated primarily by the alleged incapacitated person’s marriage on February 14, 2000, to Mrs. Shirley Mock. This marriage raises additional issues relating to Mr. Acker’s competency, the appropriateness of the proposed guardian, and ultimately the validity of the alleged marriage. We will discuss in order, the appointment of a guardian for Mr. Acker’s estate, the appointment of a guardian for his person and the status of his marriage.

I. GUARDIAN OF THE ESTATE OF PAUL R. ACKER

This issue is the least complicated issue before the court. Counsel for the petitioner, Theresa Brumbaugh, for Mr. Acker, and for Shirley Mock (Acker) are all in agreement Hollidaysburg Trust should be appointed guardian of the estate of Paul R. Acker. We are satisfied, based on the deposition testimony of Dr. Bridenbaugh and Dr. Spayd, Mr. Acker is mentally impaired to the extent he is both unable to make, communicate, or participate in decisions regarding his estate. This includes an inability to manage his property, the risk of dissipation of his assets, and a likelihood he could become the victim of designing persons. As such, a plenary guardian is clearly indicated. Accordingly, Hollidaysburg Trust is appointed as guardian of the estate of Paul Acker to file with this court a report on an annual basis including all the information required pursuant to 20 Pa.C.S. §5521(c). The guardian of the estate to be bonded according to law. We have additionally reviewed the testimony of the petitioner, Donald Acker, Suzanne Claar Acker, and Paul Acker. We are satisfied sufficient evidence has been produced to establish the nature and extent of the alleged incapacities and disabilities of Mr. Acker. His present mental, emotional, and physical conditions, adaptive behavior, and social skills demonstrate the need for a guardian for his estate. We are also satisfied Mr. Acker’s condition is reasonably expected to deteriorate with time.

II. GUARDIAN OF THE PERSON OF PAUL R. ACKER

The next issues before the court are the necessity of a plenary guardian for the person of Paul R. Acker and whether petitioner’s daughter, Theresa Brumbaugh, should serve in that capacity. Based on our review, we are satisfied both as to the need for a plenary guardian and Theresa Brumbaugh as that guardian.

The testimony of Theresa Brumbaugh, Donald Acker, and Suzanne Claar establish their father’s residence has been the Alzheimer’s wing at Homewood since 1997. Mr. Acker’s medical problems began with seizures in 1981, subsequent heart trouble, and several strokes in 1993. Theresa Brumbaugh obtained a power of attorney in 1993 and durable power of attorney in 1997. She has handled her father’s investments, doctor’s appointments, and bills since his admission to Homewood. Her observation is her father is disoriented to a degree where his safety is jeopardized without constant care. As specific examples of his limitations, he tends to get lost when he is walking, leaves water running from faucets, and runs the microwave oven dangerously long. These examples are consistent with the deficits outlined in the doctor’s depositions demonstrating Mr. Acker’s daily living risks if unattended. Mr. Acker can perform basic tasks, i.e. dress himself, eat, and shave. Clearly, Mr. Acker’s difficulties stem more from his judgment than they do his physical ability to perform the actual acts of caring for his person. Mrs. Brumbaugh is satisfied both Outlook Pointe and Homewood provide the level of care that her father needs.

Donald Acker testified to his observations of his father. He described Mr. Paul Acker as having almost no short-term memory. He vividly recalls his father getting lost when taking a walk while visiting him recently in Lancaster. He also recalls his father’s inability to recall where he lived on that visit. Like his sister, Mr. Acker has grave reservations as to his father’s judgment.

We found this testimony consistent with the medical depositions. Dr. Roger Bridenbaugh has been Mr. Acker’s family doctor since September 1984. (Deposition of Dr. Bridenbaugh, p. 6.) He testified Mr. Acker presently suffers from a medical condition which raises questions as to his capacity. (Dr. Bridenbaugh deposition, p. 6.) Dr. Bridenbaugh attributes these deficiencies to multiple strokes leading to multi-infarct dementia mentally and functioned quite well. Following the strokes, he had problems with memory and confusion to the point his condition deteriorated living at home. This was true even though a caretaker stayed with him from 1993 on.

Mr. Acker was admitted to Homewood Nursing Home in 1997. He was placed in the dementia unit (Alzheimers) which is a locked unit. He did well in that setting. Dr. Bridenbaugh described Mr. Acker as superficially seeming “okay,” but when given mental function tests you pick up his deficits. (Dr. Bridenbaugh deposition, p. 78.) Dr. Bridenbaugh was unequivocal Mr. Acker is not able to manage his financial affairs. (Dr. Bridenbaugh deposition, p. 9.) He was similarly unequivocal Mr. Acker is unable to make and communicate responsible decisions relating to his financial affairs, any properties, and/ or business matters. (Dr. Bridenbaugh deposition, p. 9.)

As to his person, he offered the opinion Mr. Acker would be much safer in a structured environment where somebody gives him his medicine and supervises all of his activities. He described Mr. Acker as able to function outside an institution depending on the skill of the caretaker, but unable to get his own apartment and live on his own without a caretaker. (Dr. Bridenbaugh deposition, p. 9.) He described Mr. Acker’s condition from the strokes as fairly stable at present. Mr. Acker takes Coumadin, Ginko Biloba, Dilantin, and Phenobarbital, as well as an anti-depressant and Prinivil for heart function. (Dr. Bridenbaugh deposition, p. 11.) Mr. Acker is capable of carrying on a normal conversation on a superficial basis which would lend an appearance there is nothing wrong. However, his mental capabilities are distinctly lacking. (Dr. Bridenbaugh deposition, pp. 11 and 12.) This is not expected to be reversed. Dr. Bridenbaugh’s optimal prognosis is the condition remains stable and does not deteriorate any further. This is largely subject to whether he has more stroke episodes. Dr. Bridenbaugh offered the opinion Mr. Acker could understand the proceedings with respect to his capacity when explained to him in simplistic terms. (Dr. Bridenbaugh deposition, p. 16.) He described Mr. Acker’s relationship with his daughter as a good relationship. (Dr. Bridenbaugh deposition, p. 17.)

The testimony of Dr. Spayd, a clinical psychologist, who has had the opportunity to examine Mr. Acker and test him in both June of 1999 and February of 2000 is remarkably consistent with the other evidence. The first evaluation was done by Dr. Spayd in two parts on June 8,1999, and June 29,1999, while Mr. Acker was a resident at Homewood. The second opportunity to evaluate and test Mr. Acker was done at Bon Secour Holy Family Hospital on February 3, 2000. At that time, he was living at Outlook Pointe. On June 8, 2000, Dr. Spayd administered the Folstein mini mental state examination to Mr. Acker. On June 29, 2000, she administered the Mattis dementia rating scale, the WAIS-R comprehension subtest, the Rivermeade behavioral memory test, the Boston naming test, and a clock drawing task. (Dr. Spayd deposition, p. 10.) On February 3,2000, she again administered the Mattis dementia rating scale, the WAISR comprehension subtest, and the clock drawing task.

The results of these tests were summarized by Dr. Spayd as demonstrating a number of impairments. Mr. Acker exhibited mild impairment in the area of orientation, significant impairment in the area of attention, and problems with verbal recall. These were the main areas of deficit. (Spayd deposition, p. 12.) He fell significantly below test levels for dementia. The Mattis DRS test which suggested these findings was repeated both in June of 1999 and February 2000. The consecutive testing indicated his condition was deteriorated even from June 1999 to the test eight months later in February 2000. (Dr. Spayd deposition, p. 13.) On the Rivermeade behavioral memory test, which is designed to replicate happenings in a person’s general environment measuring functional memory, he scored in the moderately to severely impaired range. (Dr. Spayd deposition, pp. 13-14.) On the WAIS-R comprehension test measuring social judgment (which is particularly relevant to these proceedings in terms of his abilities to understand and be able to make good judgments in his social environment such as marriage), the patient performed poorly on both occasions, but significantly worse in February. His scores were well below the norm of his same age peers. (Dr. Spayd deposition, p. 15.) In fact, this test represented his most significant area of decline from June 1999 to February 2000. (Dr. Spayd deposition, p. 15.)

Dr. Spayd rendered similar findings to Dr. Bridenbaugh’s as to Mr. Acker’s ability to manage his financial affairs and/or make and communicate responsible decisions regarding his person or his estate. She also expressed concern as to his ability to weigh and evaluate factors necessary to decide if it was prudent for him to enter into marriage. (Dr. Spayd deposition, p. 16.) (We should note Dr. Bridenbaugh was not asked questions relating to Mr. Acker’s capacity to enter into marriage since he did not marry until February 14, 2000, which was after the date of Dr. Bridenbaugh’s January deposition.) Dr. Spayd offered the opinion Mr. Acker’s condition requires the appointment of a guardian to manage his affairs. He is not capable of living outside a structured setting (such as Outlook Pointe) without endangering himself or others unless he had 24 hours supervision by a responsible party, in her opinion. (Dr. Spayd deposition, pp. 17-18.) She rendered this opinion due to his variety of cognitive deficits including memory, attention, judgment, and problem solving. She did not believe he would be able to safely care for himself unless supervised by someone who could assist him. He would not be likely to remember to take his medication appropriately (or even what medication he is on). She offered the analogy if someone smells smoke they have to make a judgment there is danger. Daily living requires problem solving. Because of his impairments, should there be an emergency event, the witness had no confidence Mr. Acker would safely care for himself. (Dr. Spayd deposition, pp. 18-19.)

Clearly, the testimony establishes the need for a plenary guardian. Theresa Brumbaugh has the full support of her brother and her sister as that guardian. The only issue jeopardizing her appointment is the status of Mr. Acker’s present wife. We will discuss this presently.

III. STATUS OF MR. ACKER’S FEBRUARY 14, 2000 MARRIAGE

Finally, we reach the issue of Mr. Acker’s marriage on February 14, 2000, to Shirley Mock. This issue potentially impacts this court’s determination in numerous respects.

First, with respect to Mr. Acker’s estate, it impacts the decision to appoint Hollidaysburg Trust Company and the creation of a trust since a wife necessarily would have an interest in the property involved. It would also impact Mr. Acker’s estate during his lifetime in the event of a divorce or separation. At his death, it certainly impacts his estate and his present will. Similarly, it would impact the appointment of the guardian for his person both as to the necessity of that appointment (since he has a wife to take care of him) and the specific appointment of Theresa Brumbaugh, his daughter, as opposed to that wife. It was with all of these concerns in mind Attorney Farrell was appointed as counsel for Shirley Mock in this proceeding.

It is certainly important to review the history of this marriage. According to her testimony, Shirley Mock first commenced her relationship with Mr. Acker in December 1998, at a church gathering at New Year’s. Following this New Year’s meeting, she took him out almost every weekend from Homewood and later Outlook Pointe. Mr. Acker’s mental state has not presented any significant problems for her. When confronted with the belief by various family members she had failed to properly administer Mr. Acker’s medications, she denied this and indicated no one contacted her with respect to this. As time has passed, she now sees Mr. Acker not only on weekends but occasionally during the week.

Several dates for a wedding were planned, but were not convenient for Mr. Acker’s children. Finally, they decided on Valentine’s Day. She left the decision to tell his children to him. She believes this is a money issue for the children (as does Mr. Acker). Per the witness, Mr. Acker did not want a prenuptial agreement. She volunteered if Mr. Acker were residing with her, home nursing could be involved to monitor medications. She cannot afford to live at Outlook Pointe but would be willing to live there with Mr. Acker if finances were available. She observes while Mr. Acker is forgetful on occasions, problems such as leaving ovens on, water running, or getting lost have not been part of her experience with him. She married Mr. Acker with knowledge of the fact this petition had been filed regarding his capacity. She claims to have had no concerns about this petition and simply wanted to give him a life. She describes him as slow because of his strokes but no worse than that. She would not leave him alone, although she believes leaving him alone would not present a problem as he would not be likely to get into trouble in her judgment. She believes he understands dangers, and/or she can control the situation.

Mrs. Acker, Theresa Brumbaugh, and Donald Acker all testified as to attempts to work out the issue of Mr. Acker marrying. All parties, including Mr. Acker when he testified, agreed a prenuptial agreement was discussed as early as mid-1999 (long before this petition was filed) so his long range care would be guaranteed. Nothing appears to have been totally resolved.

Mr. Acker also testified. He candidly indicated his problems with his children regarding this hearing and his marriage. He stated affection for Shirley and his belief he could take care of her. While he likes Outlook Pointe, he would rather live at Shirley’s where there is more privacy and he could take care of things. He expressed how “terrible” it was to be before the court in this situation.

The children testified to their attempts to talk “some measure of sense” to both their father and Shirley. They have strong beliefs she does not understand what she is getting into, has already failed on several occasions to properly administer medications, and does not understand (because she has never lived with their father) the level of care required. They have grave concerns that level of care is beyond Shirley Mock given her own health limitations.

We believe this fairly paints the picture before the court. That we have stated it in detail demonstrates our understanding. However, that understanding impacts our actual decision little if at all. These parties have come before the court. We have made a finding of incapacity with respect to Mr. Acker. As such, this is no longer a matter of negotiation, prenuptial agreements, or any “understanding.” We must view the validity of this marriage under the law.

Those principles which guide this court are substantially stated in 23 Pa.C.S. §3304 which provides in pertinent part:

“[Wjhere there has been no confirmation by cohabitation following the removal of an impediment the supposed or alleged marriage of a person shall be deemed void in the following cases:

“(3) Where either party to such marriage was incapable of consenting by reason o/insanity or serious mental disorder or otherwise lacked capacity to consent or did not intend to consent to the marriage

“(b) procedures — in all cases of marriages which are void, the marriage may be annulled as set forth in section 3303 (relating to annulment, void, and voidable marriages) or its invalidity may be declared in any collateral proceeding.'’'’

