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HomeMy WebLinkAbout99-7348 civil termDIANA CLARK, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. KENNETH CLARK, DEFENDANT 99-7348 CIVIL TERM IN RE: CUSTODY ORDER OF COURT AND NOW, this ~ day of March, 2000, IT IS ORDERED: (1) Diana Clark and Kenneth Clark shall have joint legal custody of Samantha Clark, born September 10, 1986, and Nicole Clark, born September 9, 1988. (2) The petition of the mother to move Samantha and Nicole to Lagrange, Ohio, IS DENIED, (3) The father shall have primary physical custody of Samantha and Nicole. (4) The mother shall have temporary physical custody as follows: (a) During each summer for a four week continuous period starting on the first Saturday after the school year ends. Then after a two week continuous period with the father, the mother shall have another three week continuous period. (b) From after school on the Wednesday before Thanksgiving through the day before school begins. (c) From each December 26th through the last day before school begins. (d) From the end of school on the day before spring school vacation 99-7348 CIVIL TERM starts through the day before it ends. (e) In this area from any Friday evening through Sunday evening or Monday evening if Monday is a holiday that the mother is visiting. (5) The parties shall share transportation for all such periods of temporary physical custody and cooperate in advance in making such arrangements. Unless otherwise agreed the exchanges for custody when the children visit their mother in Ohio shall take place at Exit 6 of the Pennsylvania Turnpike at Monroeville. (6) The father shall insure that the children are in contact with their mother by telephone at least two times per week, and he shall cooperate with the mother in setting the times for these calls. He shall not monitor the calls. (7) The father shall immediately secure counseling for Samantha and Nicole to support them being better able to adjust to their parents' separation and any other issues deemed appropriate by the counselor. By the-Court, Edgar B. Bayl~ J. James J. Kayer, Esquire For the Mother Thomas S. Diehl, Esquire For the Father :saa DIANA CLARK, IN THE COURT Of COMMON PLEAS Of PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. KENNETH CLARK, DEFENDANT 99-7348 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., March 6, 2000:-- Diana Clark, age 35 and Kenneth Clark, age 38, were married on July 12, 1985. They have two daughters Samantha, age 13, born September 10, 1986, and Nicole, age 11, born September 9, 1988. The parents moved to 457 North Pitt Street, Carlisle, Cumberland County in April, 1988. They had previously lived in Shermans Dale, Perry County for a few months, and before that in Hershey for approximately three years, and before that in Lebanon for approximately six years. The father and mother have had some difficulties in the early years of their marriage much of which related to the father's short temper. They undertook marriage counseling which helped, and things went generally well until a couple of years ago. In September, 1999, as the marriage was deteriorating, the father started communicating on the Internet with a woman in Ohio. The mother discovered these communications yet she was willing to accompany the father to Ohio when he wanted to meet that woman, Bonnie Moore. The mother left the marital home on November 23, 1999. A divorce is pending. Bonnie Moore moved in with the father in Carlisle on November 13, 99-7348 CIVIL TERM 1999. Moore has three children ages 22, 19 and 16. The oldest is married, the middle child lives with her boyfriend in Ohio, and the youngest lives with her father in Ohio. The mother moved to Lagrange, Ohio, and into a home owned by Bonnie Moore's husband John Moore. Moore lives in another home he owns in Lagrange. Lagrange is thirty-five miles west of Cleveland which is a five-hour drive from Carlisle. The mother testified that she had been subjected to verbal and physical abuse by her husband during the last couple of years. She related an incident in October when he physically grabbed her and pushed her in front of Samantha which the father denied. The mother testified that she chose to go to Ohio to get completely away from Carlisle because she is afraid of her husband. She stated that the father has threatened her that if she does not drop this custody case there will be blood on her hands. Before she left Carlisle the mother had been working cleaning homes. She has obtained a full-time job as a cook in a restaurant in Lagrange. She works from 9:00 a.m. to 4:00 p.m. with two days off a week which are now Tuesdays and Saturdays. The father has been in the disc jockey business for seven years. He has three employees and he normally works Thursday, Friday and Saturday evenings. He recently started a power wash business, which he operates with Bonnie Moore, where he works during the week from 8:00 a.m. to about 2:00 p.m. Those hours are flexible so that he can be available for the girls if they need him. The father's driver's license was suspended