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HomeMy WebLinkAbout01-6033 CIVILRICHARD MISLITSKY, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA JUDITH MISLITSKI, DEFENDANT 01-6033 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., February 22, 2002:-- Richard Mislitsky, age 48, and Judith Mislitski, age 46, are the parents of Kristen Mislitski, age 16, born May 26, 1985, and Alexa Mislitski, age 13, born November 2, 1988. This is a first marriage for both parents. They separated at Thanksgiving 2001. The mother moved to a two-bedroom condominium in Carlisle, Pennsylvania, about three miles from the four bedroom marital house in Mt. Holly Springs, Pennsylvania, where the father remained. Both homes are in the South Middleton School District where Kristen is a junior in high school and Alexa is in seventh grade. The father, an attorney for twenty-two years, is a solo practitioner in Carlisle. The mother is a high school art teacher in the South Middleton School District. She did not work outside of the home for five years after Alexa was born. She started substitute teaching four to five years ago and has been a full-time teacher for three years. For the upcoming 2002 summer vacation period she plans to take at least one graduate course toward her permanent teaching certification, weekdays from 8:00 a.m. to 3:00 p.m. 01-6033 CIVIL TERM On December 10, 2001, an interim order was entered following conciliation, whereby the father had his daughters in alternate weeks, Thursdays from after school to the following Tuesday morning, and Wednesday from after school to Thursday morning. A custody hearing was scheduled for February 21, 2002. Shortly after Christmas, the parents, for the convenience of themselves and the children, privately altered the temporary schedule so that the father has the children for a continuous period of six days out of every fourteen. The transfer day is a Thursday after school. The custody hearing was conducted on February 21st. These intelligent and able parents have raised two good, bright, sociable, well- adjusted daughters. The mutual love between the children and their parents is apparent. Both girls are in good health although Kristen suffers from some headaches. After diagnostic tests, her physician believes that the primary problem is stress. The frequency of the headaches had recently decreased. Both girls do well in school. Both have chores in the homes of each parent. Both present no significant disciplinary problems to either parent. Neither child perceives that they are having any serious difficulties. Each parent acknowledges that the other is a good parent, although the mother appears to have a more relaxed relationship with the girls. Both parents are actively engaged in all aspects of their daughters' lives. Kristen drives back and forth to her high school. Alexa either is driven to school or uses a school bus. Both girls like athletics, and their father has coached some of their teams. This spring both will be playing soccer. Their practices will be after school -2- 01-6033 CIVIL TERM and last to approximately 5:30 p.m. When there is a game it will last to approximately 7:00 p.m. The father seeks shared alternate week custody with transfers on Sunday, although the current schedule is acceptable to him. The mother believes that ideally she should have primary physical custody, with the father having the children on alternate weekends and additional flexible times, although the current schedule is acceptable to her with a change requested by the children. That change being on school nights when they are now at the father's home, that they be allowed to return late in the evening to their mother's home before going to school the next day. The mother is willing to try this arrangement even though she does not believe it is ideal. The father is opposed. The children expressed their desire in chambers. Kristen said: A I think it's a hassle .... I like spending time with my dad and my mom, but I don't like to move every week. Like, that's the main problem that I'm having because I have to move on - like, I have to move every week. Like, my dad tried to say - like, tried to have the same stuff in both houses but, like, I don't know, like - but I guess it's not possible for me. You can't duplicate pictures and pictures frames. Well you can duplicate pictures. You need to have one home base place, you know, and I don't have that. I have two, my mom and my dad's house, and I don't like that. Q Would you rather have one? A Yeah, I want to have one, like, I can keep all my stuff at and I don't have to move as much. That's why I wanted this new plan. Q What would you get by going back to the house at night and then going to school the next day as far as not moving stuff? How are you saying - A I'll get ready and stuff at my mom's house and then, like, I -3- 01-6033 CIVIL TERM will have to probably take a pair of shorts and soccer stuff and then I'll just go right to my dad's house so I don't have to pack anything, you know what l mean. Q And then at the end of the night go back to your mom's and stay? A Yeah. Alexa said: A Yes, I want to change it. It's okay, but I hate packing my stuff up for, like, six days in a row and just, like, going there because I don't really - it's not that bad but most of all, like, it confuses my friends and everything, like, they don't know where I am when they want to find me or something so it's kind of hard. Q So it is the packing up and back and forth? A Yeah. Suffice it to say, both of these delightful girls are classic American teenagers. A custody order must be in the best interests of the children, and is to be premised upon consideration of all factors that legitimately affect the children's physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381 (1995). The preference of a child in a custody case, although not controlling, is a factor to be considered as long as it is based on good reasons. EAL v. LJW, 662 A.2d 1109 (Pa. Super. 1995). In considering a preference, a child's maturity and intelligence must be considered. Commonwealth ex tel. Pierce v. Pierce, 493 Pa. 292 (1981). In In re: Wesley J.K., 299 Pa. Super. 504 (1982), the Superior Court of Pennsylvania, stated that both parents must be fit and capable of making mature child-rearing decisions, they must be willing to provide care and love for their children, they must express a desire for the continued active involvement in their children's lives, that the -4- 01-6033 CIVIL TERM children must recognize both parents as sources of love and security, and that a minimal degree of cooperation between the parents is necessary in order to award shared custody. All of the elements in support of a shared custody order are present in this case. While shared custody presents some inconveniences for children, as any custody order does, it provides a viable means of maintaining a strong, loving relationship with both parents. Here, there are two good parents and two good daughters. There is stability in both homes. The parents live three miles apart in the same school district. The parents are capable of communicating with each other in the best interests of their children,~ and both have the best interests of their children at heart. The disruption to the children arises in their going back and forth between their parents' homes, despite the fact that the father has clothing for them in his home, and is exacerbated under the current schedule in which the transfer day is a school day. It would be more seriously exacerbated by their impractical solution to return to their mother's home, late on school nights, when they are at their father's home. It makes much more sense to have the transfer on a weekend with an alternate week schedule. This arrangement is in the best interest of each child as it should provide more stability for them in the home of each parent. For the foregoing reasons, the following order is entered. ~ Nonetheless, the father should take a heartfelt lesson from the testimony of his wife as to how their communication is affected when she does not agree with him, or he does not immediately get what he wants. -5- 01-6033 CIVIL TERM ORDER OF COURT AND NOW, this day of February, 2002, IT IS ORDERED: (1) The temporary order of December 10, 2001, IS VACATED. (2) Richard Mislitsky and Judith Mislitski shall have shared legal custody of Kristen Mislitski, born May 26, 1985, and Alexa Mislitski, born November 2, 1988. (3) Richard Mislitsky and Judith Mislitski shall have shared physical custody of Kristen and Alexa on an alternate week schedule, with a transfer each Sunday at 7:00 p.m. (4) Each summer the parents shall arrange a three-week continuous period in which the children are with each parent. (5) The parents shal make special arrangements for school holidays with the best interest of the children ~n mind. By the Court, Edgar B. Bayley, J. Carol Redding, Esquire For Plaintiff Kathleen C. Daley, Esquire For Defendant :saa -6-