We have stated the applicable law. We are engaged in a collateral proceeding to determine Mr. Acker’s capacity during the very time frame when marriage occurred. He is incapacitated. That impediment has not been removed. We believe we must necessarily determine the validity of this marriage as part of our proper judicial function in this case. We concede no one specifically asked this court in any pleading to void the marriage. Indeed, as a practical matter, such a request would strain relations among these parties to the breaking point. It was rather “suggested” to this court that we have the authority to void the marriage. On that issue, there is no disagreement. We believe we are charged to deal with this issue. Having so concluded, there can only be one result. This marriage must be declared void.

That this is correct is supported by all the evidence without exception. Additionally, it was directly addressed by Dr. Spayd as follows in her April 12, 2000 deposition:

“Q. Okay. Is it your testimony, doctor, that Mr. Acker’s decision-making process with respect to his marriage was impaired as a result of his cognitive deficits?

“A. Yes.

“Q. Are you saying then that under no circumstances is Mr. Acker able to make a rational decision to enter into a marital relationship?

“A. Yes. That’s what I’m saying.” (Dr. Spayd deposition, p. 24.)

This testimony could hardly be clearer or less equivocal. As such we believe action by this court is both appropriate and necessary.

In so holding, we make our own judgment on the capacity issue relying on the expert testimony. This is an issue for expert testimony. We cannot be swayed by the attempts of Mr. Acker’s children to allow his marriage while protecting his assets. We cannot be swayed by the arguments by the children, Shirley Mock might not be up to the task of caring for their father. We cannot be swayed by Shirley Mock’s willingness to take on the care of Mr. Acker nor her affection for him (which we have no reason to doubt). We cannot be swayed by Shirley’s views of Mr. Acker’s abilities (compared to his family and the professionals) or her expressed belief she can care for him without residential placement.

We are dealing with the issue of a marriage. It is a marriage which lacked valid legal consent according to a reputable clinical psychologist who evaluated and tested Mr. Acker the same month (February 2000) this marriage took place. The other evidence in the case supports and reinforces that conclusion. We necessarily find his incapacity existed at the time this marriage occurred. Accordingly and consistent with all of the above, we enter the following order:

(1) Hollidaysburg Trust be appointed as the plenary guardian of the estate of Mr. Acker subject to all the provisions contained in this opinion relating to accountings and bondings;

(2) Theresa Bmmbaugh be appointed plenary guardian of his person with full power to act on his behalf according to law;

(3) The marriage of Paul R. Acker to Shirley Mock is declared void by this court. In the interest of completeness we cite to the ability of Pennsylvania court to determine the validity of a Maryland marriage involving Pennsylvania residents (see generally, Schaffer v. Schaffer, 189 Pa. Super. 120, 149 A.2d 578 (1959)).

Any appeal of this order to be taken within 30 days of the date of its entry.


author: FIELD, J.,

text:
    Presley v. SEPTA

      Louis I. Lipsky, for plaintiffs.

      Daniel P. McElhatton, for defendant.
    August 2, 2000
   FIELD, J.,

Defendant, Southeastern Pennsylvania Transportation Authority, appeals from this court’s order of April 14, 2000, granting plaintiffs’ post-trial motion and ordering a new trial. For the reasons which follow, the motion was properly granted, and the grant of a new trial should be affirmed.

This case arises from an accident which occurred on November 12,1997, in which decedent Givonte Presley was struck and killed by a trolley owned and operated by defendant SEPTA. A jury trial commenced on October 18, 1999. After five days of trial, a verdict was returned. At that time both parties noted an inconsistency in the verdict. The jury was allowed to deliberate again and render a second verdict. Following the second verdict, both sides filed post-trial motions relating solely to the handling of the verdict inconsistency. No other trial issues having been raised, all other objections are deemed waived for the purposes of appeal. .

Briefly, the events leading to this case are as follows. Givonte Presley was playing in front of the public library when his ball went into the street. He went into the street to retrieve it, passing between two parked cars mid-block. A passing trolley struck and killed him. The jury was instructed as to the definitions of both negligence and substantial factor. They were told to first determine if the SEPTA driver was negligent. If so, they were to determine if his negligence was a substantial factor in causing the decedent’s death. The jurors were instructed that if they found the answers to the first two questions to be “yes,” then they had to decide if the decedent had also been negligent and, if so, if his negligence was a substantial factor in causing his own death. The court further explained that if the negligence of both the driver and the decedent had been substantial factors in causing decedent’s death, the jury would have to apportion fault between the parties. The court then instructed:

“If you find plaintiff’s causal negligence greater than that of the defendant, then the plaintiff is barred from recovery and you need not consider what damages should be awarded.” Notes of testimony, October 22, 1999, at 3-4.

Later that afternoon the jury returned with a verdict. Both the driver and the decedent were found to have been negligent. The jury also found that the negligence of both parties had been substantial factors in causing the accident. The jury attributed 30 percent of the causal negligence to the SEPTA driver and 70 percent of the causal negligence to the decedent. However, the jury did not stop there. An assessment of damages in the amount of $134,000 was also made. After the announcement of the verdict, but prior to the dismissal of the jury, a discussion was held at sidebar wherein plaintiffs’ attorney raised the issue of the verdict’s inconsistency. Defense counsel asserted that the verdict was not inconsistent and that under the law the court could properly mold the verdict to zero. After consideration, the court decided to tell the jury that under the instructions they were given and the apportionment of fault made, the plaintiffs could not recover. The court then allowed the jury to reconsider its verdict. After further deliberation, the jury returned with a second verdict, this time apportioning fault evenly. The verdict was recorded and both parties filed post-trial motions.

Plaintiffs’ motion sought to have the verdict molded or, in the alternative, a new trial. Their main argument for molding the verdict is that the jury’s original apportionment must have been backwards and so the verdict should be molded to apportion 70 percent negligence to the defendant instead of the plaintiff. There is nothing in the record to support this conclusion. Indeed, if that were the case, the jury’s second verdict would have corrected such an error by simply reversing the percentages. Alternatively, plaintiffs argue that a new trial is required because in attributing greater than 50 percent negligence to plaintiffs’decedent, the jurors clearly did not understand the court’s instructions, and so the verdict is irreconcilable. The court finds the latter scenario more likely.

Defendant conversely argues that the original verdict sheet was not inconsistent; the jury merely answered more questions than were required to be answered. By sending the jury back to deliberate, the defense argues that the court, in effect, told the jury to change its factual determination. Defense would have the original verdict reinstated and the court mold the verdict to zero.

The decision whether to grant a new trial is a matter committed to the sound discretion of the trial court. Absent an abuse of that discretion or a clear error of law, the decision should not be disturbed. Gunn v. Grossman, 748 A.2d 1235 (Pa. Super. 2000). When, as here, a verdict is inconsistent, a court may mold the verdict if the clear intent of the jury is obvious. When the jury’s intention is not clear, further deliberations may occur or a new trial ordered. Putt v. Yates-American Machine Company B.M., 722 A.2d 217 (Pa. Super. 1998).

Upon review of the record, the parties’ motions, and their briefs thereon, the court concluded that the jury did not understand the instructions as given. Because the second verdict was not a simple correction of the first, such as eliminating the damages amount or reversing the percentages as plaintiffs would have us do, the verdict was found to be flawed. Hence, a new trial is warranted.

