HomeMy WebLinkAbout2007-7556J.K., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION (CUSTODY)
M.K., N/K/A M.B.,
Defendant : NO. 2007-7556 CIVIL TERM
IN RE: DEFENDANT'S PETITION FOR CONTEMPT
and MODIFICATION OF CUSTODY ORDER
BEFORE OLER, S.J.
ORDER OF COURT
ORDER OF COURT
AND NOW, this 196' day of December, 2018, upon consideration of Defendant's
Petition for Contempt of Custody Order Dated December 19, 2013, and Petition for
Modification of Custody Order, filed June 13, 2018, following a hearing held on
December 4, 2018, and for the reasons stated in the accompanying opinion, with respect
the parties' children, C.G.K. (twelve years old) and A.T.K. (eight years old), it is ordered
and directed as follows:
1. Defendant's petition for contempt is dismissed.
2. Legal custody of the children shall be shared by the parties.
3. With respect to physical custody
a. During the summer, Plaintiff father shall have
primary physical custody of the children for two
consecutive weeks out of three, from Friday at 5:00 p.m.
until Friday at 5:00 p.m., and Defendant mother shall
have partial physical custody of the children for one
week out of three, from Friday at 5:00 p.m. until Friday
at 5:00 p.m.;
b. During the school year, Defendant mother shall
have primary physical custody of the children and
Plaintiff father shall have partial physical custody of the
children on three consecutive weekends out of four,
from Friday after school until 5:00 p.m. on Sunday;
provided, that when the following Monday is a federal
holiday his period of partial physical custody shall
extend until 5:00 p.m. on Monday;
c. Notwithstanding the foregoing, during Christmas
vacation Defendant mother shall have physical custody
of the children until 3:00 p.m. on Christmas Day and
Plaintiff father shall have physical custody of the
children from 3:00 p.m. on Christmas Day until 5:00
p.m. on the day preceding resumption of school;
d. Responsibility for transportation of the children
with respect to custody exchanges shall be that of the
party receiving custody.
4. The children shall attend school in the school district serving
Defendant mother's residence.
5. Neither party shall be permitted to relocate the residence of the
children in a manner that significantly impairs the ability of another
individual who has custodial rights to the children to exercise custody
unless every such individual consents to the proposed relocation or
the court approves the proposed relocation. Any party proposing to
relocate must comply with 23 Pa. C.S. §5337.
NOTHING IN THIS order is intended to preclude the parties from deviating from
its terms by mutual consent.
BY THE COURT
.— -1 . I I.. - �. )91.
J. es ey Ol r., S.J.
Maryann Murphy, Esq.
39 West Main Street
Mechanicsburg, PA 17055
Custody Conciliator
Michelle L. Sommer, Esq.
Sommer & O'Donnell, L.L.C.
36 South Hanover St.
Carlisle, PA 17013
Attorney for Plaintiff
Rachel C. Schreck, Esq.
Zullinger Davis P.C.
74 N. Second St.
Chambersburg, PA 17201
Attorney for Defendant
Katie J. Maxwell, Esq.
54 E. Main St.
Mechanicsburg, PA 17055
Guardian ad Litem
J.K., IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION (CUSTODY)
M.K., N/K/A M.B.,
Defendant : NO. 2007-7556 CIVIL TERM
IN RE: DEFENDANT'S PETITION FOR CONTEMPT
and MODIFICATION OF CUSTODY ORDER
BEFORE OLER, S.J.
OPINION and ORDER OF COURT
OLER, S.J., December 19, 2018.
In this custody relocation case involving the parties' two children Defendant
mother has filed a petition for contempt and to modify custody.' The petition as it relates
to contempt alleges that Plaintiff father relocated the children without complying with
Section 5337 of the Domestic Relations Code, unilaterally changed their school in
violation of Defendant's legal custody rights, and restricted Defendant's custodial periods
in violation of her partial physical custody rights; the petition as it relates to modification
requests that Defendant mother be awarded primary physical custody of the children,
inter alia.
A hearing was held on the matter on December 4, 2018. For the reasons stated in
this opinion, Defendant's petition for contempt will be dismissed, primary physical
custody during the school year will be awarded to Defendant, and primary physical
custody during the summer will be awarded to Plaintiff.
FINDINGS OF FACT
1. Plaintiff is J.A.K., 38; he was a resident of Newville, Cumberland County,
Pennsylvania, prior to March 20, 2018, and since that date has been a resident of
Dillsburg, York County, Pennsylvania; he is a full-time employee of a company known
' Defendant's Petition for Contempt of Custody Order Dated December 19, 2013 and Petition for
Modification of a Custody Order, filed June 13, 2018.
as Turner Chevrolet in Harrisburg, Dauphin County, Pennsylvania, as an automotive
service technician.
