A Case That Signals How Unpredictable Custody Cases Are
The Superior Court ruling on December 9 affirming a trial court decision to change primary custody from mother to a father “with history” demonstrates how far father’s rights to children have come and also torpedoes the still lingering trope that moms keep the kids.
Bonilla v. Bonilla is the kind of case that father’s counsel probably did not expect to win. We have to tread carefully in making such a conclusion because custody litigation is always a wild card. Every lawyer has had a case where the “nice” parent becomes a hot mess in the witness box or where the case starts to turn on facts the lawyer never saw coming. You can never have a command of all the facts in a custody case because the evidence is evolving 16 hours each day; seven days each week.
Nelson and Ashley Bonilla were married in 2009 and brought forth boys between 2011 and 2016. They separated roughly a year later and were divorced in 2020. By then, each had moved on to new relationships. Mom had primary custody early on. In 2022 father filed for shared custody and secured additional time including shared summers but not equal time. A year later he filed for primary custody.
Dad started this case with a foot in the custodial bucket. He is a disabled veteran who is afflicted with Post Traumatic Stress Disorder and a Traumatic Brain Injury sustained during his military service. There was a history of physical and emotional erratic behavior when he and mother lived together with the children, In 2014 anger issues on father’s part may have caused a landlord to end the family’s lease. There is a history of alcohol problems and, in November 2018 mother secured a Protection from Abuse Order with Father’s consent for a period of six months. The appellate opinion states that there was no finding of abuse. Of course, not many consent orders contain that feature.
So, we start out with a dad who has some emotional issues which send warning flags. Dad now lives 30 minutes away from the children in a different school district. Note also that this primary custody filing comes just a year after the court awarded dad more time. In the typical Pennsylvania courtroom, the greeting this litigant would often receive begins with: “Weren’t you just here?” On the other hand, this could also be a situation where the court already saw mom’s relationship with her boys listing and wanted to test dad with some shared custody before considering an award of more time with the children.
While dad certainly comes with baggage that signals a need to move cautiously, in this case mom was creating her own problems. The children are three boys ages 12, 11 and 7. Mom has a job that seems fairly demanding of her time. At ages 12 and 11 kids do typically want to spend time with the parent of their gender just so they can observe how to act as an adult man or woman. That’s not to say the examples they see are universally positive and lots of kids this age develop close relationships with a step-parent or live in of their gender because that individual is not wrapped up in typical parenting conflicts.
As noted, mom has her own baggage. It’s clear that she and dad don’t get along and her control included prohibiting the kids from talking with their father when it is not his custody time. Worse, the opinion reflects that mom’s boyfriend has joined in the fray and when he gets frustrated with the boys, he feels entitled to inflict physical punishment. Two big custody rules are violated here. Communications between children and parents should be open and frequent except when it becomes obsessive (e.g., kids on phone with a parent for long periods or constantly or to appeal the custodial parent’s decision). Second, step-parents are not substitute parents and while they may have to intervene like a parent from time to time (e.g., kids fight or actually insult the step-parent), the response must be non-physical, corrective and limited). In this case the clear implication is that mother and her live-in didn’t get the message and were not recognizing that 11 and 12 year olds need to start to have the power to control things like parent communication.
The two elder children were interviewed and did what most kids that age do; name, rank, serial number. Be polite to the judge and tell the judge 50/50 seems fair. Meanwhile, a smart judge can sometimes read far more into a child interview than the transcript will ever reveal. Kids that age will identify a problem but then say it’s not a problem. In most law cases, lawyers dream of well scripted answers to questions that don’t sound scripted. Custody cases proceed in the same way procedurally, but these cases are often more about the vibe than any specific set of facts. And in all too many cases the vibe is that mom and dad hate each other and don’t see the problems that hatred creates for their kids.
In this case, mom’s custodial ship sank in the waters of over control and failure to manage the involvement of her significant other. Father was awarded primary custody conditioned on moving into the district where the kids attend school. The Superior Court affirmed because it had well-reasoned opinion which was supported by the facts. Again, a generation ago a PFA order and a history of substance problems and psychological disorder would have made a win for dad impossible, But the opinion finds that while dad has and had problems, he seemed willing to course correct; something mother did not demonstrate.
The opinion: