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HomeMy WebLinkAbout2019-10490 ROY BURKEPILE,IN THE COURT OF COMMON PLEAS OF MARY BURKEPILE, CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA v. CIVIL ACTION ALEXANDER STONER, NO. 2019-10490 CIVIL TERM Defendant IN CUSTODY ORDER OF COURT th AND NOW, this 10 day of May, 2021, following a custody hearing in which only the Father presented evidence, it is hereby ORDERED and DIRECTED as follows: I. PREAMBLE Kristina McMorris II. BACKGROUND This custody action was initiated by Maternal Grandparents in October 2019 after they had reached a custody agreement with the Father for Maternal Grandparents to have sole legal and primary physical custody of the child, B.V.-K.S. Although her parents never married, at the time of her birth, B.V.-K.S. was living with her parents. The Mother passed away in November 2018 following a brief illness related to home shortly after and attempted to care for the child on his own while caring for his own mother, who had cancer. Father ultimately determined that it was best for B.V.-K.S. to reside with her Maternal Grandparents and therefore, agreed to the custody stipulation that was presented to him by counsel for the Maternal Grandparents. Following the death of his mother and after being dissatisfied with the amount of physical contact the maternal grandparents were permitting between him and B.V.-K.S., Father filed a Petition for Modification in November 2020. The first attempt at conciliation did not result in resolution of the Modification Petition. A Guardian ad litem was appointed in January 2021 to aid the Court and the parties in identifying a custody schedule that was in the best interest of the minor child. Despite the recommendations of the Guardian ad litem and additional attempts to have the parties reach an agreed upon custody schedule at multiple status conferences, it was ultimately determined that a hearing was necessary to achieve a disposition on . Maternal grandparents terminated their relationship with counsel and entered an appearance as pro se litigants a few business days prior to the custody trial. III. FINDINGS 1 A hearing was held on May 3, 2021 and as a result of the evidence presented, the Court finds 2 that it is in the best interest for Father to have primary physical custody and sole legal custody of 1 Prior to the start of the hearing, an in-chambers conference (with masks and social distancing) was held with distancing considerations) and the GAL. The Court addressed the fact that the Plaintiffs had recently had their counsel withdraw so they could proceed pro se. In addition, counsel for Father had also changed to a different also addressed the fact that the Plaintiffs brought the child to the hearing and courthouse despite that there was no planned child interview. Given the Court informed Maternal Grandfather of 23 Pa.C.S.A. §5327(b) by reading it to him and asking what evidence Plaintiffs would be presenting to rebut the custody presumption in favor of the Father. During the entire in-chambers conference, Maternal Grandfather was emotional and insolent. He repeatedly informed everyone that if there would be a decision for the Father to have primary physical custody he did not want anything to do with his granddaughter, her was not seeking to cut off contact with the reconsider his position if more custodial time was awarded to the Father, Maternal Grandfather only became more incensed. , without asking anyone or informing anyone (within chambers), he and the Maternal Grandmother left the courthouse and took the minor child with them. A determination was made that the Grandparents needed a cooling off period and the hearing would be held without them. 2 The Custody (See attached Custody Factors Chart attached hereto as Ex. A): a. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party; this factor favors Father historically. b. The present and past abuse c 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; this factor is not applicable as to the Grandparents and Father. c. The parental duties performed by each party on behalf of the child; this factor is equal between the Grandparents and Father. d. ommunity life; this factor is equal between the Grandparents and Father. e. The availability of extended family; this factor favors the Father historically. f. bling relationships; this factor slightly favors the Father. B.V.-K.S. This finding is supported by the recommendation of the GAL as provided at the custody trial. IV. DISCUSSION In order for this change in custody schedule to occur gradually and allow time for the minor child to process the change, it is directed that the parties follow a step up schedule. This would involve following the current custody schedule where Father has the minor child three out of four weekends a month and Maternal Grandparents have the child during the school week and one weekend out of the month, for the remainder of the 2020/2021 academic school year. The parties g. The well-reasoned preference of the child, based on the ch factor is not applicable -. h. 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; this factor favors Father historically. i. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the onal needs; this factor favors Father historically. j. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child; this factor slightly favors Father historically. k. The proximity of the residences of the parties; this factor not applicable. l. d-care arrangements; this factor is equal between the Grandparents and Father. m. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one inability to cooperate with that party; this factor favors Father historically. n. The history of drug or alcohol abuse of a party or member of factor favors Father historically. o. The mental and physical condition of a party or member factor favors Father. p. Any other relevant factor for this particular case would be the fact that the Grandparents were provided ample opportunities by this Court, both when they were represented and then again, at the custody trial/pretrial conference when they appeared pro se to have them involved in the process of identifying a plan for B.V.-K.S. This plan would help her transition into her Fand would address her needs, what would be best for her and give her enough time to be comfortable with the process. According to the Grandfather, they were completely unwilling to do that so he put an end to the conversation, ended the pre-trial conference and walked out of the courthouse without any idea of what the Court was going to Order when he did that. It speaks volumes that Father is still willing to consider B.V.-K.S. having a relationship and visitation with her Grandparents, and it truly demonstrates that the Father understands what it means to be putting the interest first and before his own. In addition, the best interest factor analysis was performed as if the parties were both parents and they are not. Even then the best interest analysis fell in favor of the Father, and that is before applying the Section 5327 presumption in cases concerning primary physical custody. Where custody is sought between a parent and a third party, such as a grandparent, there is a presumption in favor of the parent. 23 Pa.C.S.A. §5327(b). The presumption that the parent shall have custody may only be rebutted by clear and convincing evidence. Id. The Grandparents chose to place no evidence on the record or try to rebut the parental presumption. This further emphasizes that the best interest custodial factors weigh in favor of the Father. will then transition to a 50/50 custody schedule for Summer 2021 and the Father will receive primary physical custody and sole legal custody beginning at the start of the 2021/2022 academic school year. A virtual status conference via Zoom: (https://ccpameet.zoom.us/my/judgehyams) is hereby scheduled for Monday, May 17, 2021 at 11:00 a.m. The sole purpose of the status conference is for both parties to bring a suggested transition schedule identifying how to best transition the minor child from her current schedule to a 50/50 Summer 2021 schedule and eventually a physical custody schedule for the 2021/2022 academic school year where she will be in the primary physical custody of her Father. Should any party not participate or sign on at the required start time, input will be received from any participating parties and the GAL, and ultimately a decision made without the input of any non-participating party. Clearly the minor child benefits from involvement of both Father and her Maternal Grandparents in her life.It is not an all or nothing scenario as suggested by Maternal Grandfather before he exited the pretrial conference.The parties are asked to place themselves into the shoes of the child who has already lost her mother at a very young age and not eliminate the close family relationships with maternal relatives that remain. Emily Griffin BY THE COURT: Carrie E. Hyams, Judge Roy Burkepile Mary Burkepile 17 Apache Drive Shippensburg, PA 17257 1nene.mb@gmail.com Pro Se Plaintiffs Michael Agebuniwe, Esquire 2 West High Street Carlisle, PA 17013 mna@abomkutalakis.com For the Defendant Katie Maxwell, Esquire katie@waltersgalloway.com GAL