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HomeMy WebLinkAbout00-5012 CIVILNATHAN REED, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. 00-5012 CIVIL PATRICIA REED, Defendant CIVIL ACTION - LAW IN RE: CUSTODY AND RELOCATION BEFORE HESS, J. OPINION AND ORDER In this case, the plaintiff, Nathan Reed, (father) seeks primary physical custody of his two daughters, Khelsea Lynn Reed, born August 12, 1991, and Samantha Dawn Reed, born October 3, 1993. At the same time, he seeks permission to relocate with the children to Missouri. Under this arrangement, the parties would continue to share legal custody. This is a case in which both parties have faced challenges with substance abuse. They have made great strides in this regard and there is no question that both parents are deeply devoted to their children. Much to their credit, both the father and the mother have insulated their children from any acrimony which may have developed in connection with this custody dispute. The girls have made it plain to the court that they will not choose between their parents and, instead, simply rely on the court to do what is best for them. This is the kind of matter which Judge Phyllis Beck styled as a "relocation" case in the now famous case ofGruber v. Gruber, 583 A.2d 434 (Pa. Super. 1990). As she observed in Gruber, such cases involve an attempt to resolve a conflict "with deep and almost irreconcilable competing interests at stake." Id~. at 437. This is, indeed, such a case. 00-5012 CIVIL The Gruber case concerned a primary custodial parent, a mother, who sought to move from Pennsylvania to Illinois with her three children. The court held that, in assessing the mother' s request, the trial judge should consider: 1. The potential advantages of the proposed move and the likelihood that it would substantially improve the quality of life for the custodial parent and the children, including any noneconomic factors that might contribute to happiness and well being; 2. The integrity of the motives of both parents, the one seeking to move and the one opposing the move; and 3. The availability of realistic, substitute visitation arrangements to foster the ongoing relationship between the children and the noncustodial parents, with the caveat that the existing pattern of visitation need not be reproduced as each case will require a balancing of all interests. Gruber, 583A.2d 434,438-439. It is now clear that the Gruber analysis applies to shared custody arrangements, whether or not a court order exists. Hurley v. Hurley, 754 A.2d 1283 (Pa. Super. 2000) (Shared custody arrangement by agreement.) Thomas v. Thomas, 739 A.2d 206 (Pa. Super. 1999) (Court order for shared custody in place.) In such a situation, the parents stand on equal footing and the decision with regard to primary custody is made in conjunction with that involving relocation. ~ With this in mind, we review the facts. ~ In a concurring opinion in Thomas, Judge Ford Elliott suggests that in applying Gruber to shared custody cases, the court must, by necessity, first make a decision with regard to primary custody. This does not appear to be the position adopted by a majority of the Superior Court. 2 00-5012 CIVIL The parties were married in Missouri in 1991. They moved to Pennsylvania in 1999. While in Missouri, the parties struggled with the use of marijuana and alcohol. They separated multiple times. When they moved to Pennsylvania they moved in with Nathan' s parents who were living in the Harrisburg area. They then obtained their own apartment in Harrisburg and remained there until their separation in July of 2000. Upon separation, the father took the children back to his parents' home but the children eventually returned to their mother. She, however, agreed to again change residential custody during the school year in part due to the recommendation of Dr. Arnold T. Shienvold. In his evaluation of April 10, 2001, Dr. Shienvold raised serious questions about both parties' parenting abilities but recommended that the father have primary physical custody of the children during the school year. That recommendation was premised in large part on the fact that the father lived with his parents, John and Margo Reed, who could provide steady supervision and nurturing of the minor children. When the father's parents moved back to Missouri in January of 2002, the parties continued to follow the previously agreed upon custodial arrangement with the father having primary custody during the school year. The mother had liberal periods of custody, including two out of three weekends and one evening after school. During the summer, the parties alternated custody on a weekly basis. We mention Dr. Shienvold's report only as part of the history of this case. We agree with counsel for the mother that his report does not reflect the current situation of the parties. In March of 2002, the mother filed a petition seeking primary physical custody. The father counterclaimed in April of 2002 petitioning for permission to relocate with the children to 00-5012 CIVIL live with his parents in Missouri. Two hearings were held in this matter in August of 2002. The more salient facts of this case are as follows. After the father's parents moved back to Missouri in January of 2002, the children continued in the custody of their father. They saw their mother on weekends and frequently after school. While the mother had some transportation problems, they are no longer significant. It is clear that both parents have regular and frequent contact with their children. The father currently does warehouse work which is at a wage of $8.00 an hour. He is desirous of relocating to Missouri. It is there that he plans to eventually take over the ownership of a family landscaping business. His initial salary will be roughly $12.00 an hour. His plans are to take business courses and small engine repair courses and to pursue education which will certify him in the handling of various horticultural chemicals. Mr. Reed will again be living with his parents whose home he previously occupied with the children. The children would be attending school on a year-round