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HomeMy WebLinkAbout98-1653 civil termANTONIA ZAWISA, IN THE COURT Of COMMON PLEAS Of PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. : DAVID H. ZAWlSA, DEFENDANT 98-1653 CIVIL TERM IN RE: CUSTODY ORDER OF COURT AND NOW, this_~__~ day of February, 2000, IT IS ORDERED: (1) All prior custody orders are vacated and replaced with this order. (2) Antonia C. Zawisa and David H. Zawisa shall have shared legal custody of Zachary Zawisa, born May 20, 1986, Nicholas Zawisa, born April 17, 1988, and Jacqueline Zawisa, born March 14, 1996. (3) The mother shall have primary physical custody of the three children. (4) The mother may move the three children to Philipsburg, Centre County, Pennsylvania. (5) The father shall have temporary physical custody of Zachary and Nicholas as the parties agree. (6) The father shall have temporary physical custody of Jacqueline as follows: (a) Every other weekend from Friday until Sunday evening. This period shall extend to Monday evening if Monday is a holiday. (b) On any one weekday in Philipsburg until 8:30 p.m. The father shall give the mother at least three days notice of such a visit with the time that he will arrive. (c) During each summer for two separate periods. The first period shall be for three consecutive weeks. The mother shall then have two consecutive weeks and the father shall have another four consecutive weeks. The parents shall make arrangements for these periods not later than June 15~ each year. (d) Each December 26~ through January 1st. The mother shall always have the children on Christmas Eve and Christmas Day. (e) Every year from Wednesday on the day before Thanksgiving through Sunday evening. (7) The parents shall share transportation. By the Court, l~ Edgar B. Bayley, J. ~ P. Richard Wagner, Esquire For Plaintiff Barbara J. Patton, Esquire For Defendant Court Administrator Dr. Arnold Shienvold :saa ANTONIA ZAWISA, In THE COURT Of COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DAVID H. ZAWlSA, DEFENDANT 98-1653 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., February 9, 2000:-- A hearing in this custody case was conducted on January 25, 2000. Antonia C. Zawisa and David H. Zawisa were married on December 14, 1985. They separated in December, 1997. They have three children, Zachary, age 13, born May 20, 1986, Nicholas, age 11, born April 17, 1988, and Jacqueline, age 3, born March 14, 1996. There is a divorce pending between the parents. The mother, age 39, lives with the three children in the marital home in Boiling Springs, Cumberland County. The father, age 38, lives with Theresa Marchut, age 46, in Boiling Springs approximately a mile and a half from the mother. Marchut's nine-year-old grandson lives with them. She met the father in May, 1998, and they started living together in December, 1998. The mother, who has a Bachelor of Arts degree, is an environmental planning supervisor for the Pennsylvania Department of Transportation. She works in Harrisburg where she supervises a small staff. The job requires some fieldwork that entails overnight travel which has been at least two nights a month and sometimes more. Because of recent turmoil involving the parties' children the Department has temporarily 98-1653 CIVIL TERM allowed the mother not to undertake overnight travel for the last two months. The father is a survey technician for the Department of Transportation. He works Monday through Friday from 7:00 a.m. to 3:30 p.m. During the school year Theresa Marchut drives a school bus for the Carlisle School District. Following the parties' separation in December, 1998, the father saw the three children on a daily basis. A custody order was entered by agreement on June 29, 1998. That order provides for shared legal custody of their three children. The mother has primary physical custody. The father has the children: [o]n every school day from after school until the Mother picks them up at the Father's residence after work at 5:30 p.m., with the exception of Tuesdays and Thursdays, when the Father shall have custody of the Children until 8:00 p.m. In addition during the school year, the Father shall have custody of the Children on alternating weekends from Friday after school until Sunday at 8:00 p.m .... Although Jacqueline is not yet in school the same time periods apply to her. The order also sets a schedule for holidays and for the summer that provided extensive periods of time to the father. The case came before the court again in 1999. At a conciliation conference the parties agreed to have a custody evaluation performed by a psychologist, Arnold Shienvold, Ph.D. An order was entered continuing the custody schedule set in the order of June 29, 1998, with some modifications for the summer schedule in 1999. A comprehensive custody evaluation was then performed by Dr. Shienvold. He found that Zachary has a history of depression and attention deficit disorder for which he -2- 98-1653 CIVIL TERM takes medications. He has difficulty in school. Both boys have been adversely affected by the breakup of their parents. Nicholas does better than Zachary in school but is impulsive and has problems with conduct. When the parents lived together the boys witnessed some physical abuse of the mother by the father, and some mental abuse, although the latter was clearly not a one-way street. The father believes that the children need a firm authoritarian structure to control their behavior. He criticizes the mother as being inconsistent in her relationship with them and of undermining his own efforts. Dr. Shienvold concluded that the mother has a better feel for the children's needs and that the father is a more rigid and authoritarian individual. He believed that the father's concerns of the mother's handling of the children is an overreaction to her parenting style. He also believes that the father has a lack of recognition of the problems of the children. The father is undergoing counseling to deal with his temper and parenting style and, in the opinion of Dr. Shienvold, has been making positive strides. Also, on the recommendation of Dr. Shienvold, both parents have undertaken relationship counseling in an effort to better their communication regarding the children. Dr. Shienvold was of the opinion that the court ordered custody arrangement was meeting the needs of the children and he was of the opinion that it continue. However, before he filed a report the behavior of Nicholas and Zachary deteriorated significantly, especially when they were in the father's home. Nicholas was acting violently with the father and Marchut and on several occasions his aggressive conduct occurred in his mother's home. He was also acting aggressively toward Zachary. In -3- 98-1653 CIVIL TERM the latter part of October, 1999, Nicholas became violent in the home of his father and left the residence to walk to his mother's home. The father called the police who intercepted Nicholas. Nicholas then