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HomeMy WebLinkAbout95-1072 CIVILCINDY L. McCLUCAS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ELMER K. McCLUCAS, Defendant 95-1072 CIVIL TERM IN RE: CUSTODY BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., March 28, 2002:-- Cindy L. McClucas-Herman and Elmer K. McClucas were married on June 16, 1993. They separated in October 1994 and were divorced on August 9, 1995. They are the parents of Tyler McClucas, age 10, born July 5, 1991, and Tashia McClucas, age 9, born July 16, 1992. The father remarried in 1997. He and his wife, Jennifer, have two sons, Brandon, age 4, and Joshua, age 2.1 They live in a house in Mechanicsburg. The mother now lives in Carlisle. On July 31, 1995, the parents signed a custody agreement that was entered as a court order. The mother had primary physical custody and sole legal custody of Tyler and Tashia. The father exercised temporary physical custody every other weekend from Friday evening until Saturday evening. The mother moved away with the children 1 This is the father's third marriage. He has a son, Adam, age 15, who lives with his mother in Hummelstown, Dauphin County. 95-1072 CIVIL TERM in the later part of 1995 and did not tell the father where she was. He did not then see the children until the spring of 1998. At that time, the mother took a job as an over-the- road truck driver. She asked the father to take care of the children, and on April 29, 1998, the parents entered a written agreement: I Cindy L. McClucas Herman, give E. Keith McClucas primary physical custody of Tyler James McClucas & Tashia Marie McClucas for at least one year. Under the following conditions. We must consider the children's best interest. I will have unlimited visitation under mutal (sic) agreement of both parties. Children will be permitted to see family members as mutualy (sic) agreed upon. I will give Keith my '87 Chevy Conversion Van & $500 in payment of child support for 14 mths. Keith agrees not to request any child support until at least July 1999. Both parties agree that Keith will claim Tyler on 1998 taxes. And Cindy will claim Tashia for taxes 1998. These agreements are to be in the best interest of the kids & are subject to change due to that reason. The children were attending kindergarten in the Susquenita School District in Perry County when they started living with the father.2 The father kept them in that district for the remainder of that school year. He enrolled them in the Mechanicsburg School District in the fall of 1998. The children attended first, second, and third grade in Mechanicsburg. They did fairly well in school. In the second grade, Tyler was placed in a special education program because of difficulty with written language. He is diagnosed with ADD, for which he is prescribed Ritalin. The mother was having periods of temporary physical custody when she returned from work trips. She testified that these periods were generally for several days every other week, although there were times that she missed. She kept in regular telephone contact with her children. Tyler was repeating kindergarten. -2- 95-1072 CIVIL TERM The father testified that the mother saw the children less frequently. At one point during this arrangement, the mother sent the father and his wife the following letter: I wish that saying Thank You, would cover how much I apreciate (sic) what your (sic) doing. Those words could never tell you how much it's meant. You have made it easy for me to adjust to this situation. It means a lot to me that your (sic) able to stay home with the kids & that they don't need a sitter. They seem to be doing so well. They have been through so much. They just need some stability. I'm so glad you were there when we needed you. I know there (sic) in good hands. I have no regrets on my decision. No one could ever know my inner pain. It's not like it use to be. You've taken a lot of that away. Thank you so much. In February 2000, the mother took a job driving for a local employer. She works Tuesday through Sunday from 2:00 p.m. through 6:00 p.m. She lives in a house on her employer's property. When she took this job, she began regularly having Tyler and Tashia every other Friday evening through Sunday evening. On September 7, 2001, the mother picked the children up for a weekend. She testified that she saw a mark on Tyler's lip. She asked Tyler what happened, and he said that his stepmother had punched him in the mouth. The mother called the father and told him that she was not returning the children to him. She testified that he said, (1) come and get their belongings in two hours, (2) he never wanted to see them again, (3) his marriage was shot, and (4) his wife was moving to New York. The father testified that when the mother called him, and told her what Tyler had said, he told her that it was absurd to think that his wife had punched Tyler in the mouth. He told the mother that if she did not return the children he would seek a court order for custody. He allowed the mother -3- 95-1072 CIVIL TERM to get the children's belongings. She took the van she had let him use.3 The mother removed the children from the fourth grade in the Mechanicsburg School District, and enrolled them in the South Middleton School District, where she lives. She would not let the father see the children except for a one day visit in November. The father filed a petition seeking primary physical custody on November 15, 2001. On December 31, 2001, following a conciliation conference, a temporary