in 1983, and because of a series of driving under suspension convictions it has never been reinstated. -2- 99-7348 CIVIL TERM Samantha has reactive airway disease which is a severe form of asthma. She needs a very clear-air environment and takes steroids to combat the disease. At times she has had trouble gaining weight because of the steroids. In January, her physician was able to reduce her medication and she has been doing better. Samantha is in sixth grade and Nicole is in fifth grade in the Carlisle School system. Both girls have had a substantial amount of absenteeism and tardiness since their parents separated. They are also having difficulties in school and Samantha is repeating sixth grade. These lovely, well-spoken girls appear immature for their chronological ages. After the mother moved to Ohio she saw her daughters for a few hours at Thanksgiving when the parents met in Monroeville, Pa., which is about halfway between their homes. She made arrangements for both girls to spend a week with her in Lagrange over Christmas but Nicole did not want to come and her father did not force her to go. Samantha did go and the mother testified that they had a wonderful time. When we spoke to the girls in chambers it was obvious that the separation of their parents was very traumatic for them. They both expressed, with Nicole being somewhat hesitant, a desire to see more of their mother. After the hearing the mother spent the weekend with the girls in this area. The mother has been having difficulty contacting the children by telephone. She often gets an answering machine and the father never has the children call back. When she is able to talk to them the conversations are monitored. Since a temporary custody order was entered on January 27, 2000, following a conciliation conference, the girls have called her one time -3- 99-7348 CIVIL TERM although that order provides for one call a week. The maternal grandmother and the mother's brother, grandmother, cousin, uncle and aunt live in the Harrisburg area. Her father lives in Altoona. During the last two years she as well as the girls have had no contact with her family. The mother blamed this on the unwillingness of the father to participate in doing things with her family. The father testified that a rift with the maternal grandmother occurred when he and the mother were at a DJ session and they received a call that Nicole was ill. The father telephoned the maternal grandmother and asked her to look after Nicole and the grandmother refused. The father testified that he then told the grandmother, in effect, to "fuck off." The mother testified that she is now repairing her relationship with her mother who had in earlier years often seen the girls.' When the mother's cousin, Pam Sultzaberger, recently tried to contact the children the father sent her an email stating that he did not want to have anything to do with any of his wife's side of the family, and if she persisted in contacting him regarding the children "it will be war." Most of the father's family lives in York and Lancaster. When the parents were living together the children often saw those family members but that contact has decreased since they separated. The mother seeks primary physical custody of Samantha and Nicole and permission to move them to Lagrange, Ohio. She believes that she can provide the The maternal grandmother testified on behalf of her daughter. -4- 99-7348 CIVIL TERM children with a more stable environment than the father and that it would be in their best interest to live with her. She testified that the father was very lenient with the girls and used to constantly undermine her authority when she insisted upon them doing more homework or chores around the house. She testified that she intends to stay in Ohio. She has checked the facilities at the local school district which she indicates is ranked tenth in the state of Ohio. Both children would take a bus to school at 8:00 a.m. Samantha would be home at 3:00 p.m. and Nicole at 3:30 p.m. The mother said that she would have the children dropped off at her place of work where they could do homework until her shift ends. The father seeks primary physical custody of the girls and an order prohibiting the mother from moving them to Ohio. He believes that he can provide a stable environment for the children and that it is not in their best interest to move with the mother to Ohio. He notes the difficulties that Nicole has been having with the mother but conveniently forgets that it was his bizarre conduct that was the final straw resulting in the mother separating and his email girlfriend then moving in with him. Of course the mother's reaction to the father's conduct was likewise bizarre. Despite the trauma of these events on the children the father has not had the foresight to have them undertake some counseling to help them deal with the situation. The fact that the girls have had significant absenteeism and tardiness at school coupled with a decrease in their grades leaves no doubt that the father has not responded well to their current needs. The girls had been walking to school and the father now has Bonnie Moore -5- 99-7348 CIVIL TERM drive them in order to get there on time. Moore also drives the father around since he does not have a license. Both girls attend church at the Salvation Army. They also attend a girls club and youth bible study on most Tuesday evenings and a teen program on Thursday evenings. For the last two years they have both attended a Salvation Army seven-day summer camp in northeast Pennsylvania. Both of them get much benefit from these activities at the Salvation Army. The mother testified that there is a Salvation Army unit near where she lives and if the girls moved to Ohio she will enroll them in that program. 