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HomeMy WebLinkAbout02-1510 CIVILCHRISTOPHER FINKENBINDER, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. AMBER DEMOTT, DEFENDANT 02-1510 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., June 13, 2002:-- Christopher Finkenbinder, age 29, and Amber DeMott, age 27, are the parents of a daughter, Jayde Finkenbinder, born November 6, 1993, age 8, and twin boys, Justin and Jacob Finkenbinder, ages 4, who were born February 1, 1998. The father filed this complaint for custody of the three children on March 28, 2002. Following a conciliation conference, an interim order was entered on May 13, 2002. This was the first custody order ever entered regarding Jayde, Justin and Jacob. The order provides that the mother could remain in Utah with the children until a custody hearing was conducted, and she would bring the minor children to the hearing. The hearing was conducted on May 30, 2002. The parents agreed that the children will stay with the father for a period of time during this summer pending a further order of court. The father, besides seeking primary physical custody, seeks an order prohibiting the mother from having the children in Utah. The mother seeks primary physical custody, and permission to have the children live with her in Utah. She represented that if she is not allowed to have the children live with her in Utah, she will return to this area of 02-1510 CIVIL TERM Pennsylvania, where both parties agree that she would have primary physical custody. The parents did not live together when Jayde was born, and they have never been married. The mother and father started to live together in an apartment in April, 1994. They broke up in January, 1999. They lived together again in a mobile home from September, 1999 to September, 2000. In September, 2000, the mother moved into a domestic violence shelter for a short time, and then lived for three weeks in her mother's home in Shippensburg, Cumberland County. Up to that point, the children had always lived with the mother, or with both parents during the periods they lived together. At the end of November, 2000, the mother moved to Enon Valley in western Pennsylvania to live with a boyfriend. She took Justin and Jacob with her. She left Jayde with her mother in Shippensburg so as to not disturb her school that year. After an incident in February, 2001, when her boyfriend broke her jaw, the mother moved back to Cumberland County, and into the mobile home of the father. The mother and father and the three children then lived together until June, 2001. At that time, the mother moved into an apartment with the children in Newville, Cumberland County. In February, 2002, the mother moved with the three children into the home of her aunt in Brigman City, Utah, which is near Salt Lake City. She did not tell the father she was moving, but she did call him on the evening she left, and told him where she was going. She testified that she relied on the advice of an attorney who told her that she could move the children to Utah without obtaining a court order because there was no -2- 02-1510 CIVIL TERM custody order in place. The mother and the children lived with her aunt in Brigman City until she obtained her own three-bedroom apartment on April 1, 2002. During the periods when the parents have been separated, the father has never seen the children regularly. He would see them when it was convenient despite the mother urging him to take them more often. The father has had the children on very few overnights, and has seldom taken all three at the same time. He never made an effort to see them during the little over two months that the mother was living in Enon Valley at the end of 2000 and the beginning of 2001, although he did not know that Jayde was with the maternal grandmother in Shippensburg during that period. After the separation in June, 2001, the mother would sometimes take the children to the father's home, and even stay overnight herself, so that he would have time with them. Last Thanksgiving, he spent one hour with the children. Last Christmas, the mother had the father stay at her house overnight so he could spend time with the children. In January, 2002, the maternal grandmother died in Utah. The mother flew to Utah to attend the funeral. During the six days she was gone, the father agreed to take care of the children, although the mother had to find a care provider while he was working. After her move to Utah, the father called the children two days later, and then called them two weeks later.~ Lately, he has been calling them more often. The mother has on occasions called the father so he could talk to the children. He has not sent the ~ The children were still living in Newville with their mother on February 1st, which was the birthday of Justin and Jacob. The father forgot to call them that day. -3- 02-1510 CIVIL TERM children any letters. Both parents agree that the children were excited and happy to see their father when they arrived from Pennsylvania on May 28th. The mother testified that there has been a history of domestic violence, physical, mental and verbal, during all periods when she lived with the father. The father testified that he never physically abused the mother. The mother pressed criminal charges on only one occasion in 1999. Those charges were resolved with the father pleading guilty to a count of summary harassment. The mother testified that over the years the father would often threaten to take the children from her. When she decided to move to Utah she did not tell him that she was going, and in fact told him that she was not planning to move, because she feared that he would take the children from her. The mother has a sporadic work history. Before she moved to Newville in June, 2001, she was a waitress at an restaurant in Shippensburg for a year. While living in Newville she worked as a waitress at the Carlisle Truck Plaza for six months. She then took a