Loading...
HomeMy WebLinkAbout97-5832 civilT M. H · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL TERM K ~ H · ORDER OF COURT AND NOW, Apdl 13, 1999, the record in this case should reflect that the Court held an office conference with counsel for each side to obtain input into the setting of the custody schedule for their adopted child, M H , dob February 10, 1996. In our accompanying opinion wherein the Court granted primary custody of the child to the mother, with rights of partial custody in the father, and legal custody to both parents, the Court fix'es the following partial physical custody schedule for the father~: 1. Fifteen days out of every sixty days. 2. Father is to notify Mother at least thirty days in advance of his custody periods so that the parties can take advantage of reduced airfares. 3. Any other time Father is in Florida, with reasonable notice to Mother. Mother shall provide accommodations for Father on the property at which she now resides. These trips shall be at Father's expense. ~While the Court obtained input from counsel as to the parameters of this order, it does not necessarily mean that either party agrees to the order. This order is the product of the Court's determination as to what is in the best interests of the child. 4. Thanksgiving from Wednesday before the holiday until Monday after the holiday in every even-numbered year. 5. Christmas from December 22 to December 28 in every odd-numbered year. Christmas from December 28 to January 3 in every even-numbered year. 6. Father shall have the right to exercise his period of custody on the child's birthday in odd-numbered years. 7. Father pays for the child's airfare from Florida to Pennsylvania; Mother pays for the child's airfare from Pennsylvania to Florida. 8. The parties shall have reasonable telephone contact with the child while in the custody of the other parent. 9. The Court's order of April 1, 1999, which addressed Father's partial custody periods is reaffirmed as to paragraphs 1, 2, and 3, and vacated as to all following paragraphs. ~ p.j. Theresa Barrett-Male, Esquire For the Plaintiff Barbara Sumple-Sullivan, Esquire For the Defendant T M. H , : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA : V. : : NO. 97-5832 CIVIL K P H , Defendant IN RE: CUSTODY OPINION HOFFER, P.J.: In this opinion, the Court shall address the custody of the parties' minor child and the relocation of the child with her mother to Ocala, Florida. The facts of this case are as follows: Mother, T H , was born in New York but was raised throughout the world due to her fatl~er's job transfers. Father, K H , was born and raised in New York. The parties married February 4, 1989. In or about 1991, the parties moved to Cumberland County, Pennsylvania and remained here until the date of the hearing in this matter. Neither party had any ties to central Pennsylvania before moving here. During the marriage, both parties wanted children. Unable to conceive, the parties chose to adopt a child from China. Child, M T H , was born in China, February 10, 1996. The adoption process was completed and the parties went to China to pick up Child in August of 1996. After Child's arrival, Mother stayed at home to care for her new daughter full-time. Mother's mother and stepfather moved in with the 97-5832 CIVIL parties from October of 1996 to August of 1997 to aid in the care of their grandchild. During this time, the parties were suffering marital difficulties. The parties were in counseling with Dr. Kenneth Small. In October of 1997, Mother decided that she could not reconcile the marriage with Father. Mother and Child vacated the family home, fourteen months after Child had come to the United States.~ Mother filed a complaint for divorce and custody on October 22, 1997. Father answered the complaint and included a counterclaim for joint legal and physical custody of Child. An interim custody order was entered and a formal custody hearing was scheduled for February 18, 1998. On January 7, 1998, Mother filed a motion with the Court seeking permission to move with Child to Ocala, Florida where Child's grandparents were currently residing and asking the Court to hold the relocation hearing at the same time the custody hearing was to be held. :l'he Court granted Mother's request for the relocation hearing and allowed Father to answer Mother's motion to relocate. Father opposed Mother's relocation to Florida with Child. The combined custody and relocation hearing was held February 18, 1998. A number of witnesses testified about the family relationship. Dr. Small, the parties marriage counselor, testified that Father was not very active in Child's life ~ The family home was listed for sale during the divorce proceedings. At this point, it is believed to have been sold. 97-5832 CIVIL for the first year that she was here from China. However, the doctor testified that, during