For all of the above reasons, this court’s order of April 14, 2000, granting plaintiffs’ motion for a new trial, should be affirmed.

      . Only limited portions of the transcript, relating to the relevant portions of the jury charge and the reading of the verdict were requested by the parties and transcribed.


author: WALLACH MILLER, J.,

text:
    Berger v. Berger

      C.P. of Monroe County,
    no. 592 D.R. 1989.

      Peter C. Layman, for plaintiff.

      Jeffrey J. Kash, for defendants.
    May 24, 2000
   WALLACH MILLER, J.,

The issue presently before the court concerns the custody of Kyle Adam Berger, born July 23, 1989. The contestants in this custody dispute are Kyle’s maternal grandmother, Gloria Muller and Kyle’s natural father, John Berger. Kyle’s natural mother is Amy Berger. Amy was not an active participant in these proceedings, and any reference to “the Bergers” herein refers to Father and his wife Cindy Berger.

Father and Amy married on March 26,1988 and separated soon after Amy gave birth to Kyle. Amy left the marital residence and moved in with her former husband. Sixteen days after Kyle’s birth, on August 8, 1989, Father filed a custody complaint requesting shared custody of Kyle. Following a master’s conference on September 1, 1989, another judge of this court confirmed the recommendation of the master granting primary physical custody of Kyle to Amy. Father was granted visitation of baby Kyle on Mondays and Wednesdays from 1 p.m. until 4 p.m. Father later discovered that Kyle was not living with Amy, but rather with her mother, Gloria Muller. On July 11, 1991, Father again filed a custody action naming Grandmother Muller and her husband as defendants, again seeking primary physical custody of Kyle. Father’s request was refused due to a pending protection from abuse petition filed against Father by Amy. Following a hearing, the court dismissed the PFA petition.

On December 9,1991, Father again requested primary physical custody of Kyle and following a master’s hearing, this court affirmed the master’s recommendation ordering Father and Amy to share physical custody of Kyle with Father having one overnight visit each week.

Father filed another custody action on October 18, 1993 requesting primary physical custody. Following a conference before the master, this court’s order dated December 6, 1993 continued the parties’ status of sharing physical custody with Father receiving additional partial physical custody two weekends a month and four weeks during the summer.

Father and Amy divorced on March 21, 1995. On August 23, 1995, Father again petitioned for a modification of his custody rights, and on October 6,1995, this court affirmed an agreement reached at a master’s conference between the parties. The next year, on September 6, 1996, Father again filed a petition for modification of custody, this time naming Grandmother as an additional defendant and requesting primary physical custody of Kyle. Following a master’s conference, by order dated October 23, 1996, this court issued an interim order expanding Father’s partial physical custody to three weekends a month in addition to the four weeks in the summer. On January 12, 1998, Father petitioned for an evidentiary hearing to finally determine custodial rights. We heard testimony on May 27,1998 and on June 24, 1998, after which the record remained open to receive a report of a therapist who was seeing Kyle. This report was never filed.

In the interim, Father met Cindy, his present wife, while they were employed together at Wordsworth, a residential school for troubled youths, and they were married Valentine’s Day, 1999. Following the marriage, Father moved into Cindy’s house where they currently live with Cindy’s children, Krystal and Scott. In response to Father’s relationship with Cindy, Grandmother filed a petition to have the court again reopen the record in this ongoing custody dispute to hear new testimony concerning Kyle’s custody arrangement. Following a period of procedural delays, Grandmother and Father filed a joint motion to have the custody matter scheduled as a special trial. This court granted the parties’ joint motion and the trial was conducted on February 29, 2000. We have reviewed all of the evidence presented and the relevant Pennsylvania law, and are now ready to again make a ruling on the issue of Kyle’s custody.

It is well established in Pennsylvania law that in any case determining custody the court’s paramount concern must be for the best interests of the child. Charles v. Stehlik, 560 Pa. 334, 340, 744 A.2d 1255, 1258 (2000); Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 323, 421 A.2d 157, 158 (1980); Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998); R.A.R. v. T.M., 434 Pa. Super. 592, 644 A.2d 767 (1994); Swope v. Swope, 455 Pa. Super. 587, 591, 689 A.2d 264, 265 (1997); Mumma v. Mumma, 380 Pa. Super. 18, 21, 550 A.2d 1341, 1342 (1988), allocatur denied, 524 Pa. 629, 574 A.2d 70 (1990); Morris v. Morris, 271 Pa. Super. 19, 24, 412 A.2d 139, 141 (1979). The Pennsylvania courts have long held that in a custody dispute all other issues are deemed less important than the child’s physical, intellectual, moral, and spiritual well-being. Walkenstein v. Walkenstein, 443 Pa. Super. 683, 691, 663 A.2d 178, 182 (1995); Campbell v. Campbell, 448 Pa. Super. 640, 643, 672 A.2d 835, 836 (1996); Dorsey v. Freeman, 438 Pa. Super. 236, 652 A.2d 352 (1994); R.A.R., 434 Pa. Super, at 594, 644 A.2d at 768; Swope, 455 Pa. Super, at 591, 689 A.2d at 265. Our Superior Court has recognized that “best interests is necessarily a nebular term, rendering itself amenable to neither simple definition nor application . . . ,” Morris, 271 Pa. Super, at 24,412 A.2d at 141, and has cautioned that “[t]he court in a custody dispute should avoid mechanical determinations and focus its analysis on a close scrutiny of all particular facts relevant to determining the child’s best interests.” Wiseman, 718 A.2d at 848. A court determining custody must pursue a broad inquiry into all of the pertinent facts and circumstances surrounding the contesting parties that could affect the child’s well-being. Costello v. Costello, 446 Pa. Super. 371, 374, 666 A.2d 1096, 1098 (1995); Andrews v. Andrews, 411 Pa. Super. 286, 297-98, 601 A.2d 352, 357 (1991), affirmed, 533 Pa. 354, 625 A.2d 613 (1993). Finally, our Superior Court has held that a court determining custody must consider the relevant facts as of the time of the hearing, because the “primary concern in custody matters is not with the past but with the present and future.” Witmayer v. Witmayer, 320 Pa. Super. 372, 382, 467 A.2d 371, 376 (1983). (citations omitted) The parties’ past conduct is only relevant if it will produce an ongoing, negative effect on the child’s welfare. Id.