2. Defendant is M.L.B., formerly known as M.K., 36; she is a resident of
Newburg, Franklin County, Pennsylvania, and a full-time employee of a company known
as SmartStyle Hair Salons in Shippensburg, Cumberland County, Pennsylvania, as a
beautician; she is also interested in pursuing a professional wrestling career.
3. The parties were married on April 21, 2006, separated on November 26, 2007,
and were divorced on November 21, 2012.
4. The parties are the parents of two children, a twelve -year-old son, C.G.K., and
an eight-year-old daughter, A.T.K. (hereinafter the children).
5. By an order of court dated July 18, 2018, Katie J. Maxwell, Esq., was appointed
guardian ad litem for the children.
6. By an order of court dated December 19, 2013, (a) legal custody of the children
was shared by the parties, (b) during the school year Plaintiff father had primary physical
custody and Defendant mother had partial physical custody from Thursday to Saturday,
and (c) during the summer Plaintiff father had physical custody from Friday to Tuesday
(four overnights) and Defendant mother had physical custody from Tuesday to Friday
(three overnights).
7. Pursuant to the said order, Plaintiff father has been the primary caregiver for the
children.
8. The said order incorporated the following provision respecting relocation:
RELOCATION: No party shall be permitted to relocate the residence of the
children which significantly impairs the ability to exercise custody unless every
individual who has custodial rights to the children consents to the proposed relocation or
the court approves the proposed relocation. A person proposing to relocate MUST
comply with 23 Pa. C.S. § 5337.z
9. The said order also incorporated the following provision respecting the
children's school district:
2 See Order of Court dated October 24, 2013, 19.
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The parents agree the children shall attend school in the school district of
Father's residence, so long as Father resides in Cumberland or Franklin County,
beginning with the 2011-2012 school year, spring semester.... 3
10. Prior to March 20, 2018, when Plaintiff father resided in Newville,
Cumberland County, Pennsylvania, and Defendant mother resided at her current address
in Newburg, Franklin County, Pennsylvania, the parties' residences were about 15 miles
apart; as of Plaintiff father's relocation to his current address in Dillsburg, York County,
Pennsylvania, the parties' residences are about 50 miles apart, according to Defendant
mother.
11. Prior to Plaintiff's relocation on March 20, 2018, the children attended school
in the school district serving his residence in Cumberland County, which was the Big
Spring School District; subsequent to the relocation, the children have been attending the
school district serving his current residence, which is the Northern York School District
in York County; the school district that serves Defendant mother's residence is the
Chambersburg Area School District in Franklin County.
12. The children have always done well in school.
13. The parties have stipulated that Plaintiff's change of residence on March 20,
2018, constituted a "relocation" as defined in Section 5322(a) of the Domestic Relations
Code.4
14. Although Plaintiff father advised Defendant mother of his intention to move
shortly before doing so, and did not receive an immediate objection to it, he did not
follow the procedure for relocation provided for in Section 5337(c) of the Domestic
Relations Code.
15. Defendant mother's delay in filing a formal objection to the relocation from
March 20, 2018, to June 13, 2018, was attributed by her to an initial insufficiency of
funds to retain counsel.
3 See Order of Court dated March 30, 2012, ¶8(b) (emphasis added).
4 23 Pa. C.S. §5322(a).
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16. Plaintiff's relocation from Newville, Cumberland County, Pennsylvania, to
Dillsburg, York County, Pennsylvania (a) put him in closer proximity to new
employment in Harrisburg, Dauphin County, Pennsylvania, which provided more flexible
hours and increased compensation, and (b) facilitated his commencement of residence
with his fiance, in a home owned by her and her former husband, which was more
modern than his previous residence.
17. Plaintiff had been dating his fiance for less than four months prior to relocating
to her residence.
18. Plaintiff father's current household consists of himself, his fiance, his fiance's
15 -year-old son and 13 -year-old daughter, and the parties' children during his custodial
periods with them; prior to March 20, 2018, his household consisted of himself and the
parties' children during his custodial periods with them.
19. Defendant mother's household consists of herself, her 17 -year-old son by
another relationship, her 14 -year-old daughter by another relationship, and the parties'
children during her custodial periods with them.
20. With respect to extended families, Plaintiff father's parents and sister reside in
the area; and Defendant's mother, brother and two aunts reside in the area.
