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HomeMy WebLinkAbout2007-1062 Civil LIA A. FITZGERALD, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MATTHEW C. FITZGERALD, : DEFENDANT : 07-1062 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., September 21, 2007:-- Lia A. Fitzgerald, age 32, and Matthew C. Fitzgerald, age 39, were married on October 21, 1995. They are the parents of Sierra C. Fitzgerald, age 10, born October 13, 1996, and Talia C. Fitzgerald, age 8, born February 22, 1999. The father works in financial markets for Merrill Lynch, where he grosses between $300,000 and $500,000 a year. The mother is a homemaker who has not worked outside of the home since she was married. These parties first came to us in March, 2007, on a petition by the mother for emergency custodial relief. Following a hearing, a temporary order was entered on March 26, 2007, granting the mother primary physical custody of Sierra and Talia. The order further provided: (3) Pending a psychiatric/psychological examination of Sierra and Talia, and a further order of court upon litigation or by agreement of the parties, Matthew C. Fitzgerald shall have non-overnight temporary periods of visitation of the children as agreed to by the mother, said periods being subject to the child safety plan that he agreed to with Cumberland County Children and Youth Services. 07-1062 CIVIL TERM On the same date, an order was entered granting the mother exclusive possession of a substantial marital residence in Mechanicsburg. Also, a protection from abuse order was entered in favor of the mother against the father. The father then took up residence in a two-bedroom townhouse in Mechanicsburg. Since then, he has had periods of visitation agreed to by the mother as follows: each Sunday from 1:00 p.m. to 6:00 p.m., each Monday from 5:00 p.m. to 7:45 p.m., and each Thursday from 5:00 p.m. to 7:45 p.m. When he has missed some of those visits, the mother has allowed him to change the days or the times. The father now has a girlfriend who he introduced to his daughters on Labor Day weekend. The mother and the father are from the area of Buffalo, New York. Her parents, grandmother, and sister with children ages nine and three, all live there. A brother of the father lives there. The parents and children have often visited in Buffalo. The mother wants to return to live there with Sierra and Talia. The father objects to the mother moving the children there. We conducted hearings on August 29 and September 6, 2007. If she is allowed to move the children to Buffalo, it is the mother’s intent to live temporarily in her parents’ home where she believes she will be able to enroll the children in the Orchard Park School District, even though it is not the school district in which her parents live. Otherwise, she will temporarily live in an apartment that is -2- 07-1062 CIVIL TERM 1 owned by her parents that is in the Orchard Park School District. The Orchard Park School District is similar to the Cumberland Valley School District where the children are now attending. For the 2007-2008 school year, Sierra will be in the sixth grade and Talia in third grade. They are both good students. The mother will provide transportation for Sierra and Talia to and from school. When the mother is able to obtain a permanent residence in the Orchard Park School District, she will move. She has forty-six college credits that she earned before she was married. She intends to take additional courses toward a degree in speech therapy which she can do if she is living in the Buffalo area. Buffalo is between a five and six hour drive from Cumberland County. There are direct airline flights to and from Baltimore, Maryland, which is about one hour and a half drive from Mechanicsburg. th After the entry of the order of special relief on March 26, the father underwent psychological testing. On July 11, 2007, he began working with Alternate Behavior Consultants to improve his parenting skills. As of the last hearing, there have been seven of ten two hour sessions with Lee Marriott, two with him alone and four with him together with Sierra and Talia. Marriott was assigned to the father by Cumberland County Children and Youth. Her goal is to promote a positive parenting strategy for the father. Her time with him when the children have been present has occurred at his townhouse and other public locations. She testified that it usually takes about fifteen to __________ 1 The mother will not send Sierra and Talia to school in the district where her parents live. -3- 07-1062 CIVIL TERM twenty minutes for the children to transition with the father to the point where they start enjoying themselves. Marriott recommended that the children have a therapist who will be a neutral person with whom they can discuss their feelings and deal with their stress. She believes that the parents should speak more directly about their children and the children should know that the parents are doing that. She believes that the father must work on his understanding of the feelings of his children and communicate better with them and that he should be able to improve his relationship with them. Arnold Shienvold, Ph.D., is a psychologist who conducted a custody evaluation. He was provided a psychiatric evaluation of Sierra in which she was diagnosed with post-traumatic stress disorder, chronic, with the stress being severe, a general anxiety disorder, and