Three types of custody disputes are recognized in Pennsylvania law: parent versus parent; parent(s) versus the Commonwealth; and parent(s) versus a third party. Cardamone v. Elshoff, 442 Pa. Super. 263, 272, 659 A.2d at 575, 579 (1995). Any person who is not a natural or biological parent is deemed to be a third party for the purposes of settling a custody dispute. Id. at 272, 659 A.2d at 579-80. (citations omitted) In the instant case, the current custody dispute is between Kyle’s father and Kyle’s grandmother, so Kyle’s grandmother is considered a third party. This is an important distinction, because in Pennsylvania the courts have held that in custody disputes between a biological parent and a third party “the parent has ‘a prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party.” Id. at 272, 659 A.2d at 580, citing In re Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977); see also, Charles, 560 Pa. at 340, 744 A.2d at 1258; Walkenstein, 443 Pa. Super, at 687, 663 A.2d at 181; Ellerbe v. Hooks, 490 Pa. 363, 367-68, 416 A.2d 512, 514 (1980), and Hockenberry v. Thompson, 428 Pa. Super. 403, 407, 631 A.2d 204, 206 (1993). While a parent’s prima facie right to custody is not to be interpreted as a property right in the child, it places a procedural burden of evidence on the third party to establish “convincing reasons” why the best interests of the child would be served by awarding custody to the third party. Walkenstein, 443 Pa. Super, at 687, 663 A.2d at 181. Our Superior Court has instructed us that:

“[E]ven before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parent’s side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, then decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.” Hockenberry, 428 Pa. Super, at 407, 631 A.2d at 206; Ellerbe, 490 Pa. at 367-68, 416 A.2d at 514. (citations omitted)

Furthermore, this burden of proof applies to the third party regardless of whether the third party is related or unrelated to the child. Cardamone, 442 Pa. Super, at 274, 659 A.2d at 580. With the foregoing standards in mind, we now turn to the instant case.

Grandmother’s status as a third party necessitates a threshold inquiry into whether she has standing to maintain a custody dispute. Standing is an issue with jurisdictional implications, because a person may only evoke the jurisdiction of a court to enforce civil rights if that person has a real interest in the subject matter or controversy. Campbell, 448 Pa. Super, at 643-44, 672 A.2d at 837. In custody disputes, the traditional principles of standing are modified because “the relevant analysis considers the relationship of the parties asserting standing.” Id. While a third party usually lacks standing in a custody dispute absent a prior dependency adjudication, the requirement of standing is considered satisfied when the third party has gained in loco parentis status. Cardamone, 442 Pa. Super, at 275, 659 A.2d at 581; Walkenstein, 443 Pa. Super, at 687, 663 A.2d at 180. The term in loco parentis refers to a person who puts himself in the situation of assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. Cardamone, 442 Pa. Super, at 275, 659 A.2d at 581. In the instant case, Gloria has obtained in loco parentis status concerning Kyle by virtue of the custody order dated October 23,1996, which awards, inter alia, “shared legal custody” of Kyle to Father, Amy and Grandmother. Grandmother’s in loco parentis status is further supported by the fact that Kyle has been living in her household since 1991. Accordingly, Grandmother has satisfied the standing requirement, and we now turn to our determination of what would serve Kyle’s best interests.

In Costello, our Superior Court held that a judge determining custody should consider the character and fitness of the respective parties, the type of home they can offer, and their ability to financially provide for the child. Id., 446 Pa. Super, at 374, 666 A.2d at 1098; see also, Burnett v. Verstreate, 742 A.2d 700, 702 (Pa. Super. 1999) (court determining custody should evaluate each contestants’ lifestyle, home environment, personal relationships, and contact with the child). Thus, we begin by analyzing the evidence presented concerning the character and fitness of the respective parties.

Grandmother is a large, formidable 56-year-old woman. She is retired. She lives in a house in Reeders, Pennsylvania, with her third husband Gregory Muller, whom she married on April 13,1985. He is the owner of Muller Enterprises Inc. which is a machine shop. He is semi-retired. Grandmother takes periodic medications for her thyroid and a tachycardia condition, but is otherwise in good general health. Following graduation from high school, she earned an associate degree and she is certified as a medical assistant.

The Muller household appears to have a stable lifestyle, with a healthy dose of regimen somewhat balanced by the Mullers’ semi-retired status. Grandmother has diligently held Kyle to a rigid schedule of daily activities, including set meal times and designated periods for Kyle to work on school homework. It is apparent that she spends as much time with Kyle as possible and that she wants to participate in as much of Kyle’s life as possible. In addition to mealtimes and family activities with Kyle, she takes an active interest in Kyle’s personal activities. During the years that Kyle was a Cub Scout, she served as the leader for Kyle’s den. Now that Kyle has become a Boy Scout, she is training to become his Boy Scout troop leader and, in addition, plans to accompany the troop on all camping trips. While Kyle was enrolled in a small, private school through second grade, she became an administrative assistant to the school’s owner/director.

Kyle is doing well in school, earning mostly A and B grades on his recent report cards. We are troubled, however, by Grandmother’s testimony that she is willing to periodically take Kyle out of school to join the Mullers for trips and vacations, often on very short notice. Kyle missed the first week of school last year to go with the Mullers to the Jersey Shore. Grandmother testified that she would not hesitate to take Kyle out of school again this year to go on another trip, even though as of our hearing, no trips had yet been finally planned and there were only three months of school left in the current school year. While Grandmother insisted that the primary goal of the trips was to provide educational experiences for Kyle, on cross-examination she admitted that the timing of the trips is determined largely by the presence of certain types of fish to meet Mr. Muller’s avid fishing interest.

Grandmother testified that she is committed to maintaining Kyle’s mental and physical health, and her interest is apparent in the activities that she helps Kyle pursue, and in the meals that she prepares for him. Kyle enjoys a substantial diet at the Muller household, consisting of items such as pancakes, oatmeal, cereal, beef, pork, chicken, turkey, rice, noodles, potatoes, vegetables and desserts. Grandmother testified that Kyle enjoys swimming and cycling, and that he has recently begun to ski. We are concerned, however, by her apparent lack of concern for Kyle’s weight problem, and that she may be acting to prevent Kyle from participating in team-oriented sports such as football, basketball, and soccer. She testified that Kyle had told her that his father had refused to permit Kyle to play in these sports. On cross-examination, however, Grandmother admitted knowing that Father did not refuse to allow Kyle to participate. Perhaps most revealing was her testimony that she does not “subject” Kyle to football or soccer. Grandmother’s “subjected to” phrasing is consistent with Father’s assertion that she has prevented Kyle’s participation by refusing to give Father the necessary permission forms and paperwork. We are also troubled by Grandmother’s blasé dismissal of any suggestion that Kyle might benefit from therapeutic counseling, even though on at least one occasion Kyle has expressed a desire to commit suicide, and in the past has been violent and self-abusive.

From the testimony and evidence presented at our hearing, it is clear that Grandmother is devoted to Kyle and that she will go to great lengths to spend time with him and to ensure that all of his material needs are satisfied. This was best expressed by Wanda Lasher, the wife of Grandmother’s first husband, who first testified on behalf of Father but changed sides and later testified on behalf of Grandmother. In her words: “Gloria’s there for Kyle’s every want and need.”

The court-appointed psychologist, Dr. John Abbruzzese, found that Grandmother was a generally well-adjusted person and that she has a high capacity for tolerance and open-mindedness. Dr. Abbruzzese’s evaluation, April 21, 1998, defense exhibit 4. Although Dr. Abbruzzese found that Grandmother’s sense of self-worth may at times be overly dependent upon others, he concluded that she appears to have the necessary qualities to be a loving and caring parent who will keep Kyle’s well-being as her primary goal. Id.