21. In the past, Defendant mother's household included a man who was physically
abusive toward her and who is presently incarcerated pending trial on a charge of sexual
abuse of his (the man's) and Defendant's daughter.
22. Defendant's involvement in an abusive relationship provided a basis for one
witness's observation that Defendant's judgment in personal matters had not always been
sound.
23. A recent Facebook portrayal of an engagement between Defendant mother and
a professional wrestler was attributed by Defendant to a public relations campaign to
enhance their professional wrestling careers rather than a romantic relationship.
24. Plaintiff mother has not always exercised her full rights to partial physical
custody of the children.
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25. Communications between the parties regarding the children have deteriorated
since December of 2017.
26. In June of 2018, Plaintiff father blocked calls from Defendant mother on the
phone of the parties' son for a period of two weeks.
27. Recently, the parties' daughter has seemed less self-confident than she was in
the past.
28. The children have expressed to their guardian ad litem a preference to live
primarily with Defendant, the mother.
29. The children have advised their guardian ad litem that they feel unduly
pressured by Plaintiff father with respect to the parties' custody dispute.
30. The children have advised their guardian ad litem that they would be
comfortable transferring to the school district serving Defendant mother's residence.
31. The children's guardian ad litem has recommended that Defendant mother be
awarded primary physical custody of the children during the school year.
32. The evidence presented did not lead the court to conclude that either household
has a history of drug or alcohol abuse, that either party has been motivated by a desire to
turn the children against the other parent, that appropriate child-care arrangements would
not be available to either parry, or that either party suffers from a mental or physical
condition that would adversely affect his or her parenting capacity.
STATEMENT OF LAW
Custody considerations in general. Under Section 5328 of Pennsylvania's
Uniform Child Custody Jurisdiction Act, it is provided as follows:
(a) Factors.— In ordering any form of custody, the court shall determine the best
interest of the child by considering all relevant factors, giving weighted consideration
to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing
contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party's
household, whether there is a continued risk of harm to the child or an abused
party and which party can better provide adequate physical safeguards and
supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of
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child abuse and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's education, family life and
community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well -reasoned preference of the child, based on the child's maturity and
judgment.
(8) The attempts of a parent to turn the child against the other parent, except in
cases of domestic violence where reasonable safety measures are necessary to
protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and
nurturing relationship with the child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional,
developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to make appropriate
child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the
parties to cooperate with one another. A party's effort to protect a child from
abuse by another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party's
household.
(15) The mental and physical condition of a party or member of a party's
household.
(16) Any other relevant factor.
(b) Gender ventral.— In making a determination under subsection (a), no party shall
receive preference based upon gender in any award granted under this chapter.
Section 5329.1(a)(1) and (2) of the act, referred to in the factors for consideration,
provides as follows:
(a) Information sharing.—In accordance with section 6340(a)(5.1) (relating to release
of information in confidential reports), where a party seeks any form of custody
subject to the examination of the parties, the court shall determine:
(1) With respect to child abuse under Chapter 63 (relating to child protective
services) or a child who is a victim of a crime under 18 Pa.C.S. (relating to
crimes and offenses) which would constitute abuse under Chapter 63:
5 23 Pa. C.S. §5328(a), (b).
(i) Whether the child is the subject of an indicated or founded
report of child abuse.
(ii) Whether a party or a member of the party's household has
been identified as the perpetrator in an indicated or founded
report of child abuse.
(iii) The date and circumstances of the child abuse.
(iv) The jurisdiction where the child abuse investigation took
place.
(2) With respect to child protective services or general protective services under
Chapter 63:
(i) Whether a party or a member of a party's household has been
provided services.
(ii) The type of services provided.
(iii) The circumstances surrounding the provision of services.
(iv) The status of services.
(v) The date the services were provided.
(vi) The jurisdiction where the services were provided.6
As suggested by the numerous factors to be considered, every custody case must
be decided on the basis of its own facts, with the paramount concern being the best
interests of the child .8 "The `best interests' standard, decided on a case-by-case basis,
considers all factors which legitimately have an effect upon the child's physical,
intellectual, moral and spiritual well-being." Sawko v. Sawko, 425 Pa. Super. 450, 454,
625 A.2d 692, 693 (1993).
Relocation cases. For purposes of custody in Pennsylvania, a "relocation" is "[a]
change in a residence of the child which significantly impairs the ability of a
nonrelocating party to exercise custodial rights." 23 Pa. C.S. §5322(a). Where a
relocation is proposed, "[n]otice, sent by certified mail, return receipt requested, shall be
given [to the non -relocating party] no later than:
(i) the 60'h day before the date of the proposed relocation; or
(ii) the tenth day after the date that the individual knows of the relocation, if:
6 23 Pa. C.S. §5329.1(a)(1), (2).
