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HomeMy WebLinkAbout1999-6135 Civil FRANCES L. BEERS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 99-6135 CIVIL CRAIG J. HIMMEL, : Defendant : MEMORANDUM AND ORDER BEFORE HESS, J. The parties in this case separated in 1998. In accordance with a York County custody order, the children, Craig, born January 3, 1991, and Colton, born October 7, 1993, lived one week on and one week off with each parent. In 1999, Cumberland County accepted jurisdiction of the custody case and entered an order maintaining the fifty-fifty custody arrangement. Dr. Stanley Schneider issued a report on July 31, 2000, recommending that the father have primary custody during the school week. Notwithstanding that report, the court ordered that the shared custody arrangement remain in place. Custody was revisited in 2002 and 2003 and shared custody was again maintained. In 2005, the mother filed a petition to modify custody and sought primary physical custody. Her petition was denied in August 2005 and the parties continued a week on, week off custody schedule. In April of 2006, the mother filed a nearly identical motion to again revisit the order. The court acknowledges that considerable time has elapsed since our most recent hearing in the matter. This was based, in part, on our thought that the custody arrangement ought not to be changed in the middle of the school year. The school year, however, has ended. NO. 99-6135 CIVIL Both boys have expressed a desire to be placed in the primary physical custody of their mother. The plaintiff cites McMillen v. McMillen, 602 A.2d 845 (Pa. 1992) for the proposition that the preference of the children should be given weight. We do not disagree with this legal proposition. We do not, however, believe that McMillen is controlling in this matter. Instead, we agree with the analysis of this matter as set forth in the brief filed on behalf of the defendant. Despite the fact that the boys prefer their mother’s home in Perry County and are particularly fond of their stepfather, we do not believe that it is in their best interest to change a shared custody arrangement which has been in place for the better part of a decade. Currently, both parents are actively involved in the boys’ lives and educational development. The fact that the children have thrived is indicative of a successful shared custody arrangement. We are greatly concerned that the grant of the mother’s request for primary custody will serve to diminish the father’s involvement in his sons’ lives and his relationship with them will suffer. The defendant is an excellent father to the boys and his abilities to parent are, at the least, equal to the abilities of the plaintiff. McMillen can be read to stand for the proposition that where parents’ households are must equally suitable, the preference of the child necessarily tip the scale in favor of one party or the other. The case, however, is not that simple. In McMillen, while the households were described as “equally acceptable,” the child’s preference to live with his father was based on the fact that his stepfather upset and threatened him and that his mother did nothing to prevent this mistreatment. Here we are not suggesting that the preference of the boys is not sincere nor that they are not mature young men. Honoring their preference, however, will alter their long-standing 2 NO. 99-6135 CIVIL relationship with a conscientious father. There are, in short, too many unknowns in making a major change to what is an otherwise quite workable status quo. ORDER AND NOW, this 1st day of June, 2007, the petition of the plaintiff for modification of custody is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Max J. Smith, Jr., Esquire For the Plaintiff Jessica Holst, Esquire For the Defendant :rlm 3 FRANCES L. BEERS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 99-6135 CIVIL CRAIG J. HIMMEL, : Defendant : ORDER AND NOW, this 1st day of June, 2007, the petition of the plaintiff for modification of custody is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Max J. Smith, Jr., Esquire For the Plaintiff Jessica Holst, Esquire For the Defendant :rlm