basis. This involves school sessions of approximately two months' duration separated by a three-week break. Should the mother choose to remain in Pennsylvania, she would have custody during many of these three-week periods. During our recent hearings, Mr. Reed's father verified many of the benefits which would await the family in Missouri. Mr. Robert Reed Jr. is a fifty-six-year-old college graduate who indicates that he is in good health. He has been married to Margo Reed, Nathan Reed's mother, for thirty-seven years. There is no question that the grandparents would have a very stabilizing influence on the children who are the subject of this custody case. In the meantime, a move to Missouri would afford their father the opportunity, for the first time, to enjoy a secure financial future. The landscaping business in Missouri is known as Yard Works. It is debt free. Mr. 4 00-5012 CIVIL Robert Reed plans to expand the business over the next six or seven years and then retire, turning the business over to Nathan. A move of the children to Missouri would place them close to the extended family of both of their parents. In the meantime, were the father to live with his parents, he would have no concerns with regard to childcare. The girls would have supervised time for homework, something which they do not now enjoy. There would, in other words, not only be benefits to the children ancillary to the father's improved financial situation, but there would be direct positive benefits which would flow to the children from their new living arrangement. While the benefits of the children's relocation to Missouri are obvious, we do not mean to suggest that this is an easy case. The mother has made great progress in her own situation and appears to be winning her battle with substance abuse. Here in Pennsylvania, however, the children have gone without medical insurance. The issue of the ADHD diagnosis of one of the girls has gone unaddressed. It is true that the mother is close to her daughters. "They tell [her] things that they don't feel comfortable telling their dad .... [T]hey love their dad but there are some things that they tell mom and [they] talk." N.T. 13. The mother is justifiably concerned that a move on the part of the children to Missouri would negatively impact on her relationship with them. She does, however, have relatives in Missouri and visits with them during the year. In the meantime, the economic picture is not particularly bright if the children are placed in their mother's custody. Her employment history involves mostly part-time work, frequent job changes, low pay and no benefits. We do not mean to suggest that the mother's income is a controlling factor. Were she to have custody of the children, the father would, of course, have a child support obligation. 00-5012 CIVIL Nonetheless, the mother could not sustain even a reasonable standard of living without full-time employment which would place additional stress on the family and result in something of a latchkey existence for the children. This arrangement, while acceptable, is inferior to the situation where the paternal grandparents are available for daycare. The father has indicated that he will waive both support and support arrearages if the mother will pay for the children's transportation costs. We agree that, if the father moves to Missouri, the financial dynamic between the parties will have to be addressed. Our inclination would be to put the financial burden of the children's transportation on the father because it is he who is relocating and it is he who will be in a better financial position to bear the burden. Waiving child support would be one, though not the only, way in which the father could meet this responsibility. At our recent hearings, the central questions were the matter of primary physical custody and the father's relocation to Missouri. After lengthy consideration of this very difficult case, we are satisfied that the best interests of the children dictate the grant of the father's request. The parties, however, have not been given the opportunity to address the logistics of the mother's periods of partial custody. Before entering a final order in this case, we will permit the parties to submit proposals with regard to facilitating contact between the mother and the children in the event the father were to move to Missouri. ORDER AND NOW, this day of October, 2002, in accordance with the opinion filed of even date herewith, custody of the children of the parties, Khelsea Reed, born August 12, 1991, and Samantha Reed, born October 3, 1993, is awarded to their father, the plaintiff, Nathan 00-5012 CIVIL Reed. His request for relocation to the state of Missouri will be granted. This is an interim and not a final order of court. The parties are granted fifteen (15) days within which to submit to the court written proposals with respect to the mother's period of partial custody. The submission of any such proposal shall not be deemed a waiver of the right to except to any final order or to appeal therefrom. BY THE COURT, Kevin A. Hess, J. Patricia Romano, Esquire For the Plaintiff Joan Carey, Esquire For the Defendant :rlm NATHAN REED, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. 00-5012 CIVIL PATRICIA REED, Defendant CIVIL ACTION - LAW IN RE: CUSTODY AND RELOCATION BEFORE HESS, J. ORDER AND NOW, this day of October, 2002, in accordance with the opinion filed of even date herewith, custody of the children of the parties, Khelsea Reed, born August 12, 1991, and Samantha Reed, born October 3, 1993, is awarded to their father, the plaintiff, Nathan Reed. His request for relocation to the state of Missouri will be granted. This is an interim and not a final order of court. The parties are granted fifteen (15) days within which to submit to the court written proposals with respect to the mother's period of partial custody. The submission of any such proposal shall not be deemed a waiver of the right to except to any final order or to appeal therefrom. BY THE COURT, Kevin A. Hess, J. Patricia Romano, Esquire For the Plaintiff Joan Carey, Esquire For the Defendant 00-5012 CIVIL :rlm