Sawko v. Sawko, 425 Pa. Super. 450, 625 A.2d 693 (1993).
8 B.C.S. v. JA. S., 2010 PA Super 63, 994 A.2d 600.
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(A) the individual did not know and could not reasonably have
known of the relocation in sufficient time to comply with the
60 -day notice; and
(B) it is not reasonably possible to delay the date of relocation so
as to comply with the 60 -day notice.
23 Pa. C.S. §5337(c).9
"The party proposing a relocation has the burden of establishing that the relocation
will serve the best interest of the child as shown under [the factors recited hereafter]," and
"[e]ach party has the burden of establishing the integrity of that party's motives in either
seeking the relocation or seeking to prevent the relocation." 23 Pa. C.S. §5337(i).
The filing of a petition for relocation does not, of itself, represent a waiver of the
issue of whether a statutory relocation is actually involved or create a presumption that
the proposed move would constitute such a relocation. C M.K. v. K.E.M., 2012 PA Super
76, 45 A.3d 417. No presumption in favor of the move is created by the occurrence of the
relocation prior to the hearing. 23 Pa. C.S. §5337(1).
"Relocation factors" to be considered by a court in determining whether to grant a
proposed relocation, with weighted consideration to be given to those affecting the
child's safety, are as follows:
(1) The nature, quality, extent of involvement and duration of the child's relationship
with the party proposing to relocate and with the nonrelocating party, siblings and
other significant persons in the child's life.
(2) The age, developmental stage, needs of the child and the likely impact the relocation
will have on the child's physical, educational and emotional development, taking into
consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the nonrelocating party and the
child through suitable custody arrangements, considering the logistics and financial
circumstances of the parties.
(4) The child's preference, taking into consideration the age and maturity of the child.
9 Where a failure to provide reasonable notice of the proposed relocation has occurred, the court may
consider the failure (1) a factor in making a determination regarding the relocation, (2) a factor in
determining whether custody rights should be modified, (3) a basis for ordering the return of the child to
the nonrelocating party if the relocation has occurred without reasonable notice, (4) sufficient cause to
order the party proposing the relocation to pay reasonable expenses and counsel fees incurred by the party
objecting to the relocation, and a ground for contempt and the imposition of sanctions against the party
proposing the relocation. 23 Pa. C.S. §53370).
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(5) Whether there is an established pattern of conduct of either party to promote or
thwart the relationship of the child and the other party.
(6) Whether the relocation will enhance the general quality of life for the party seeking
the relocation, including, but not limited to, financial or emotional benefit or
educational opportunity.
(7) Whether the relocation will enhance the general quality of life for the child,
including, but not limited to, financial or emotional benefit or educational
opportunity.
(8) The reasons and motivation of each party for seeking or opposing the relocation.
(9) The present and past abuse committed by a party or member of the party's household
and whether there is a continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the child.
23 Pa. C.S. §5337(h).
Modification of custody. Section 5338 of the Domestic Relations Code
"provides that, upon petition, a trial court may modify a custody order if it serves the best
interests of the child." R.S. v. T.T., 2015 PA Super 72, ¶ , 1.13 A.3d 1254, 1257. "In a
case which presents the possibility of a change in custody, it is incumbent on the court to
fully discuss the possible effect on the child of the proposed transfer of custody." E.G.L.
v. L.J.W., 443 Pa. Super. 573, 590, 662 A.2d 1109, 1117 (1995). "The court must give
attention to the benefits of continuity and stability in custody arrangements and to the
possibility of harm arising from disruption of longstanding patterns of care." Johns v.
Cioci, 2004 PA Super 492, ¶19, 865 A.2d 931, 937.
Contempt. "To sustain a finding of civil contempt, the complainant must prove
certain distinct elements by a preponderance of the evidence: (1) that the contemnor had
notice of the specific order or decree which he is alleged to have disobeyed; (2) that the
act constituting the contemnor's violation was volitional; and (3) that the contemnor
acted with wrongful intent." P.H.D. v. R.R.D., 2012 PA Super 246, ¶ , 56 A.3d 702,
706. An adjudication on the issue of civil contempt in a custody case is within the sound
discretion of the trial court. Flannery v. Iberti, 2000 PA Super 369, 763 A.2d 927.