a counseling session, he heard Father threaten to take Child and get a divorce. Mother's mother and step-father both testified that Father was not the most active parent but they both supported the need for a father-daughter relationship. Child's grandparents indicated that Mother and Child would have a close knit family in Florida to provide love and support and that they would financially support Mother and Child by providing housing and childcare, when Mother finds a job. Mother's step-father also testified that he would maintain a live-in trailer on the property for Father's use when Father came to Florida to visit Child. Friends of the parties testified that Chere was a good relationship between Father and Child. Mother testified that, prior to the breakup of the marriage, she provided the majority of care for Child. Because Child lived her first six months in a Chinese orphanage cared for exclusively by women, Child is more comfortable with Mother. After the unfortunate demise of the parties' marriage, Mother has tried to establish a lifestyle which is secure and loving for her daughter. The Court witnessed the bitterness left between Mother and Father. We believe that Mother will receive little if any emotional support from Father during Child's adolescence. Mother provided the Court with a packet of letters she wrote inquiring about 97-5832 CIVIL teaching jobs in central Pennsylvania and responses from the corresponding school districts stating that no positions were available. If Mother had been able to secure a teaching position in central Pennsylvania, Child would have had to enter commercial daycare. Upon careful consideration, Mother decided a move to Florida would be best for her and her daughter. Neither Mother nor Father has any permanent ties to central Pennsylvania. No family members are in central Pennsylvania. In Florida, Mother and Child will receive love and support from Mother's parents. Housing is available at Mother's parents home and Child's grandmother will provide daycare at home when Mother finds employment. More teaching prospects are currently available in Florida and Mother plans to seek a graduate degree at one of the many schools close to Ocala, including the University of Florida in Gainesville. The Court believes Mother's request to relocate to Florida with her family is reasonable. After reviewing Father's testimony before this Court, it is clear that Father wants to take part in his adopted daughter's life. He concedes that prior to the parties' separation, Mother provided the bulk of the care for Child. This, however, does not make Father an unwilling or unfit parent. Father is employed by Honeywell, a large international corporation with offices throughout the country. 4 97-5832 CIVIL Father has no family in central Pennsylvania. The record reflects that prior to the break up of the parties' marriage, Father was looking into job transfers and new positions outside the area. In his testimony, Father indicated that he would have little difficulty in obtaining a transfer to an area closer to his daughter if she were to relocate to Florida. Before the combined hearing was held, an evaluation was conducted by Dr. Arnold Shienvold, a psychological evaluation expert. Dr. Shienvold testified that, in his opinion, it was in the best interests of Child for Mother to be the primary caretaker of Child and for Father's time with Child to increase as Child got older. While he gave an opinion that relocation to Florida was not in the best interests of Child, the Court believes that his concerns were primarily based upon the difficulty in formulating a workable visitation schedule with Father in Pennsylvania and Mother in Florida. Dr. Shienvold did testify that he did not believe that Mother's decision to move to Florida was impulsive. In conclusion, the hearing testimony reflected that both Mother and Father are capable parents. Both love and care for their daughter. Although their relationship is quite contentious, both are willing to abide by a court ordered custody arrangement. By order dated April 22, 1998, the Court awarded primary physical custody to Mother and granted her request to relocate to Florida with Child. Father filed 5 97-5832 CIVIL an appeal with the Superior Court. The Superior Court vacated this Court's order and remanded for a more full and complete legal analysis of the relocation issue. On April 1, 1999, the Court issued two orders: (1) granting Father's petition for emergency relief allowing him to have custody of Child for Easter weekend and (2) granting Mother's requested custody and relocation order and proposed visitation schedule. The Court held a conference on April 13, 1999, to revise the custody order entered on April 1, 1999. A revised custody order and visitation schedule is attached. Mother is given primary physical custody of Child. Father is to have partial physical custody. Both parents shall share legal custody of Child. Discussion The following discussion is our analysis of the Gruber standard. We shall proceed to minutely examine each prong of the test. The record and this opinion shall be the full and complete expression of the analysis required in this case. Before reaching the relocation issue, the Court wants to reiterate that Mother is to be the primary physical custodian of Child. In resolving custody issues the ultimate question must be what serves the best interests of the child, Warren v. Rickabaugh, 410 Pa. Super. 