job at a Cracker Barrel restaurant. She later lost that job because she took off too much time because of difficulty in obtaining reliable, affordable childcare. Since April 1, 2002, the mother works full-time as a nursing assistant in an assisted living facility. She earns $6.50 an hour. She works 2:30 p.m. to 11:00 p.m. on variable days with two days off each week. Two of those days off are on a weekend every other week. In addition, the mother attends six hours of class each week to become a certified nursing assistant. She will take a test to become a certified nursing assistant -4- 02-1510 CIVIL TERM in July of this year. If she passes, her salary will increase to $7 per hour and her certification will allow her to seek employment in hospitals. She hopes to eventually become a licensed practical nurse. When she is working or at class, one of the mother's two aunts, Kathy Stone and Della Burwell, provide care for Justin and Jacob, and for Jayde when she is not in school. The mother receives $135 cash assistance a month, food stamps, medical assistance, a welfare payment for the childcare provided by her aunts, and a welfare payment for her certified nursing assistant classes. She receives $90 a week child support from the father. Until 1998, the father had various jobs. Since 1998, he has been a production worker at Carlisle Tire & Wheel. He works a swing shift on a four-week, twenty-eight day schedule. On the first Monday through Friday, he works 6:30 a.m. to 2:30 p.m. He is then off between Saturday and Wednesday. On the next Thursday and Friday he works 2:30 p.m. to 10:30 p.m., then on Saturday from 10:30 a.m. to 10:30 p.m. He then works on Sunday through Wednesday from 2:30 p.m. to 10:30 p.m., and is off Thursday. For the next seven days between Friday and Thursday, he works 10:30 p.m. to 6:30 a.m. and then he is off between Friday and Sunday. He earns $13.59 per hour. In 2001, he earned $23,890. The mother testified that she was homesick to return to Brigman City and moved to Utah for a better life for her and her children. She lived in Brigman City, Utah from birth until she was twelve years old. Three aunts, two uncles, and many of her cousins live there. She has a brother who lives an hour and a half away, and an uncle who -5- 02-1510 CIVIL TERM lives nearby in Idaho, both of whom have seen the children. Her father lives in Arizona, and he too has seen the children. The mother's workplace, and the homes of her aunts, are within walking distance of her apartment. She feels that she has already established stability for herself and her children in Utah that she was never able to accomplish while living in Pennsylvania. The maternal grandmother, Thora Willie, lives in Shippensburg and has had a close relationship with the children, although she has seldom taken care of all three of them at the same time because the twins are a lot for her to handle. She testified that her daughter and the father went through some very difficult times, and that she has never seen her daughter so happy since she started a new life in Brigman City. An aunt, Kathy Stone, testified that the children have settled in well, and that the mother cares very well for them. On days the she works, the mother takes the boys to Stone's home at 2:00 p.m. When Jayde is in school her aunt picks her up. Della Burwell, another aunt, helps Stone if there is a conflict. She testified that the children attend church with her if the mother is working. The mother testified that the discipline of the twins is much better now that her aunts have helped her. Jayde has done well completing second grade in Utah, and better than she did in Newville Elementary. Justin and Jacob do not start Kindergarten until the 2003-2004 school year, but the mother plans to put them into a headstart program for the 2002-2003 year. The mother is a member of the Church of Jesus Christ and the Latter Day Saints. She regularly attended church with the children when she lived in Cumberland County, and she -6- 02-1510 CIVIL TERM continues to attend church in Utah. The father testified that he loves his children and he believes he can provide for all of their needs. The father lives in a three-bedroom house in Plainfield, Cumberland County that he rented in April, 2002. His cousin's wife, Stephanie Finkenbinder, lives nearby with her husband and children ages 11 and 15. She has a part-time job on Saturdays between 8:00 a.m. and noon at the Plainfield post office. She has told the father that she will care for Jayde, Justin and Jacob when he is working, and on Saturdays when she works her aunt will watch the children. The father's parents are divorced. His mother lives in Carlisle and his father lives in Plainfield. The maternal grandmother had some contact with the children in the early years but that has waned. DISOUSSION We must determine what is in the best interest of the children, considering all factors legitimately affecting their physical, intellectual, moral, spiritual wellbeing. Swope v. Swope, 689 A.2d 264 (Pa. Super. 1977). In Gruber v. Gruber, 400 Pa. Super. 174 (1990), the Superior Court of Pennsylvania set forth three factors to consider in determining whether a custodial parent should be permitted to relocate children outside the geographical area of the non-custodial parent: 1. the potential advantages of the proposed move and the likelihood that the move would substantially improve 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 motives of both the custodial and non-custodial -7- 02-1510 CIVIL TERM parent in either seeking the move or seeking to prevent it; 3. the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. In Beers v. Beers, 710 A.2d 1206 (Pa. Super. 1998), the Superior Court stated that it has consistently held that Gruber "refines upon, but does not alter the basic and determinative inquiry as to the direction in which the best interests of the child lie." As to the first Gruber factor, the Superior Court stated in Anderson v. McVay, 743 A.2d 472 (Pa. Super. 