depression from emotional abuse. A family physician has diagnosed Sierra with a hyperactive anxiety disorder. Dr. Shienvold found the father to be self-centered, hard-driving and ambitious. He is a workaholic. He can be inflexible and insensitive. He loves his children but struggles in his effort to nurture them because his thinking and personality interferes with his efforts at parenting. He does not address the feelings of the children well and can be harsh with them. This has made the children less than comfortable and resulted in a strained relationship with him. Overall, they are frightened and hesitant with him. Dr. Shienvold believes that the father wants to improve his relationship with Sierra and Talia. At this point, he does not recommend overnight visitation although he believes that with intervention the father’s relationship with them will improve and that his time -4- 07-1062 CIVIL TERM with them, to include overnights, can be significantly increased. Dr. Shienvold does not believe that the mother is trying to alienate the children from their father, but he notes that she does have a concern for their welfare that has affected her willingness as to the amount of time she now allows the father to be with them under the current order of special relief. Dr. Shienvold found Sierra to be articulate, verbal and bright, but she is depressed and in need of therapy. He believes that Talia should participate in therapy too. Dr. Shienvold found the mother to be very sensitive, caring and gentle with Sierra and Talia. She has good parenting skills and provides them with stability. Overall, the mother is a passive, dependent person who suffers with her self-esteem having been the subject of a controlling husband who she is fearful of. She is being treated by a physician for depression. Dr. Shienvold felt that there would be benefits psychologically for the mother distancing herself from the father and likewise psychological benefits for Sierra and Talia. Most of all, Dr. Shienvold believes that the children need stability. He testified that the father needs to improve his relationship with them because if the mother is allowed to move them to Buffalo there should be adequate periods of temporary physical custody for him. The father testified that he opposes moving Sierra and Talia to Buffalo because he does not want them to be removed from his daily life. He believes that the mother has alienated the girls against him and, if she is allowed to move them to Buffalo, that alienation will be exacerbated and it will significantly hinder his future relationship with -5- 07-1062 CIVIL TERM -6- 07-1062 CIVIL TERM 2 them. He knows that Sierra and Talia blame him for the breakup of his marriage. He testified that since he started working with Lee Marriott things are going much better. He acknowledges that Sierra and Talia do not always respect his authority and he is working on improving that. He testified that the quality of life for Sierra and Talia, for which he gave examples, would not be nearly as good in Buffalo as it is here. If they are allowed to move there, he seeks extensive periods of temporary physical custody as he believes he has an appropriate relationship with his daughters that should be fostered. 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 have children live out of Pennsylvania, an analysis must be made of the Gruber v. Gruber, factors set forth in 400 Pa. Super. 174 (1990), which are: 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. __________ 2 The father testified that if the children move he will have to consider moving himself even though it will result in a significant decrease in his earnings. The father has a son by another woman, Alex, age 12, who lives in Buffalo. He has not seen Alex for over a year. He testified that their relationship has been greatly inhibited by Alex’s mother. -7- 07-1062 CIVIL TERM Beers v. Beers, In 710 A.2d 1206 (Pa. Super. 1998), the Superior Court of Gruber Pennsylvania 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 Gruber interests of the child lie." As to the first factor, the Superior Court stated in Anderson v. McVay, 743 A.2d 472 (Pa. Super. 1999): A court need not consider only economic benefits when determining whether relocation substantially improves the quality of life of the parent. . . . Rather, “when the move will significantly improve the general quality of life for the custodial parent, indirect benefits flow to the children with whom they reside.” This is because “the best interests of the child are more closely aligned with the interests and quality of life of the custodial parent.” . . . [T]here is no need . . . to show an independent benefit, apart from that of [the moving party], flowing to the children Zalenko v. White, because of the relocation. See 701 A.2d 227, 229 (Pa. Super. 1997). (Other citations omitted.) Ferdinand v. Ferdinand, supra, In the Superior Court reversed an order of the trial court denying a mother’s petition to relocate where non-economic improvements in the See mother’s quality of life and happiness would inure to the benefit of the children. also, Burkholder v. Burkholder, 790 A.2d 1053 (Pa. Super. 