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HomeMy WebLinkAbout2016-825 S. C. B., Plaintiff v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT J. S. B., 2016-00825 CIVIL TERM Defendant IN RE: SUPPLEMENTAL PARENTING PLAN OPINION AND ORDER OF COURT PLACEY, C.P.J. 5 APRIL 2018 PROCEDURAL HISTORY This case began in February 2016, when Mother filed a Custody Complaint as to the legal and physical custody of the parties’ then one-year-old son. Six days later, Mother filed an Emergency Petition for Special Relief that resulted in Mother being given sole legal and physical custody pending the case being sent to an accelerated conciliation based on Father’s recent actions. Mother, thereafter, filed a Petition for Psychological Evaluation, to which a Rule was issued and an Answer filed. The day after Mother’s filing, Father filed a Petition for Psychological Evaluation, to which a Rule was issued and an Answer with New Matter filed. In April 2016, Father filed a Petition to Amend the Emergency Custody Order. The next day, based on the conciliation report, a Custody Order was entered that gave the parents shared legal custody and Father supervised visitation with his son. A full custody hearing trial was scheduled for July 2016, preceded by a June 2016 pretrial conference. In the interim, Father filed an 2016-00825 objection to a subpoena issued to his psychologist. The parents were required to complete on-line parenting education course work at UpToParents.org in advance of the custody trial. An Interim Custody Order was entered at the conclusion of the custody trial that provided Father with unsupervised partial physical custody every Saturday. Twelve days later Father filed a Petition for Civil Contempt of the prior Amended Emergency Order that had provided twice-weekly supervised visits for Father. It was alleged that Mother withheld supervised visitation. The contempt was assigned to a conciliator. The now original Parenting Plan and Assessment was entered on August 3, 2016, which provided for, inter alia, shared legal custody and primary physical custody with Mother and partial non-overnight physical custody with Father on alternating weekends and evenings each week. Father filed a Motion for Reconsideration on September 2, 2016, to which a Rule was issued and an Answer provided. A deferred decision on the Reconsideration Motion was made in recognition that conciliation was ongoing between parents. Mother filed a Petition for Special Relief in March 2017, which sought a custody evaluation, appointment of a guardian ad litem, continued participation of co-parenting counseling, and denial of the deferred Reconsideration Motion. A Rule was issued to that Petition for Special Relief, to which an Answer was filed. Samuel L. Andes, Esquire was appointed as Guardian ad litem (GAL) for the minor child on March 16, 2017, and an Order issued on the Motion for Reconsideration that adjusted Father’s periods of partial physical custody, awarded portions of costs for the supervised visits to Father, 2 2016-00825 and directed those costs go towards costs for the newly appointed GAL; furthermore; the parents were directed to continue in co-parent counseling. th Mother filed an Appeal to the Superior Court of the March 16 Order on April 13, 2017, alleging eleven errors on Appeal. An Opinion in support of the trial court decisions to date was filed on May 15, 2017. A non-precedential Opinion was entered on October 2, 2017, by the Superior Court that vacated the March 16, 2017 Order as being untimely. The Superior Court pointed out to the trial court that under the correct application of Civil Procedure Rule 1930.2(b) and (c), a trial court has thirty days from the entry of the underlying Order to expressly grant the Motion for Reconsideration, which tolls the Appeal period and carves a 120-day period for the court to render its reconsideration decision. In the appeal decision time, between May and October 2017, four separate counsel entered or withdrew their appearances, a Motion to Deny the Custody Evaluation was filed by Father, which was rejected, as that was an issue on appeal. An Emergency Petition for Contempt was filed by Mother, a Petition Contempt was filed by Father, and conciliation of the contempt petitions was attempted. A Petition for Modification was filed by Father, a Motion to Schedule Hearing regarding the custody evaluation was filed by Mother, and the GAL filed an interim report. Upon return from appeal, a supplemental custody trial was scheduled with a pretrial set for February 8, 2018, and trial on March 8, 2018. The GAL filed a second interim report in December 2017, and in response to it and the second conciliation report, an Interim Order of Custody was entered on December 21, 2017. This December Interim Order gradually expanded Father’s partial custody over months to 3 2016-00825 include multiple overnight periods in advance of the trial date. The basis for this Interim Order arose out the conciliation and GAL reports, as well as the custody modification request of Father that followed conciliation, wherein Father sought an expansion of his periods of partial physical custody to shared physical custody. Mother filed an appeal of that Interim Order on January 18, 2018. This appeal was withdrawn by Mother in February 2018. After the conclusion of the supplemental custody trial, an Interim Custody Order was entered on March 22, 2018, in advance of this Opinion and Order of Court. This Opinion is in support of the continuing overall parenting plan. Motions to compel preschool and for designation of a child counselor/play therapist were filed post trial that will be dealt with after this Opinion is rendered. FACTS The evaluation of the custody factors as set forth in the August 3, 2016 Parenting Plan and Assessment is incorporated herein as if fully set forth. It was noted therein that Father’s role should expand as his parenting skills develop. Mother, in the short term, had the far more developed infrastructure that was and is in the best interest of the child. Part of Mother’s infrastructure is the maternal grandparents, who have retired and moved to the New Cumberland community to support their grandson. The stated purpose of the original Parenting Plan and Assessment was to provide a foundation for the