court order was entered providing the father and mother shared physical custody on a week on/week off basis. Both parents now seek primary physical custody. The father is a mechanic for Pensky Truck Leasing. When the mother left the children with him in April 1998, he was working an 11:30 p.m. to 7:30 a.m. shift. His wife was not working. He now works weekdays from 4:30 p.m. to midnight. On the weekend he has the children, he picks them up at 9:00 a.m. on Saturday, and goes to work from 10:00 p.m. to 3:00 p.m. He testified that if he is awarded primary physical custody, his employer will allow him to work a daytime shift. Jennifer McClucas now works weekdays from 8:00 a.m. to 4:30 p.m. as a private duty nurse for the Pinnacle Health System. She testified that she never struck Tyler in the mouth. The incident in September involved Tyler lying to her. She pushed his lips together, and put soap in his mouth. When we talked to Tyler in chambers, he confirmed that this is what his stepmother did to him. He said that he did tell his mother that his stepmother had 3 In a fit of anger, the father broke some windows in the van before he turned it over to the mother. He got caught and paid to have them repaired. -4- 95-1072 CIVIL TERM punched him in order to get his mother's attention "because she never paid any attention to me so I said that so that maybe she would pay attention more to me because she was only paying attention to my sister." When the mother moved the children to the South Middleton School District, shortly after they had begun the fourth grade, the Mechanicsburg School District was already in the process of taking Tyler out of special education. After Tyler was in the South Middleton School District for two weeks, he was moved out of special education, but was still monitored. Both children did fairly well in the first marking period, but not as well in the second marking period. One of the problems has been a lack of preparation of homework. Tyler has failed remedial reading, and the school district wants to do some additional testing. The mother has consented, but the father has not. He testified that he has not agreed to new testing because he is already aware of the language difficulties that Tyler has. The children are now seeing a counselor twice a month. The maturity of Tyler and Tashia is consistent with their young ages. Tyler said he wants to live with his father because he doesn't like some things that his mother is saying about him. Tashia said she wanted to live with her mother, but she did not know why. A custody order must be in the best interest 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. Superior 381 (1995). It is apparent that Tyler and Tashia were doing well in the father's -5- 95-1072 CIVIL TERM stable household. His wife treated these children just like her own.4 We do not believe that she struck Tyler in the mouth. The mother's precipitous removal of the children from the father's home, and from their two brothers, was not warranted. Nor was the mother warranted in then keeping the children from the father. The mother also removed Tyler and Tashia from contact with their father for a little over two years starting in the later part of 1995. When it suited her purpose, she then had Tyler and Tashia live with the father and his wife starting in the spring of 1998. She later acknowledged that the children were doing very well with them. The mother's conduct in September 2001, resulted in a change of schools where the children have not been doing as well as they had been. The disruption in their lives has adversely affected them. The temporary shared custody arrangement is not working well. The father has a stable home in which the children are established. We are satisfied the children should live there. The mother is in a more stable situation than she was previously, and it is important that the children have contact with her. Therefore, we will award her substantial periods of temporary physical custody. Because the end of the school year is not that far away, the children shall stay enrolled in the South Middleton School District until the end of the year. The father shall also consent to such testing of Tyler as the school district wishes. Further clarifying Tyler's status can only help him in the long run. For the foregoing reasons, the following order is entered: 4 She has sought some counseling regarding appropriate discipline. -6- 95-1072 CIVIL TERM ORDER OF COURT AND NOW, this day of March, 2002, it is ordered: 1. All prior custody orders are vacated and replaced with this order. 2. Elmer K. McClucas and Cindy L. McClucas shall have shared legal custody of Tyler McClucas, born July 5, 1991, and Tashia McClucas, born July 16, 1992. 3. The father shall have primary physical custody of Tyler and Tashia. 4. The mother shall have temporary physical custody of Tyler and Tashia: (a) during the school year: (i) every other weekend from Friday after school until Monday at the beginning of school. If Monday is a school holiday, this period shall extend to Tuesday at the start of school. (ii) on the Monday following the weekend that she does not have the children, from after school until Tuesday at the start of school. (b) during the summer school recess, every two weeks out of three. (c) each December 26th through January 1st. 5. The parents shall share Thanksgiving and Christmas. By the Court, Edgar B. Bayley, J. -7- 95-1072 CIVIL TERM David Lopez, Esquire For Plaintiff Marylou Matas, Esquire For Defendant :prs -8- 95-1072 CIVIL TERM -9-