431, 435, 600 A.2d 218, 220 (1991). "All other considerations are deemed subordinate to the child's physical, intellectual, moral and spiritual well-being. Id. 6 97-5832 CIVIL In the present case, Child has received her primary care throughout her young life from Mother. Child is more comfortable with Mother. By granting primary physical custody of Child to Mother, the Court ensures that the best interests of Child are met. A father-daughter relationship is also an important facet of every little girl's life. As such, it is in the best interests of Child for Mother and Father to share legal custody of Child and for the Court to grant partial physical custody to Father and to establish a visitation schedule guaranteeing time for Father to spend with Child. Mother has also requested permission to relocate to Florida with Child. After the original hearing was completed, the Court granted Mother's request. Upon reconsideration, the Court again holds that Mother has permission to move to Florida with Child. The standard for determining relocation issues in Pennsylvania is set out in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). In relocation issues, the Gruber court recognized that the following interests should be accommodated as nearly possible: (1) the custodial parent's need to control the basic decisions that will affect the daily life of the parent and child; (2) the importance to a child of maintaining a strong parent-child relationship with the non-custodial parent; (3) the ability of the non-custodial parent to share love with the child and participate in the child-rearing process; and (4) the state's interest in protecting the best 7 97-5832 CIVIL interests of the child. Gruber v. Gruber, 400 Pa. Super. 174, 184, 583 A.2d 434, 438-39 (1990). Gruber tells us to apply a three prong test in order to decide if a custodial parent should be allowed to relocate to an area far from the non- custodial parent. Gruber at 184, 583 A.2d at 439. The test to apply is: First, the court must assess 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. Next, the court must establish the integrity of the motives of both the custodial parent and the non-custodial parent in either seeking the move or seeking to prevent it. Finally, the court must consider the availability of realistic, substitute visitation-arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. Gruber at 184-85, 583 A.2d at 439. Pron.q One: Advantages of the Move and Reasonableness of the Decision to MovP. The record reflects that Mother and Child's move to Florida has the potential of greatly improving the quality of life for both Mother and Child. The condition of Mother and Father's relationship makes it clear to this Court that Mother would not receive emotional support from Father if she was to remain in central Pennsylvania. Neither Mother nor Father has family in the area to provide love and support in the rearing of Child. In Florida, Mother and Child will be living with 8 97-5832 CIVIL Mother's parents who can provide emotional support and love to both Mother and Child. As grandparents, Mother's parents have an interest in caring for Child. Mother will receive financial support from her family in the form of a place to live at the family horse farm and Mother's mother has offered to provide childcare services at home when Mother returns to work. The record reflects that Mother has been unsuccessful in her attempt to seek employment as a teacher in central Pennsylvania. More teaching positions are currently available in Florida. Mother also seeks to return to school to get a master's degree. Florida provides many outlets for her to do so. A happy and satisfied parent can provide a higher quality of life for his or her children. Given the circumstances, Mother's choice of moving to Florida is reasonable and will be a positive impact on Child's life. Mother's decision to seek the Court's permission to relocate to Florida was reasoned and well thought out. She knew that love and support for herself and Child were abundant in Florida. The opportunity to return to school and/or work while Child was in the care of her grandmother was very attractive. Prior to the breakup of the marriage, Mother believed that Father was willing to seek employment outside central Pennsylvania. She believed that, if she were to move with Child, Father would attempt to relocate closer to Florida so that he could maintain a relationship with his daughter. 