parents to build upon without the necessity of repetitive court intervention. To the parents’ credit, individually they are each making parenting strides. Mother is now encouraging continuing contact with the child, offers make-up time, albeit not within Father’s ability to reschedule. This bespeaks to their inability to 4 2016-00825 communicate. Father supports Mother’s healthy living lifestyle and attempts to pass it on to their son, although it must be noted that others have seen him go off this strict diet. \[Factor One\] Mother asserts that Father downplays the injuries to the child that she observes on child’s return from Father. However, to her credit these are not “emergencies” that require immediate court intervention. \[Factor Two\] Father has had to step up as a single parent and take care of all the parental duties when he has custody of their son, which previously had been dominantly taken care of by Mother, and Father playing only a supporting role. Father indicates he has not been to medical appointments because of the scheduling done by Mother. Father describes their son as a happy little boy despite the continuing conflict of the parents. \[Factor Three\] Father has stepped up to attend to the developmental and growth needs of the child to include trips, fishing, and other outdoor activities during his periods of partial physical custody. Father still does not handle divided attention tasks as well as Mother, as evidenced by the initial early morning drop-off of son in a wet diaper following the modified schedule to overnights. There has not been a repeat performance of this. It must be noted that the imposed schedule from the December Interim Order had son being awakened multiple days in the early morning to be turned over to another parent or grandparent outside of his normal waking hours. \[Factors Three and Four\] The parties continue to live within a mile of each other, which includes the grandparent’s residence. The grandparents remain the child’s primary caregivers in the absences of either parent. \[Factors Eleven and Twelve\] 5 2016-00825 The level of conflict between the parties has not dissipated, simply put there is a lack of communication. The Father has taken son on trips outside of the New Cumberland area without informing Mother. He is not required to get permission to take weekends trips to the beach or other festivities; however, it speaks volumes that he cannot disclose where he is going. It is simple courtesy. Likewise, Mother makes healthcare appointments for the child without consulting Father. Father’s work schedule may not permit him to attend too many of the daytime appointments; however, it’s disconcerting the lack of viable communication. Communication is such an ongoing problem that it required the micro control over daily communication between parent and child per Order of Court March 16, 2017. What should have been daily quality parenting time evolved into ineffective parenting and missteps at parental communication. \[Factor Thirteen\] Mother has expended much effort to explain her belief in the need for a custody evaluation in order for the court to develop a parenting plan. The co-parenting counselor reiterated numerous times her belief that a custody evaluation was necessary as the ability to counsel had broken down. In court examination, counselor stated that the co-parenting counseling had deteriorated to such a point that it was no longer effective. The co-parent counselor’s opinion as to how the parents could move forward was through custody evaluation. The co-parent counselor did not indicate that a custody evaluation was necessary for the court to make a decision. \[Factor Sixteen\] DISCUSSION The public policy for custody is to assure reasonable and continuing contact with both parents and the sharing of rights and responsibilities in child rearing. Frank v. 6 2016-00825 Frank, 833 A.2d 194, 198 (Pa. Super. 2003). In all custody cases, the custody determination is guided by the sixteen (16) custody factors to establish a custodial arrangement in the best interest of the child. 23 Pa.C.S. § 5328(a). In the utopian custody world parents would equally share custody. We do not live in this idyllic world, nor are judges King Solomon. The focal point in any custody is the need of the child together with each parents’ ability to address the need, which is “applied” to arrive at a real world, albeit imperfect, custodial parenting plan. Due consideration and evaluation having previously been done, this review is a supplement to that now evolving parenting plan. In essence, we are now parenting the parents. In order to more fully comprehend the parenting plan, judicial perspective could be helpful to the parents. Cumberland County is a third class county and, unlike other counties in this class, there are no court divisions. The judges must hear all cases - criminal, civil, equity, and domestic - that are filed. This lack of specialization provides unique insight into custody cases, as judges see neglectful and malevolent parents in criminal cases that will haunt us the rest of our days. Moreover, this author routinely hears juvenile delinquency cases, in which 78 percent of the children come from single or no parent households. This perspective, while time consuming, provides all Cumberland County jurists with a larger worldview of the needs and best interests of children. This insight allows jurists to separate the parents’ past chaff disputes from the current wheat of what does the child need now and each parents’ ability to meet that need. The courts cannot and should not raise any child; this is the function of the parents. The court may aid the parents in developing a foundation upon which they 7 2016-00825 may build a better and more precise parenting plan. Situations can arise where it is necessary to protect the child because of threatened or actual abuse. The courts themselves are ill equipped to handle true emergencies. In an actual emergency, where there is an immediate risk of harm, Children and Youth Services and/or the police have the ability to react and respond in a proactive manner. There is no ability or desire for the courts to exigently intervene for annoyances, petty oppressions, and other trivialities between the parents. The courts are simply not