Father is 35 years old and following his graduation from high school he has worked a variety of jobs, most recently at Wordsworth School as a maintenance employee. He has been active in the Army National Guard for over eight years and he has attained the rank of sergeant. Although he was unemployed as of our hearing, his former supervisor testified that Father’s layoff in January of 2000 was merely part of an overall staff reduction at Wordsworth and was not a reflection on Father’s performance. The supervisor also related that Father had always conducted himself professionally during the three years that they had worked together. Father testified that he is actively seeking new employment, and that he is confident he will soon find a suitable position. He married Cindy on February 14, 1999, and the Bergers live together in a house along with Cindy’s children Scott and Krystal. Father testified that he takes no regular medications and that he enjoys generally good health.

The Berger household appears to have a healthy and stable lifestyle, with a busy pace that is normal for modem families. Father and Cindy apply firm but fair discipline standards to encourage adherence to the family’s rules, and the standards and rules apply equally to Kyle, Scott, and Krystal. The Bergers have developed non-violent discipline techniques, including taking away a privilege such as television viewing or a late bedtime. The disciplined child is then allowed to earn back the privilege through a period of good behavior.

Father shares many activities with Kyle, including building model airplanes, shopping, riding bicycles, and taking walks in the park. Father and Kyle also share some of the family chores such as raking leaves and doing yard work. Although Father’s commitments to each of the members in the Berger family have lessened the amount of time that he spends with Kyle alone, the Berger family environment allows Kyle to also share time with Father in conjunction with Cindy, Scott, and Krystal. Last year the Bergers brought Kyle, Scott, and Krystal to the Philadelphia Zoo, and the family went on a summer vacation trip to Disney World. Father takes an active interest in Kyle’s school performance, activities, and Boy Scout events, and Father testified that only communication problems between himself and Grandmother have prevented him from becoming even more involved with Kyle’s life.

The Berger’s commitment to maintaining Kyle’s physical and mental health is evidenced by their concern about Kyle’s weight problem. The Bergers point to the 10-year-old’s 38-inch waist size, and assert that Kyle cannot run even one hundred feet without being out of breath. The Bergers generally serve low-fat meals such as turkey burgers, chicken, calzones, grains, fresh vegetables, and pasta dishes. In addition, the Bergers encourage Kyle’s involvement with activities and sports that will help Kyle to exercise. Father and Cindy are very active in karate activities, and they have encouraged Kyle to become involved, stressing that it will help Kyle to develop physical strength, self-respect, and mental discipline. Father testified that he supports Kyle’s participation in team sports such as football, basketball, or soccer, and that he is willing to reschedule his karate activities in order to ensure that Kyle may pursue team sports.

Both of the Bergers agree that Kyle would benefit from receiving therapeutic counseling, and it was Father who arranged for Kyle to receive counseling following Kyle’s expressed intention to consider suicide. The Bergers testified that Kyle can be disrespectful and selfish to people around him, and that Kyle’s attitude usually improves after he has been with the Bergers for a few days. The Bergers stress an environment of mutual respect in their household, and they have sought to adjust Kyle’s behavior through use of non-violent discipline, in addition to teaching Kyle improved communication skills.

It is clear from the evidence and testimony that Father sincerely loves Kyle, and is committed to taking the steps necessary to ensure Kyle’s intellectual, physical, and moral well-being. Father has worked to improve the quality of his life so that he may provide Kyle with a healthy parenting environment. The court-appointed evaluator Dr. Abbruzzese found that Father enjoys the company of children, and that he gets a great deal of emotional support from being a father. Dr. Abbruzzese’s evaluation, April 21, 1998, defense exhibit 4. Although Dr. Abbruzzese found that Father’s communication skills are somewhat limited, and that he may have trouble effectively dealing with disciplinary issues, the doctor con-eluded that Father “understands the appropriate roles of both parents in rearing children,” and that “Mr. Berger is apparently attempting to offer the best he can for the welfare of Kyle Adam.” Id.

Both parties agree that many of the problems that have arisen concerning the shared custody of Kyle are the result of the parties’ collective inability to communicate without recrimination or acrimony. Father testified that Grandmother regularly fails to provide him with important paperwork that Kyle brings home from school, such as grade report cards and permission slips to allow Kyle’s participation in team sports. He also testified that she often does not give him any advance notice of upcoming important events in Kyle’s life, which has caused him to miss some of Kyle’s proudest moments due to scheduling difficulties. Grandmother testified that communications with Father have been very strained since she confronted him concerning Father’s timing when picking up Kyle. Following a period when Father would arrive to pick up Kyle a little early or a little late while on his way home from work, she ordered Father to pick up Kyle at exactly 5 p.m., as specified in the custody order. Grandmother and Cindy both testified that they do not speak to each other. Grandmother, who refers to Cindy as “Cynthia,” felt insulted by an informal introduction by Father over a year ago. There is no doubt in the court’s mind that Kyle’s best interests will be served by all of the adults in Kyle’s life making a concerted and sincere effort to improve their overall communication skills and accept each other as an important person in Kyle’s life.

Under Costello, supra, we next turn to an examination of the type of living environment that each of the parties offers to Kyle. The Muller home is located in Reeders, Pennsylvania, and is a ranch style house situated on 12 acres of land. There are eight rooms including four bedrooms in the house, allowing Kyle to have his own bedroom. Outside the house there is an above-ground swimming pool and a tree house in a nearby tree. The only person living in the Muller house with Grandmother and Kyle is Gloria’s husband, Gregory. Although Mr. Muller was not called as a witness, Grandmother testified that Kyle and her husband get along well. Kyle’s natural mother, Amy, lives in a mobile home on the Muller property. Grandmother testified that while Amy visits Kyle, she is content to have Grandmother provide most of the care for Kyle, and that Amy’s overall involvement with Kyle has been minimal. Amy did not testify nor was she represented by counsel.

The Berger home is located in Kunkletown, Pennsylvania, where Father and Cindy live with Scott, Krystal, and Kyle. There are two bedrooms available for the children, and Scott and Kyle are currently sharing a bedroom to allow Krystal to have her own room. During our in-chambers talk with Kyle, he indicated that he did not mind sharing a bedroom with Scott. Nonetheless, Father testified that the Bergers have a full-sized basement that is clean, dry and finished, and that they are considering installing a new bedroom for Kyle in the basement.

Because of the closeness of the Berger family unit, it is important that we also analyze Kyle’s relationship with Cindy, Scott, and Krystal. Cindy is a teacher certified to work with seriously emotionally disturbed children. She has a black belt in karate, and she places a high value on respect for others, as well as on the emotional and physical well-being of her family. She does not impress us as being easily intimidated. Although it has taken a while for Kyle to feel comfortable around Cindy, their relationship has grown stronger over the year since she and Father were married. During the Berger’s Disney vacation, Kyle referred to Cindy as “mom.” Cindy has accepted Kyle into her family, and she testified that she treats Kyle the same as her own children.

Scott is 7 years old, and is an autistic child who has had periodic outbursts of screaming and hyperactive behavior, although Cindy testified that Scott appears to have outgrown these problems in the last nine to 10 months. Father and Cindy testified that Kyle has taken on a role as a big brother to Scott, and that both children have benefited from the relationship. Scott has become more stable, and Kyle has increased his ability to share while gaining satisfaction from helping with Scott’s development. Krystal is 11 years old, and her relationship with Kyle is characterized as being normal for young siblings of the opposite gender. Kyle and Krystal often tease each other and argue, but just as often the two are playing together amicably or sharing the television.