2002). There are many advantages to the mother moving with Sierra and Talia to the Buffalo area, not the least of which will be the improvement in her happiness in distancing herself from the father. The mother’s supportive family members are all located in the Buffalo area and will assist her in many ways, including childcare, in making the adjustment. Sierra and Talia are close to these members of the family. The temporary living arrangements the mother has planned are adequate. The mother’s -8- 07-1062 CIVIL TERM goal of completing her education to obtain a degree in speech therapy will improve her self-esteem and should allow her to obtain meaningful employment. We are satisfied, based on all of the evidence regarding the tumultuous relationship between these parents, that a relocation will substantially improve the quality of the life of the mother from which both direct and indirect benefits will flow to Sierra and Talia. The mother’s proposed move is not a momentary whim. To the contrary, it has been driven by the conduct of the father both in his relationship with her and in his relationship with Sierra and Talia. The integrity of the mother’s motives are sound. Not unexpectedly, the father, having had his marriage disintegrate and his relationship with his children suffer, does not want to have Sierra and Talia move away. He is capable of adequately meeting their financial needs if they stay here. Given the current situation, he is rightly concerned that a move to the Buffalo area will hinder an improvement of his relationship with Sierra and Talia that is necessary for him to have meaningful periods of temporary physical custody as they become older. Ironically however, this concern is the product, in large part, of his conduct. The father has emotionally abused Sierra and Talia. Although at times he has been harsh with them, we do not believe that his conduct reached the level of physical abuse. While there is still much improvement as a parent to be made on his part, we believe that the level of the stress of Sierra and Talia has decreased from when the order of special relief was entered on March 26, 2007. This is clearly evidenced by the testimony of Lee Marriott who has been with Sierra and Talia and their father in several settings where the -9- 07-1062 CIVIL TERM children were outside of the influence of others. Notwithstanding the past, and the need for further improvement so that the children are completely comfortable with the father, there is hope for the future. This creates a dilemma because, while we believe it is in the best interest of the mother and the children to move to the Buffalo area, we are concerned that if that move takes place now there is less likelihood that a meaningful, ongoing relationship with their father can be sustained in the future. Being satisfied that Sierra and Talia are no longer at risk in the father’s company, we will enter an order we believe can result in a significant improvement in his relationship with them that will bode well for a meaningful relationship to continue after we allow the mother to move them to the Buffalo area. ORDER OF COURT IT IS ORDERED: AND NOW, this day of September, 2007, (1) All prior custody orders are vacated and replaced with this order. (2) Lia A. Fitzgerald and Matthew C. Fitzgerald shall have shared legal custody of Sierra C. Fitzgerald, born October 13, 1996, and Talia C. Fitzgerald, born February 22, 1999. (3) The mother shall have primary physical custody of Sierra and Talia. (4) The current schedule of the father’s periods of temporary physical custody with Sierra and Talia shall continue, which is each Sunday from 1:00 p.m. to 6:00 p.m., each Monday from 5:00 p.m. to 7:45 p.m. and each Thursday from 5:00 p.m. to 7:45 p.m., except starting on the weekend of September 29, 2007, the father shall have -10- 07-1062 CIVIL TERM Sierra and Talia from noon on Saturday until 6:00 p.m. on Sunday. On the following weekend he shall have them from Sunday at 9:00 a.m. until 6:00 p.m. This alternate weekend schedule shall then continue along with the periods each Monday and Thursday. (5) At Thanksgiving the father’s alternate weekend shall start at 9:00 a.m., Friday, November 23 through 6:00 p.m., Sunday, November 25. (6) At Christmas, the mother shall have the children on December 24 through 2:00 p.m. on Christmas Day. The father shall have them from 2:00 p.m. on Christmas Day until 6:00 p.m. on December 27. (7) The mother may move Sierra and Talia to the Buffalo, New York area any th time starting on December 28. (8) For any period thereafter that the mother does not move, the father’s periods of temporary physical custody shall change from that set forth in Paragraph 4, to every other weekend from after school on Friday until 6:00 p.m. on Sunday, and before the weekend he does not have them, on that Thursday from 5:00 p.m. to 7:45 p.m. The mother shall have the children for the full alternate weekend. (9) If the mother moves to the Buffalo, New York area the father shall have the children for periods of temporary physical custody as follows: (a) During each Easter/Spring school break, from the first full day off school to the last full day off school. (b) During each summer school break, for two continuous fourteen day -11- 07-1062 CIVIL TERM periods in June, in July, and in August, to end at least one full week before the start of school. The July two week period shall be separated by at least two weeks from the June two week period, and the August two week period shall be separated by at least two weeks from the July two week period. (c) During each Christmas school break, from December 27 through January 1. (10) The father shall notify the mother in writing not later than May 15 each year of the dates for each of the three two week periods in the summer that he will be exercising. (11) The father shall determine the method of transportation for all periods of his temporary physical custody with the children. That may include unaccompanied airline flights from Buffalo to Baltimore and back. Until the children are of the age when they can fly unaccompanied without supervision, any unaccompanied flights shall include supervision provided by the airline for unaccompanied children. The father shall pay for all transportation. (12) If the father visits in the Buffalo area at any time during the school year, upon one week prior notice, he shall have the children from after school on Friday until Sunday evening at 6:00 p.m. (13) If the father visits in the Buffalo area during any summer school break, upon one week prior notice, he shall have the children for any two full days out of each week. -12- 07-1062 CIVIL TERM (14) The father shall have such other periods of temporary physical custody with the children as agreed by the mother. (15) Each parent that has the children shall allow a reasonable amount of phone contact between the children and the other parent. By the Court, Edgar B. Bayley, J. Barbara Sumple-Sullivan, Esquire For Plaintiff Steven Howell, Esquire For Defendant :sal -13- LIA A. FITZGERALD, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MATTHEW C. FITZGERALD, : DEFENDANT : 07-1062 CIVIL TERM IN RE: CUSTODY ORDER OF COURT IT IS ORDERED: AND NOW, this day of September, 2007, (1) All prior custody orders are vacated and replaced with this order. (2) Lia A. Fitzgerald and Matthew C. Fitzgerald shall have shared legal custody of Sierra C. Fitzgerald, born October 13, 1996, and Talia C. Fitzgerald, born February 22, 1999. (3) The mother shall have primary physical custody of Sierra and Talia. (4) The current schedule of the father’s periods of temporary physical custody with Sierra and Talia shall continue, which is each Sunday from 1:00 p.m. to 6:00 p.m., each Monday from 5:00 p.m. to 7:45 p.m. and each Thursday from 5:00 p.m. to 7:45 p.m., except starting on the weekend of September 29, 2007, the father shall have Sierra and Talia from noon on Saturday until 6:00 p.m. on Sunday. On the following weekend he shall have them from Sunday at 9:00 a.m. until 6:00 p.m. This alternate weekend schedule shall then continue along with the periods each Monday and Thursday. (5) At Thanksgiving the father’s alternate weekend shall start at 9:00 a.m., 07-1062 CIVIL TERM Friday, November 23 through 6:00 p.m., Sunday, November 25. (6) At Christmas, the mother shall have the children on December 24 through 2:00 p.m. on Christmas Day. The father shall have them from 2:00 p.m. on Christmas Day until 6:00 p.m. on December 27. (7) The mother may move Sierra and Talia to the Buffalo, New York area any th time starting on December 28. (8) For any period thereafter that the mother does not move, the father’s periods of temporary physical custody shall change from that set forth in Paragraph 4, to every other weekend from after school on Friday until 6:00 p.m. on Sunday, and before the weekend he does not have them, on that Thursday from 5:00 p.m. to 7:45 p.m. The mother shall have the children for the full alternate weekend. (9) If the mother moves to the Buffalo, New York area the father shall have the children for periods of temporary physical custody as follows: (a) During each Easter/Spring school break, from the first full day off school to the last full day off school. (b) During each summer school break, for two continuous fourteen day periods in June, in July, and in August, to end at least one full week before the start of school. The July two week period shall be separated by at least two weeks from the June two week period, and the August two week period shall be separated by at least two weeks from the July two week period. (c) During each Christmas school break, from December 27 through -2- 07-1062 CIVIL TERM January 1. (10) The father shall notify the mother in writing not later than May 15 each year of the dates for each of the three two week periods in the summer that he will be exercising. (11) The father shall determine the method of transportation for all periods of his temporary physical custody with the children. That may include unaccompanied airline flights from Buffalo to Baltimore and back. Until the children are of the age when they can fly unaccompanied without supervision, any unaccompanied flights shall include supervision provided by the airline for unaccompanied children. The father shall pay for all transportation. (12) If the father visits in the Buffalo area at any time during the school year, upon one week prior notice, he shall have the children from after school on Friday until Sunday evening at 6:00 p.m. (13) If the father visits in the Buffalo area during any summer school break, upon one week prior notice, he shall have the children for any two full days out of each week. (14) The father shall have such other periods of temporary physical custody with the children as agreed by the mother. (15) Each parent that has the children shall allow a reasonable amount of phone contact between the children and the other parent. -3- 07-1062 CIVIL TERM By the Court, Edgar B. Bayley, J. Barbara Sumple-Sullivan, Esquire For Plaintiff Steven Howell, Esquire For Defendant :sal -4-