DISCUSSION
In the present case, factors tending to favor Plaintiff father's position on
Defendant's petition to modify and petition for contempt include the absence of an
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immediate objection on Defendant's part to his relocation, the advantages to him of the
relocation in terms of residency with his fiance, a more modem dwelling, and proximity
to better employment, his history as the children's primary caretaker, Plaintiff's
somewhat problematic personal history, and her failure on occasion to fully exercise her
custodial opportunities. Factors tending to favor Defendant mother's position include
Plaintiffs failure to follow the statutory relocation procedure, his lack of any legally
enforceable interest in the new residence, the difficulty of accommodating Defendant's
custodial interests to the relocation, the presence of half -siblings of the children in
Defendant's household, the children's preference to reside primarily with Defendant, the
stress to which the children are being subjected in Plaintiff's household, and the
recommendation of the children's guardian ad litem.
With respect to Defendant's petition for contempt, and in view of the absence of
an immediate objection to Plaintiff's advice that he would be relocating, the court is of
the view that Defendant has not sustained her burden of proof on the issue of wrongful
intent, and the petition will be dismissed. With respect to Defendant's petition for
modification, and without suggesting that the case is without difficulty, the court will
award primary physical custody of the children during the summer to Plaintiff father and
primary physical custody of the children during the school year to Defendant mother,
based upon principles recited above regarding relocations and the general principles
related to custody determinations.
In the latter regard, the relocation effected by Plaintiff father, while arguably in his
own best interest, constituted a major household transformation in terms of family
membership, as opposed to a mere geographical change, and thus compromised the ideal
of continuity more than the usual relocation. The effect does not appear to have served
the best interests of the children, and has been responsible for several of the factors noted
above weighing in favor of Defendant's custodial position. Accordingly, the court is of
the view that Plaintiff has not sustained his burden of proof with respect to justification of
the relocation. On the other hand, the benefits of continuity and stability in the children's
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lives, with due regard for Plaintiff's history as their primary caretaker, dictate the
preservation of a substantial custodial relationship between them and Plaintiff.
In accordance with the foregoing analysis, the following order will be entered:
ORDER OF COURT
AND NOW, this W1 day of December, 2018, upon consideration of Defendant's
Petition for Contempt of Custody Order Dated December 19, 2013, and Petition for
Modification of Custody Order, filed June 13, 2018, following a hearing held on
December 4, 2018, and for the reasons stated in the accompanying opinion, with respect
the parties' children, C.G.K. (twelve years old) and A.T.K. (eight years old), it is ordered
and directed as follows:
1. Defendant's petition for contempt is dismissed.
2. Legal custody of the children shall be shared by the parties.
3. With respect to physical custody
a. During the summer, Plaintiff father shall have
primary physical custody of the children for two
consecutive weeks out of three, from Friday at 5:00 p.m.
until Friday at 5:00 p.m., and Defendant mother shall
have partial physical custody of the children for one
week out of three, from Friday at 5:00 p.m. until Friday
at 5:00 p.m.;
b. During the school year, Defendant mother shall
have primary physical custody of the children and
Plaintiff father shall have partial physical custody of the
children on three consecutive weekends out of four,
from Friday after school until 5:00 p.m. on Sunday;
provided, that when the following Monday is a federal
holiday his period of partial physical custody shall
extend until 5:00 p.m. on Monday;
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c. Notwithstanding the foregoing, during Christmas
vacation Defendant mother shall have physical custody
of the children until 3:00 p.m. on Christmas Day and
Plaintiff father shall have physical custody of the
children from 3:00 p.m. on Christmas Day until 5:00
p.m. on the day preceding resumption of school;
d. Responsibility for transportation of the children
with respect to custody exchanges shall be that of the
party receiving custody.
4. The children shall attend school in the school district serving
Defendant mother's residence.
5. Neither party shall be permitted to relocate the residence of the
children in a manner that significantly impairs the ability of another
individual who has custodial rights to the children to exercise custody
unless every such individual consents to the proposed relocation or
the court approves the proposed relocation. Any party proposing to
relocate must comply with 23 Pa. C.S. §5337.
NOTHING IN THIS order is intended to preclude the parties from deviating from
its terms by mutual consent.
Maryann Murphy, Esq.
39 West Main Street
Mechanicsburg, PA 17055
Custody Conciliator
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BY THE COURT
J esley Ole Jr4SJ.
Michelle L. Sommer, Esq.
Sommer & O'Donnell, L.L.C.
36 South Hanover St.
Carlisle, PA 17013
Attorney for Plaintiff
Rachel C. Schreck, Esq.
Zullinger Davis P.C.
74 N. Second St.
Chambersburg, PA 17201
Attorney for Defendant
Katie J. Maxwell, Esq.
54 E. Main St.
Mechanicsburg, PA 17055
Guardian ad Litem
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