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 to another state 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 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 "[r]efines upon, but does not alter the basic and determinative inquiry as to the direction in which the best interests of the child lie." The situation in the father's house is hardly ideal. He has little appreciation of -6- 99-7348 CIVIL TERM the emotional support that these girls need. He is working on Thursday, Friday and Saturday evenings when the girls are left with Bonnie Moore. Yet, it is hard to find support for the mother's situation. About the best that can be said is that John Moore provides her a place to live rent-free which is of great assistance given her limited financial resources, and that she has secured full-time employment. That situation, however, is not a prescription for stability. The mother could certainly find a full-time job as a cook in this area where she has family that would likely assist her through these difficult times. Her precipitous move to Ohio has left Samantha and Nicole bewildered, hurt and in a vacuum. There is no doubt that the mother loves the girls and genuinely feels that she can provide them better care than the father. However, we find that her protest that she felt it was necessary to move out of the area to protect herself lacks credibility. Notwithstanding the difficulties that the parties had when they lived together the evidence does not support a finding that the father is a physical threat to the mother especially now that they are separated. We conclude that there are few advantages of the mother's move to Ohio', little likelihood that it will substantially improve the quality of her life or the life of the children, and that it was a result of a momentary whim. On a whole we are satisfied that the best interest of the children do not lie in their moving to Ohio, and that the mother has not met the standards to move them under Gruber. The mother's motive for the move is questionable and the motive of the father to prevent the children from moving to Ohio is reasonable. A move to Ohio would make substitute visitation arrangements difficult -7- 99-7348 CIVIL TERM although since the mother remains in Ohio we will provide her with periods of temporary physical custody as are reasonably possible. For the foregoing reasons the following order is entered. ORDER OF COURT AND NOW, this {//'~ day of March, 2000, IT IS ORDERED: (1) Diana Clark and Kenneth Clark shall have joint legal custody of Samantha Clark, born September 10, 1986, and Nicole Clark, born September 9, 1988. (2) The petition of the mother to move Samantha and Nicole to Lagrange, Ohio, IS DENIED. (3) The father shall have primary physical custody of Samantha and Nicole. (4) The mother shall have temporary physical custody as follows: (a) During each summer for a four week continuous period starting on the first Saturday after the school year ends. Then after a two week continuous period with the father, the mother shall have another three week continuous period. (b) From after school on the Wednesday before Thanksgiving through the day before school begins. (c) From each December 26th through the last day before school begins. (d) From the end of school on the day before spring school vacation starts through the day before it ends. (e) In this area from any Friday evening through Sunday evening or -8- 99-7348 CIVIL TERM Monday evening if Monday is a holiday that the mother is visiting. (5) The parties shall share transportation for all such periods of temporary physical custody and cooperate in advance in making such arrangements. Unless otherwise agreed the exchanges for custody when the children visit their mother in Ohio shall take place at Exit 6 of the Pennsylvania Turnpike at Monroeville. (6) The father shall insure that the children are in contact with their mother by telephone at least two times per week, and he shall cooperate with the mother in setting the times for these calls. He shall not monitor the calls. (7) The father shall immediately secure counseling for Samantha and Nicole to support them being better able to adjust to their parents' separation and any other issues deemed appropriate by the counselor. By th..e C~'rt,' Edgar B. Bayl~y, J. James J. Kayer, Esquire For the Mother Thomas S. Diehl, Esquire For the Father :saa -9-