9 97-5832 CIVIL Prong Two: Integrity_ of the Motives of Both Parents Gruber asks that the Court establish the integrity of the motives of both parents, the custodial parent in seeking to move and the non-custodial parent in seeking to prevent the move. Regarding Mother's motives, the Court finds that her motivation was solely the improvement of the quality of life for her and her child. Her marriage ended in central Pennsylvania and the relationship between Mother and Father remained contentious. The family home was no longer her residence. She had no family or close ties in the area. Mother's job prospects looked dim. As a result, she sought to improve her lifestyle, and therefore Child's lifestyle, by moving to Florida where they had the love and support of family. The Court cannot question her motives in requesting relocation to Florida. The Court does question Father's motives for seeking to prevent Mother and Child's move to Florida. We recognize and respect Father's desire to stay involved in his daughter's life and the complications of a move of such distance. The problem arises in the fact that Father worked for a large corporation with offices throughout the country and he testified that obtaining a transfer to be closer to Child would not be that difficult. The record reflects that prior to the conclusion of the marriage, Father looked into transfers and new employment outside of central Pennsylvania. 10 97-5832 CIVIL Prong Three: Substitute Visitation that will Foster Child's Relationship with Father Father and Mother shall retain joint legal custody of Child. If Father is to remain in central Pennsylvania, the Court recognizes that forming a working visitation schedule may be difficult. However, because the best interests of Child lie with Mother in Florida, the Court must craft a schedule that is fair to both parties. Both Mother and Father are capable and willing parents and it is in the best interests of Child to maintain a relationship with Father while residing with Mother. Mother's parents have generously offered to maintain a living space for Father when he comes to Florida to visit Child. The Court holds that Father should have the opportunity to do so whenever he pleases provided that he give Mother reasonable notice of his arrival and he bear the cost of travel. Holidays and other special days in Child's life should be split evenly between the parties and they shall bear equal burden in paying for Child's travel expenses. All travel arrangements shall be made with thirty-days notice so that airline tickets can be purchased twenty-one days in advance assuring the best prices? Details of such visitation 2 As required by Warren v. Rickabau.qh, 410 Pa. Super. 431,600 A.2d 218 (1991), the reason for dividing the travel expenses equally, except for Father's travel to Florida to visit with Child in Florida, is that Mother has the increased benefit of financial support from her family. She is permitted to move to Florida because it is in the best interests of Child but Mother shall share the cost of Child visits with Father because it is also in the best interests of Child to maintain a relationship with Father. 11 97-5832 CIVIL shall be included in the order to follow. Regular visitation totaling fifteen days out of sixty must be scheduled by the parties. As above, the cost of travel shall be split evenly and thirty-days notice must be given so that tickets can be purchased at least twenty-one days in advance. The Court recognizes that such a visitation schedule may be difficult given the animosity between Mother and Father, but it is a realistic solution to the problem of where Mother and Child shall reside. The Court feels that the best interests of the Child are satisfied by giving primary physical custody to Mother and allowing her to relocate to Florida with Child. However, Father's desire to maintain a relationship with his daughter is vital. As such, the only way to satisfy the needs of the parties and Child is to allow Mother and Child to move to Florida and to set up a visitation schedule that fosters Child's relationship with Father. Given the availability of flights to and from Orlando, Florida (the airport closest to Mother's new home in Ocala) and the possibility of Father's job transfer or change to be closer to Child a reasonable visitation schedule is possible. In conclusion, having analyzed each prong of the Gruber test, the Court holds that the test is met and Mother is permitted to relocate to Ocala, Florida. Father must be given a fair opportunity to maintain and enhance his relationship with his daughter despite the challenge of distance. The attached order will make specific visitation arrangements which conform with the principles of this opinion. 12