underwent three days of inpatient treatment in the Meadows psychiatric center. Since then he has been going to outpatient therapy. The father, believing that the custody order was not working, then allowed the boys to decide on any given week if they would visit with him. Now both boys have been seeing him occasionally while Jacqueline continues to be with him on a daily basis. Jacqueline has a strong relationship with both parents and her brothers. The father is satisfied with the current arrangements as long as the children remain in this area. However, the mother now seeks to relocate with the children to Philipsburg, Centre County, Pennsylvania, to which the father is opposed. The mother testified, as did her supervisor, that her section of the Department of Transportation is reorganizing and she has been asked to transfer to Philipsburg. The transfer will not result in a promotion or in any increase in pay; however, it will allow her to perform more fieldwork, as contrasted to administrative work, without the necessity for extensive overnight travel. The mother testified that her strength is in fieldwork, not administration, and that accepting the assignment in Philipsburg would give her considerably more job satisfaction as well as a reduction in stress. This job would start in mid-March. If she does not take it she will have an increase in the amount of overnight assignments out of Harrisburg which at times could be up to ten days a month. The mother has located a home to purchase in Philipsburg and has done -4- 98-1653 CIVIL TERM considerable research of the school system and other aspects of living in that area. Philipsburg, which is near State College, has much the same type of infrastructure and resources as are available in Cumberland County. It is about a two-hour drive between here and Philipsburg. In Gruber v. Gruber, 400 Pa. Super. 174 (1990), the Superior Court of Pennsylvania set 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." In determining whether Gruber applies to an intrastate relocation, as contrasted to an interstate relocation, the Court stated that "[t]he trial court must first ask whether the parent/child relationship will be affected in any negative, material way, and in its discretion determine whether such an inquiry is appropriate in a given case." Id. In the present case the father is currently estranged from both his sons. If the mother moves -5- 98-1653 CIVIL TERM to Philipsburg that will not adversely affect that relationship which, under any circumstances, can only improve. Since the father sees three-year-old Jacqueline on most days, if the mother moves to Philipsburg that will affect that relationship. A Gruber analysis must therefore be made. Siblings generally should not be separated from each other. Swope v. Swope, 455 Pa. Super. 587 (1997). Here, the children do provide support for each other. Dr. Shienvold is of the opinion that it is in their best interest to live with each other and we agree. 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 quality of life of the custodial parent, indirect benefits flow to the children with whom they reside.' This is because 'the best interest of the children 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.) All three children have a strong bond with their mother who provides them with excellent care. We find that it is in their best interest that they continue to be in her primary physical custody. We find that the mother moving to Philipsburg will substantially improve her quality of life and that her desire to move is not the result of a momentary whim. The move is being sought by her employer for whom she has worked in a good job for eight years. The alleviation of any substantial overnight travel 98-1653 CIVIL TERM will be better for her and the children. The new position will provide her more job satisfaction and less stress because she will be working more in the field which is her area of expertise. Her motives are sound. Nicholas can continue his outpatient therapy at the Meadows, which is right nearby, where he was originally treated. The mother is willing to drive to this area to continue her relationship counseling with the father. She is also willing to share transportation for the father to see his children and is agreeable to his having liberal rights of temporary physical custody. The father does not want the mother to move with the children because his contact with them, especially Jacqueline, will change. However, we are satisfied that the order we will enter provides realistic substitute arrangements that will adequately foster an ongoing relationship between Jacqueline and her father which will sustain the positive emotional bond between them. As to Zachary and Nicholas, we will enter a general order at this time. The mother shall cooperate in working to alleviate the estrangement between the boys and their father. Ideally the boys should participate in the same periods of temporary physical custody with their father as will Jacqueline. If the parties are not able to agree as to when Zachary and Nicholas shall be with their father he may petition for further relief and the case shall be assigned to this judge without first proceeding before a custody conciliator. ORDER OF COURT AND NOW, this (::~.~- day of February, 2000, IT IS ORDERED: (1) All prior custody orders are vacated and replaced with this order. -7- 98-1653 CIVIL TERM (2) Antonia C. Zawisa and David H. Zawisa shall have shared legal custody of Zachary Zawisa, born May 20, 1986, Nicholas Zawisa, born April 17, 1988, and Jacqueline Zawisa, born March 14, 1996. (3) The mother shall have primary physical custody of the three children. (4) The mother may move the three children to Philipsburg, Centre County, Pennsylvania. (5) The father shall have temporary physical Custody of Zachary and Nicholas as the parties agree. (6) The father shall have temporary physical custody of Jacqueline as follows: (a) Every other weekend from Friday until Sunday evening. This period shall extend to Monday evening if Monday is a holiday. (b) On any one weekday in Philipsburg until 8:30 p.m. The father shall give the mother at least three days notice of such a visit with the time that he will arrive. (c) During each summer for two separate periods. The first period shall be for three consecutive weeks. The mother shall then have two consecutive weeks and the father shall have another four consecutive weeks. The parents shall make arrangements for these periods not later than June 15th each year. (d) Each December 26th through January 1st. The mother shall always have the children on Christmas Eve and Christmas Day. -8- 98-1653 CIVIL TERM (e) Every year from Wednesday on the day before Thanksgiving through Sunday evening. (7) The parents shall share transportation. By th¢-Cb-U~,~. ~.~ Edgar B. Bayley, J. / P. Richard Wagner, Esquire For Plaintiff Barbara J. Patton, Esquire For Defendant Court Administrator Dr. Arnold Shienvold :saa -9-