Under Costello, supra, we next need to analyze the parties’ ability to financially provide for Kyle’s well-being. The Mullers appear to be very comfortable financially. The Bergers are facing some current financial challenges due to Father’s layoff. In addition, Cindy was terminated from her full-time teaching position at Wordsworth due to budget cutbacks that caused Wordsworth to terminate their entire teaching staff. Nonetheless, the Bergers testified that they are “making ends meet,” because Father is collecting unemployment insurance and Cindy is working in two schools as a substitute teacher. Father and Cindy are both actively looking for new full-time work, and their respective job histories indicate that both should be successful in locating a suitable new position. In Hernandez, the court held that “[financial discrepancies between the parents and a third party are not sufficient reason to deprive the parents of custody.” Id., 249 Pa. Super, at 299,376 A.2d at 661. (citations omitted)

We now turn to an analysis of the parties’ ability to provide a stable environment for Kyle, because the Pennsylvania courts have long recognized that “continuity and stability are important elements in a young child’s development.” Witmayer, 320 Pa. Super, at 382,467 A.2d at 376; see also, Hernandez, 249 Pa. Super, at 296, 376 A.2d at 660; and Fisher v. Fisher, 370 Pa. Super. 87, 93, 535 A.2d 1163, 1166 (1988). Our Superior Court has held that “[i]n custody decisions the court must consider the importance of continuity in the child’s life and the desirability of development of a stable relationship with established parental figures and known physical environment.” Wiseman, 718 A.2d at 850, citing Gerber v. Gerber, 337 Pa. Super. 580, 487 A.2d 413 (1985). The Hernandez court also noted the importance of stability to a child’s welfare, and held that it is always “essential to consider how long the child has spent with the third party.” Id., 249 Pa. Super, at 297, 376 A.2d at 660. Nonetheless, a court determining custody “must take into account all of the evidence, including the reasons why the child has been so long with the third party” because the Pennsylvania courts have consistently held that “the fact that a child has been away from a parent for a long time will not by itself defeat the parent’s right to custody.” Hernandez, 249 Pa. Super, at 297, 376 A.2d at 660, citing In re Adoption of Farabelli, 460 Pa. 423, 333 A.2d 846 (1975); Bresnock v. Bresnock, 346 Pa. Super. 563, 500 A.2d 91 (1985); Commonwealth ex rel. Johnson v. Pinder, 217 Pa. Super. 180, 269 A.2d 511 (1970).

In the instant case, Kyle has resided with Grandmother for over eight years, and she has created a stable living environment for him in her household. This is evidenced by Kyle’s bedroom, which is stocked with many of his favorite items, including his television, VCR and video collection. Grandmother testified that Kyle has made friends in the neighborhood surrounding her home, and that he is happy in his current school. During our in-chambers conference, Kyle testified that he has stayed with Grandmother “for as long as I can remember” and that he is very happy living at the Muller home. Although he spends three weekends a month and four weeks in the summer with Father, shifting Kyle’s physical custody to Father on a more permanent basis would bring changes in Kyle’s lifestyle, and would disturb the continuity that Kyle has with the Mullers. A move into the Berger household will mean that Kyle will be living with a new family, in a different neighborhood, and attending a different school.

In Farabelli, the Pennsylvania Supreme Court affirmed the lower court’s grant of custody to the child’s natural father, despite the fact that the 8-year-old child had been living with her maternal grandparents since birth. Farabelli, 460 Pa. at 423, 333 A.2d at 846. The Farabelli court found that the father had remained in contact with the grandparents, had regularly contributed money towards his daughter’s care, and had made major alterations in his lifestyle in order to regain custody of his daughter, which taken together defeated the grandparent’s assertion that the father had voluntarily relinquished his parental rights. Id. at 430, 333 A.2d at 850.

In Bresnock, our Superior Court affirmed the trial court’s award of physical custody to the child’s mother, rather than the paternal grandparents, after the child had lived with them in Frackville for about four years. During that time, Mother had moved to Pittsburgh after the child’s father died and married her older daughter’s father. The trial court found that the homes of both parties were adequate; that the mother’s new husband had an adequate income; that mother provided a comfortable home; that the child and her half-sister got along well together; and that mother and new husband had a normal marital relationship. The trial court also found that mother’s employment as a go-go girl and the violent and abusive relationship she endured with the child’s father was in the past and not relevant to the current custody proceedings.

The facts in the instant case are very similar to those in Farabelli and Bresnock, because Kyle has resided with his maternal grandmother, Gloria, for eight years. In addition, Father overcame many obstacles to remain in contact with Kyle since Kyle’s birth. Kyle was bom on July 23,1989. Just sixteen days later, on August 8,1989, Father filed a custody action requesting shared custody of Kyle: a status that he eventually was granted, and which continues into this proceeding. Father has worked to improve his life to be more compatible with Kyle’s best interests, and his marriage to Cindy has resulted in more stable living arrangements for Kyle and an opportunity for Kyle to experience a family environment with siblings.

We find that Father’s ongoing interest and regular contact with Kyle during Kyle’s life will mitigate the potential disruption in Kyle’s stability caused by a transfer of primary physical custody to Father. In addition, Grandmother testified that several of the boys in Kyle’s scout troop attend the same school that Kyle would attend if Father is awarded physical custody of Kyle. These familiar faces would help Kyle adjust to a new school environment. Also, even if Kyle were to remain in the school district he is in now, he will still change location, buildings and classmates this year, when he moves from fifth grade to sixth grade. Finally, under Witmayer, supra, we are reminded that the primary concern in custody matters lies not with the past, but with the present and future. Despite anything in the past, it appears that Father and Cindy are presently building a stable home that is likely to provide substantial continuity for Kyle in the future.

Another issue that needs to be addressed is the fact that Father and Grandmother belong to different religious faiths. Grandmother is of the Catholic faith, while Father is a Baptist. Our Superior Court has held that a determination of a child’s best interests should include an analysis of “the stability and consistency of the child’s spiritual inculcation.” Morris, supra at 24, 412 A.2d at 141-42. Our inquiry into the religious issue does not involve any judgments concerning the relative worth of the two religious faiths, but rather is limited to considering what effect the disparity in the parties’ faiths will have on Kyle’s well-being. The Morris court explains that:

“It would be an egregious error for our courts in a custody dispute to scrutinize the ability of the parents to foster the child’s emotional development, their capacity to provide adequate shelter and sustenance, and their relative income, yet not review their respective religious beliefs. One need not concur with the biblical injunction that man’s needs exceed the simple requirements of the body to acknowledge the impact of religious instruction. Quite apart from any concern with the child’s spiritual salvation — and we readily acknowledge the inadequacy of a legal forum to resolve which, if any, creed is superior in effecting that goal — it is beyond disrepute that a young child reared in two inconsistent religious traditions will quite probably experience some deleterious physical or mental effects.” Id. at 24-25, 412 A.2d at 142.

