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HomeMy WebLinkAbout2003-3174 Civil NANCY E. SERSCH, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JOHN N. SERSCH, : DEFENDANT : 03-3174 CIVIL TERM IN RE: CUSTODY OPINION IN SUPPORT OF ORDER OF AUGUST 2, 2007 Bayley, J., August 8, 2007:-- John N. Sersch, age 35, and Nancy Sersch, age 41, are the parents of Jenna N. Sersch, age 7, born November 22, 1999. The father filed a petition to modify a custody order by granting him primary physical custody of Jenna and allowing him to move her to Arizona. The mother is opposed. A hearing was conducted on August 1, 2007. Because a new school year will be starting this month, we resolved the dispute by entering an order on August 2 denying the father relief. This opinion is filed in support of that order. The parents were married in February, 2000, and divorced on December 29, 2003. They were living in Cumberland County when the father separated and moved to Harrisburg in June, 2001. He moved to Arizona in early 2002, where he worked in a signage business operated by his brother. They had a falling out and he moved to another signage company where he met Rhonda whom he married in 2005. They now live in a four bedroom home in Peoria, Arizona, which is about a 45 minute drive northwest of Phoenix. He and Rhonda started Designs, Inc. in 2003. She runs the office, and he handles sales for the company which has seventeen employees and manufactures and installs commercial signage. The father was in the signage business in Pennsylvania before he moved to Arizona. He testified that after September 11, 2001, business was slow at the company he worked for and that he 03-3174 CIVIL TERM 1 moved to Arizona to take advantage of a better business climate. The mother lived in Camp Hill with Jenna until she moved into the three bedroom home in Enola of her boyfriend, Mark Shot, age 46, in May, 2007. He is an operation supervisor for Ames True Temper where he has worked since 1989. He is divorced and has two children, 2 Natalie, age 13, and Adam, age 11. He has almost equal shared custody with their mother. The mother was previously married and divorced. She has a son, age 22, who lives in Philadelphia and a son, age 20, who lives in central Pennsylvania. She has worked for Highmark, formally Pennsylvania Blue Shield, since February, 1996. In the latter part of 2006, Highmark announced that the division the mother was working in was closing and that its employees would be laid off although they could apply for a job in one of the company’s out- of-state facilities. The mother, however, applied for another position in the Camp Hill facility 3 and was accepted in the Membership Administration Division. She now works 7:00 a.m. to 3:00 p.m. weekdays. She can report for work as late as 9:00 a.m. and then add the additional time to the end of her workday. Jenna attended kindergarten and first grade in the Camp Hill School District. If she lives with the mother, she will attend second grade in the East Pennsboro Township School __________ 1 The mother considered reconciling and moving with the father to Arizona. She went there twice to look for work. There was no reconciliation. 2 The Enola home has a finished basement where one child will sleep so that if Jenna lives with her mother she will have her own bedroom. 3 The father testified that during the period in which there was the possibility of work disruption the mother asked him to take Jenna to Arizona. He did not because he wanted her to finish the school year. The mother denies she suggested this to the -2- 03-3174 CIVIL TERM District. The mother will take her to daycare at the school between 7:00 to 7:15 each morning and then pick her up at the end of the school day. The father generally works from 8:00 a.m. until 4:30 p.m. but has flexibility since he is the owner of his business. If Jenna lives with him, she will attend school in Peoria from 8:00 a.m. to 3:00 p.m. The father and his wife do not plan to use daycare. When the father moved to Arizona in 2002, he did not return to Pennsylvania for a year and three months. He and the mother had an informal arrangement whereby he had Jenna for two weeks in each of the summers of 2004 and 2005. Jenna attended his wedding in Arizona. When the father now visits his family in Pennsylvania, he sees Jenna. In April, 2007, he twice went to her school in Camp Hill. The custody order was entered on May 18, 2006, which both parties testified has been working well. The father had Jenna in Arizona for most of the summer in 2006 and 2007. This summer she was in a summer camp on weekdays although the father took some time off to do different things with her. The order also provides the father with temporary periods of physical custody during certain holiday periods and provides for a sharing of travel costs and coordination of travel arrangements. In November, 2006, Jenna was diagnosed by a local medical specialist with Attention Deficit Disorder and was placed on medication. She had difficulty with focus especially in the morning and in school where she was in the first grade. She had a considerable number of tardies in the first and second quarter but none in the third and fourth quarter after her condition was treated. The mother maintained contact with her teachers every six to eight father. -3- 03-3174 CIVIL TERM weeks. Jenna did adequately and will be in second grade this year. When she went to Arizona this summer, a medical specialist there took her off the medication for the summer. She will have a medical reevaluation no matter where she is living as to whether she should go back on the medication for the upcoming school year. Jenna is a nice, loving and caring little girl who is close to her mother and her father. She gets along with the father’s wife and the mother’s boyfriend and his two children. She has had considerable contact with the mother’s two sons and the mother’s sister and her children, all of whom live in this area. She has had considerable contact with members of the father’s extensive family that live in this area. The father testified that he does not believe the mother applies herself adequately to Jenna and that he can provide a more structured environment which he feels she needs. While the mother acknowledges that she used babysitters more often than she should have, those difficulties ended when she moved into the home of Mark 4 Shot this May. The mother maintains that she has always been the primary caretaker of Jenna, that Jenna has done well under her care, and that Jenna should not be removed from her primary physical custody. The ultimate determination in a custody case is what is in the best interest of the Ferdinand v. Ferdinand, children. 763 A.2d 820 (Pa. Super. 2000). When a parent seeks to move a child out of Pennsylvania, an analysis must be made of the factors set Gruber v. Gruber, forth in 400 Pa. Super. 174 (1990), which are: __________ 4 Much of that babysitting was provided by the father’s sister who the mother -4- 03-3174 CIVIL TERM 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. Beers v. Beers, In 710 A.2d 1206 (Pa. Super. 1998), the Superior Court of Pennsylvania Gruber stated that it has consistently held that "refines upon, but does not alter the basic and determinative inquiry as to the direction in which the best interests of the child lie." This case is somewhat unique because the father moved to Arizona over five years ago. It suited him to further pursue his career there to the extent he did not even return to Pennsylvania for the first year and a quarter. While it appears that he has done well, it is problematic as to whether he could have done as well in Pennsylvania. Now that he has established a stable home and work environment, he seeks to have Jenna live with him. While his motive to change custody may be genuine, the mother’s motive in seeking to prevent Jenna’s move to Arizona is also genuine. Jenna has done well with the mother who is on top of the ADD situation. The custody agreement has worked well. Jenna is now spending a significant amount of time with the father in Arizona, which she will continue to do if she lives with her mother. None of the issues raised by the father are significant enough to now remove Jenna from her primary physical custodian. We find that it is in the best interest of Jenna to live with her mother. Accordingly, the order of August 2, 2007, was entered denying the maintained a good relationship with. -5- 03-3174 CIVIL TERM petition of the father to modify the custody order of May 18, 2006, by granting him primary physical custody of Jenna and moving her to Peoria, Arizona. (Date) Edgar B. Bayley, J. Stanley J.A. Laskowski, Esquire For Plaintiff Barbara Sumple-Sullivan, Esquire For Defendant :sal -6-