1999): A court need not consider only economic benefits when determining whether relocation substantially improves the quality of life of the parent .... Rather, "when the move will significantly improve the general quality of life for the custodial parent, indirect benefits flow to the children with whom they reside." This is because "the best interests of the child are more closely aligned with the interest and quality of life of the custodial parent .... "[T]here is no need.., to show an independent benefit, apart from that of [the moving party], flowing to the children because of the relocation. [See] Zalenko v. White, 701 A.2d 227, 229 (Pa. Super. 1997). (Other citations omitted.) In Ferdinand v. Ferdinand, 763 A.2d 820 (Pa. Super. 2000), the Superior Court reversed an order of the trial court denying a mother's petition to relocate where non- economic improvements in the mother's quality of life and happiness would inure to the benefit of the children. In Burkholder v. Burkholder, 790 A.2d 1053 (Pa. Super. 2002), the Superior Court, affirming a mother's petition to relocate, noted that the trial court credited the testimony of the mother's son that she was much happier, and the testimony of numerous others that the children were thriving, happy and surrounded by extended family. -8- 02-1510 CIVIL TERM In the case sub judice, this young mother has always struggled to raise the three active children under her primary care. The father has seen the children irregularly, and he has rarely had them for more than one overnight at a time. While the mother was in Pennsylvania, she received some help from her mother, but seldom with all three children at the same time. In Brigman City, Utah, the mother's childhood home, she now has a network of supportive family members. She lives within walking distance of her aunts, participates in family gatherings, and regularly attends church with the children and her extended family. The childcare provided by the aunts has helped her maintain her full-time job that she enjoys, and gives her the opportunity to advance in that job by taking classes for a certification. She has established a goal of obtaining a degree as a licensed practical nurse. We credit the testimony of the maternal grandmother that her daughter, who has gone through so much, is very happy with the new life she has started in Brigman City. This stability and connection with family has correspondingly improved the quality of life for the three children. They have developed meaningful relationships with their extended family. We also credit the testimony of the mother that the twins are better behaved due to their aunt's discipline, and Jayde's grades shows that she has adjusted well to her new school. The mother's move to Utah was motivated by a desire to return to her childhood home and raise her children within the supportive network of her extended family. She has already obtained a degree of stability and security that she never had in Pennsylvania. She did not move to Utah on a whim, or to frustrate the father's -9- 02-1510 CIVIL TERM relationship with the children. She realizes that the father's relationship with the children is important, and has encouraged him to maintain contact with the children. There is no evidence that the father's resistance to the children moving to Utah is inspired by improper motives. He is concerned about his ability to continue a meaningful relationship with his children despite the fact that his contact with them before they went to Utah was sporadic at best. Generally, roundtrip airfares between Harrisburg and Salt Lake City range from $265 to $350. The mother is willing to have the children spend the better part of each summer with the father. During the Christmas vacation period she will bring the children here, and she will stay with her mother. She is willing to split the cost of the airfare for the children with the father. If the father will visit the children in Utah, she will arrange for a place for him to stay. Such arrangements are practical, and will actually provide the father with far more meaningful time with his children then he has ever exercised. Considering all of the evidence, we are satisfied that the best interest of Jayde, Justin and Jacob are that the mother has primary physical custody of them in her home in Brigman City, Utah. We will enter an order that will provide the father with realistic temporary periods of physical custody that will adequately foster his ongoing relationship with them. ORDER OF COURT AND NOW, this day of June, 2002, the following order is entered: -10- 02-1510 CIVIL TERM (1) The interim order entered on May 13, 2002, is vacated and replaced with this order. (2) Amber DeMott and Christopher Finkenbinder shall have shared legal custody of Jayde Finkenbinder, born November 6, 1993, Justin Finkenbinder, born February 1, 1998, and Jacob Finkenbinder, born February 1, 1998. (3) The mother shall have primary physical custody of Jayde, Justin and Jacob, and may have the children live with her in Brigman City, Utah. (4) The father shall have periods of temporary physical custody as follows: (a) For a continuing period until Saturday, August 3, 2002. In future summer school vacation periods, from one week after the school year ends until the first weekend in August. (b) From noon on Christmas day each year until either December 30th or thereafter depending on the travel arrangements made by the mother to return the children to Utah. (c) During such periods as he may visit with the children in Brigman City, Utah, consistent with their school schedules. (d) For the father's periods of temporary physical custody during each summer and at Christmas, the parents shall divide equally the costs of transportation for the children. By the Court, -11- 02-1510 CIVIL TERM Edgar B. Bayley, J. -12- 02-1510 CIVIL TERM John A. Abom, Esquire For the Father Joan Carey, Esquire For the Mother :sss -13-