The Morris court carefully analyzed whether a custody court is constitutionally capable of factoring religion into the best interests determination, and concluded that the religion factor is permissible so long as the court is only analyzing the tangible effects on the child’s well-being caused by the disparity in the contestants’ faiths. Id. at 29, 412 A.2d at 146-47.

During our in-chambers conference, Kyle told us that he has been subjected to some uncertainty surrounding his religious faith, both because Grandmother and Father belong to different faiths, and because of their problems communicating with each other. Specifically, Kyle related that for a period of time Grandmother told Kyle to hide his Saint Jude’s medal in his sneaker while visiting Father, because Kyle became convinced that Father did not like Catholics, even though he had married Cindy, who is Catholic. When Kyle finally showed his medal to his Father, Father told Kyle that he did not dislike Catholics, and that Kyle was free to pursue the religion of his choice. Kyle told us that he is willing to keep an open mind concerning religion, and that although he thinks of himself as being Catholic, he is willing to accept that his father’s religion is Baptist. It appears that Father and Grandmother have avoided using religious faith as a weapon against each other, and that each person’s acceptance of the other’s religious freedom will serve to minimize any potential negative effects on Kyle’s well-being stemming from the contestants’ religious disparity.

Finally, we turn to an analysis of the desires expressed by Kyle concerning his custody. While the express wishes of a child are not controlling in a custody dispute, Pennsylvania courts have consistently held that a child’s wishes “constitute an important factor that must be carefully considered in determining the child’s best interests.” Myers v. DiDomenico, 441 Pa. Super. 341, 346, 657 A.2d 956, 958 (1995), citing McMillen v. McMillen, 529 Pa. 198, 202-204, 602 A.2d 845, 847 (1992). The Pennsylvania courts have noted, however, that the child’s preference must be based on good reasons, and that the child’s maturity and intelligence are factors that must be considered by the court when determining a weight to be accorded to the child’s preference. Cardamone, 442 Pa. Super, at 278, 659 A.2d at 583; Witmayer, 320 Pa. Super, at 381,467 A.2d at 376; Albright, 491 Pa. at 327, 421 A.2d at 160; Myers, 441 Pa. Super, at 346, 657 A.2d at 958; Swope, 455 Pa. Super, at 592, 689 A.2d at 266.

In the instant case, Kyle has expressed a desire to remain with his Grandmother, but several factors lead us to give little weight to this stated preference. First, Kyle is only 10 years old, and during our in-chambers conference, Kyle did not impress us as having obtained any maturity beyond his years. To the contrary, Kyle’s answers to the court’s inquiries indicated that Kyle still has a great deal of maturing to do, and his responses appeared to be motivated by a desire to appease his Grandmother. It was apparent that Kyle was seeking to protect the limited security that he has thus far by not saying anything that might offend or endanger his ability to stay with the Mullers.

Further, during our in-chambers conference when we asked Kyle to explain his statement that he doesn’t feel welcome at his father’s house, Kyle responded: “because he hurts me.” However, when Kyle was asked to explain how he was hurt, Kyle’s only explanation was that one time Father thought Kyle was going to walk in front of an oncoming car, and he grabbed Kyle away, leaving a mark on Kyle’s arm. When Kyle was asked who he admires most, Kyle stated that he wants to be like the Mullers because “they are cool. . . they do things that normal people don’t do,” such as fishing and travel. As might be imagined, Kyle particularly likes the fact that the Mullers are willing to take him out of school to travel with them. These responses indicate that Kyle has not yet developed a broad enough perspective for us to accord much weight to his preference, and that Kyle is still unable to perceive that some experiences which are not particularly enjoyable are often the most important for a person to become healthy, balanced, and educated. We saw Kyle twice, a year apart. In our first interview, he was rude, arrogant, flippant and not a very likeable kid. In our second interview, a year later, he was less arrogant but still not focused and could not give us any intelligent or reasonable explanations for a lot of his statements. He would talk about one thing and suddenly switch to another. In his report, our court-appointed psychologist found that “Kyle had found himself in a position of control and possible manipulation.” Dr. Abbruzzese’s evaluation, May 13, 1998, defendant’s exhibit no. 4. Further, Dr. Abbruzzese suggested “that Kyle may benefit by having a person available to him who may assist him in objectively reviewing his feelings and assisting him further in coping with the struggles within his total family relationship.”

Having reviewed all of the testimony and evidence presented, we conclude that both Grandmother and Father possess the character and fitness to fulfill parental responsibilities for Kyle. Both parties have the financial ability to provide for Kyle, and both parties reside in a stable home with adequate space to provide a suitable living environment. Both care for him and share many activities with him. Although Grandmother currently enjoys more financial stability, and has had Kyle living with her for over eight years, Father has remained in constant contact with Kyle over his lifetime and is presently able to offer him a stable family environment.

We find that Kyle’s interests would be well served by an award of physical custody to either party, however, under the law of our Pennsylvania appellate courts that we have researched and cited, we hold that Grandmother has not established sufficiently convincing reasons to satisfy the heavy evidentiary burden placed on her as a third party challenging a natural parent for custody. John Berger is Kyle’s natural father, and accordingly, John’s prima facie parental rights mandate that he be awarded primary physical custody of Kyle. We also find, after a review of all of the evidence presented, that it would be in Kyle’s best interest to be with his Father. For the foregoing reasons, we hold that primary physical custody of Kyle is to be transferred to his Father, John Berger.

We further find that the conduct of the parties and others involved in the case during this transition will be critical to Kyle’s well-being. The tension between Grandmother and Mrs. Lasher, Kyle’s step grandmother, on one side, and the Bergers on the other side was very apparent in the courtroom. We remind everyone that Kyle is not a prize to be won. Recent national events have made the general public aware of the family politics that are part and parcel of every custody matter that our courts hear. It must be remembered that Kyle’s self-respect and his respect for others will be learned by his watching those around him. This transition can occur with the adults taking the high road of civility or they can continue the petty behavior that has hung over Kyle’s head all these years. Only one thing is certain, Kyle will be watching and listening to it all.

ORDER

And now, May 24, 2000, it is ordered as follows:

(1) Primary custody of the minor child, Kyle Adam Berger, shall be with his Father, John Berger, Jr.;

(2) Grandmother, Gloria Muller, shall have partial physical custody the second weekend of each month from Friday after school until Sunday evening at 7 p.m. during the school year and from noon on Friday until 9 p.m. Sunday during the months of July and August. In the event Father’s Day occurs during the second weekend in June, then she shall have partial physical custody the third weekend of that month. Nothing in this order shall be construed to mean that Kyle cannot participate in activities or sports during these periods of Grandmother’s partial physical custody;

(3) Grandmother shall also have one week of partial physical custody each summer. Grandmother shall give at least thirty (30) days notice of the week selected to Father in writing. In the event that Kyle attends a one-week Boy Scout camp and Grandmother attends as his scout leader, this shall not constitute her period of partial physical custody;

(4) Kyle shall complete fifth grade in his present school;

(5) This order shall supersede all previous orders in this case.

      . Kyle told us in chambers that a fishing trip was planned to Costa Rica over the Easter holidays but Grandmother would neither confirm nor deny this.