equipped to react as if an actual emergency exists in such situations. The original design of any parenting plan is to allow the parents to work out and build upon the plan focused on the evolving best interest of the child. Every effort must be made to shelter the child from parental conflicts, as children pick up on the negative energies of either parent, which manifests itself into appearances in criminal or juvenile court. The courts are inefficient arbiters of custody, as by statute courts are reactive, not proactive. The legal system is particularly good at weighing evidence – be it by a preponderance or beyond a reasonable doubt – which makes custody trials seem like a competition to determine who is the better parent. Custody trials are absolutely NOT to determine the better parent. Each of these parents are good people and good parents, who, like most custody cases, need some help. Child rearing is a proactive process that requires prior planning to prevent poor performance. It is the ultimate call to parental cooperation. Communication is key to this cooperation, which can be difficult to do in a working relationship, let alone one that is in dissolution, and certainly beyond any court’s ability to proactively control. Fortunately for these parents, they live in America in 2018, where the internet presents 8 2016-00825 too many opportunities to stay instantly connected. Family organizers and communication applications, where one writes once and reads many, are readily available to bridge the communication gap in a civil and legally efficient manner. This gap presents one of the many opportunities for the parents to develop. The issues between these parents are personal and emotional, more so than legal. The continuing conflict is having a real impact upon their child, whom they both love. This impact must stop. The court, as decision maker, has made decisions that the parents may not like; however, the court is not here to make them happy. The decisions were always focused on the need of the child and the parents’ ability to meet that need. A GAL was appointed to aid the parents in addressing the child’s needs. The GAL in this case is a distinguished member of the Bar and dedicated custody advocate, who also resides in the parents’ community. The GAL’s goal has been to protect the child using his decades of problem solving skills within the legal system. All of the GAL’s efforts could not improve the parents’ ability to communicate. A custody evaluation has been repeatedly sought as if necessary to the legal decisions the court has to make. It is not legally necessary. It may be necessary for the parents’ ability to move forward and proactively parent. It is one of many opportunities the parents have to build upon the foundation established by the parenting plan. As the court knows from juvenile court, you do not overservice the client, rather you address the need presented, which has been done. It is strongly suggested that the parents explore options – be it a custody evaluation, a “when co-parenting isn’t working” program, individual counseling or some other family services program – that will allow 9 2016-00825 1 these parents to achieve their next level in parenting. The court cannot order it and reasonably expect communication to happen; the parents must arrive at this on their own. The hard lesson learned in criminal court is that mandated evaluations and counseling are less likely to work than one where the people in need reach out for help. The custody orders to date have been incremental steps designed to improve and adapt the original parenting plan. By design, the steps are to demonstrate to the parents how they can improve the plan without court intervention. The current plan has Father with son every Tuesday night and every Thursday overnight while Mother is at work, together with alternating weekends. There is room for Father to expand his alternating weekend on Sunday overnights when Father has or takes a Monday holiday, which is also while Mother works. There is plenty of opportunity to adapt this plan to suit the expanding needs of the child - for school, sports, and other activities that correspond to growth of their son. Indeed, the overnight limitation is to minimize the early morning wake-ups for the child, which is subject to change as he gets older and his world grows. The challenge for the parents is can they keep up with his growth? The current answer is no, and further court orders or legal interventions will not meet that challenge. Indeed, this order is about as far a legal system can take the parents absent a life-changing event. It is now up to parents to take the next steps. If they can agree on the need for a next step but not the who or how, the court stands ready to decide based on a petition to designate. 1 In sports, the next level is the moment where the game slows down; in education, it is the time where the light bulb goes on; in advertising, it is seeing the arrow between the “e” and “x” in FedEx. It happens for some, not all, and cannot be forced. 10 2016-00825 A final word on Father’s request to remove the drug and alcohol testing provision, which is a standard clause and shall remain so in this case. The reason for it is simple, in God we trust, everyone else is subject to testing. Far too many criminal and civil cases are founded upon the scourge of drugs or alcohol in our society. This provision provides a check and balance. Father can avoid the out of area testing problem previously experienced by informing Mother he is going out of town and is not subject to local testing until his return. ORDER OF COURT th AND NOW, this 5 day of April 2018, upon the conclusion of supplemental custody trial, the Interim Custody Order of March 22, 2018, is ratified and confirmed as a final amendment to the original parenting plan. In addition, the parents are each given yearly two (2) separate vacation custodial periods of seven (7) consecutive overnights that they may utilize on a first notice basis, with minimum notice of exercise of the vacation being not less than thirty (30) days before the use. Father’s request to remove the drug testing provision is DENIED. By the Court, Thomas A. Placey, C.P.J. Distribution: John F. King, Esq. Tabetha A. Tanner, Esq. Samuel L. Andes, Esq. 11