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HomeMy WebLinkAbout2019-11984 J.A.W., IN THE COURT OF COMMON PLEAS OF PlaintiffCUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION K.W., NO. 2019-11984 CIVIL TERM Defendant IN CUSTODY HYAMS, J., JULY 28, 2021 I.PREAMBLE “You canonly lose what you cling to.” -Buddha II. BACKGROUND The parties in this custody matter are the parents of two children, C.J.R.W. (7 years old) and N.G.W. (almost 4 years old). Father filed a custody complaint in December 2019. There were multiple conciliations held with interim agreements to a custody schedule, however, there was Protection From Abuse litigation, as well as an incident in February 2020 involving the Father and alcohol, that ultimately caused Mother to demand a custody trial. The undersigned held several status/mediation style conferences with just counsel and, at times, both counsel and the parties. The conferences were focused on identifying solutions to Mother’s concerns 1 regarding the Father’s use of alcohol, minor co-parenting issues related to services and activities for the children, and, to a lesser degree, the Mother’s concerns regarding Father’s anger 2 management. As discussed with the parties during these conferences, altering the physical custody schedule to include minimizing Father’s custodial time would not eliminate the Mother’s aforementioned concerns. Sadly, this case followed the path of all too many custody actions where, after the parent who was seeking additional or equal 50/50 custodial time had completed 1 Mother never credibly established at trial that the Father had a substance abuse problem. Father obtained a drug and alcohol evaluation in 2020 after he submitted to 243 Soberlink tests over an approximate 120 day period from April 2020-August 2020. All Soberlink tests were negative and the Father’s drug and alcohol evaluation recommended no treatment. 2 Mother did not credibly establish at trial that the Father had anger management problems or that his conduct constituted domestic violence. various steps as identified by the Court with input by the other parent, the rug was pulled out from under him in the form of a demand for trial. A hearing was held over a period of two days (May 4, 2021 and June 30, 2021). Mother’s inability to move forward and acknowledge Father’s growth as well as his present day status, lends itself to the old adage of “Be careful what you wish for, lest it come true!” Aesop. (circa 260 BC). The parties married in August of 2015 and separated in December of 2018. At the time of the hearing, the parties were following an interim physical custody schedule that had been in place since March of 2020. Father has both children on Week 1 and Week 3 from Wednesday after school until Sunday morning. On Week 2, Father has C.W. Tuesday after school through Thursday morning and N.W. Wednesday after school to Thursday morning. On Week 4 Father would have N.W. from Tuesday after school to Thursday morning and C.W. from Wednesday after school until Thursday morning. The purpose of the Week 2 and Week 4 schedule is to allow each parent one on one time with each child. Father seeks a shared custody schedule and Mother seeks primary physical custody and a schedule in which the Father would have custody every other weekend. Mother’s proposed custody schedule would drastically minimize the custodial time the Father has had with the children since March of 2020 based upon her version of events that occurred in February 2020 and earlier. It is this unfounded position that calls Mother’s credibility into question and after a two day evidentiary hearing as discussed in more detail below, this Court finds that the custodial best interest factors weigh in favor of the Father. III. FINDINGS The testimony of each party demonstrated that both parents have appropriate housing, appropriate daycare arrangements, and can adequately provide for the needs of the children. They are both involved with the children’s activities, education, medical services, and clearly love their children very much. Mother attempted to paint a picture of Father as a domestically violent person with a substance abuse problem. The evidence instead demonstrated that Mother appears fixated on a snapshot of time when most people are at their lowest point in life (time of separation and approximately a year post separation) and magnified certain events to the point of inanity. This was solidified not only through the Mother’s testimony and documentary evidence, but also by the witnesses she presented. While the daycare worker was not capable of discerning any appreciable difference with the children on the days they came to daycare from Father’s home versus Mother’s home, Mother still presented this testimony. It was evident that the daycare worker was prepared in such a way that she attempted to provide favorable testimony for the Mother and unfavorable testimony regarding Father. This strategy was not successful as it was clear that the daycare worker witness did not necessarily know the custody schedule on any give date or where the children had been the night prior to the dates she had concerns. Mother’s close friend’s testimony was not given considerable weight as she was understandably biased in favor of Mother and had no recent observations about Father’s parenting or conduct. Even more curious, Mother presented testimony from Barry Goldstein, who she identified as an expert in domestic violence. The report she submitted from Mr. Goldstein, which ultimately was admitted into the record, was riddled with opinions based on “facts” never established at trial. In his report, Mr. Goldstein labeled Father as “harmful” and “abusive” within the first five sentences of his analysis section (“Applying Scientific Research to the Facts and Circumstances”). See Mother’s Exhibit K. Yet, Mr. Goldstein never spoke to anyone involved in this case other than the Mother and the Mother’s attorney. He did not speak to the Father, the children, or the oldest child’s play therapist. It is unclear exactly how Mr. Goldstein obtained the background of this case as the report omits any section or mention regarding what records and information/interviews were acquired in order to prepare his report. Some of the supposed facts that Mr. Goldstein referenced in his report were never established at trial: “repeatedly undermined \[mo\]ther’s relationship including negative comments;”, “…repeatedly pressured the mother for unwanted sex.”, “…father has a serious alcohol problem.”, “…father believes she had no right to leave.” See Mother’s Exhibit K. These unproven factual statements led Mr. Goldstein to opine that the Father was harmful and abusive to the subject minor children. He further commented that “…the father’s behavior is so dangerous and harmful to the children that from my vantage point, the only reason the court is considering allowing the father to continue to harm the children is the tendency of courts to bend over backwards to keep even abusive fathers in children’s lives…” See Mother’s Exhibit K. What Mr. Goldstein fails to recognize is that there are no factual allegations, let alone evidence, that the Father had harmed the children or would continue to do so. The one-sided set of facts that presumably Mr. Goldstein received from the Mother was not credibly established at trial and in some instances, not established at all. It was damaging to Mother that she chose to present this witness in the first place; additionally it was her final witness who was presented on the last day of the trial. Father’s counsel timely raised qualification and competency issues well before the June 30, 2021 hearing date. Yet, Mr. Goldstein was confirmed by Mother as her final witness. Following extensive voir dire, the Court ultimately qualified him as an expert in the field of domestic violence and 3 permitted his testimony, but acknowledged concerns related to his credibility.In addition to the fact that Mr. Goldstein did not bother to obtain all of the facts the Court deemed relevant in order to render his opinions, it was revealed during voir dire that Mr. Goldstein’s New York law license was suspended effective January 30, 2009 for a period of five years, subject to his application for reinstatement. Mr. Goldstein never sought to have his law license reinstated. While the law license suspension is not to be ignored, more concerning was the drastic difference between Mr. Goldstein’s rendition of why his license was suspended in the first place (judicial retaliation for his purported advocacy for domestic violence victim/s) and the court opinion in 3 It is well established in this Commonwealth that the standard for qualification of an expert witness is a liberal one. The test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to Kuisis v. Baldwin–Lima–Hamilton Corp., 319 A.2d 914, 924 (Pa. determine. Commonwealth v. Gonzalez, 546 A.2d 26, 31 (Pa. 1988); 1974); Moodie v. Westinghouse Electric Corp., 80 A.2d 734, 738 (Pa. 1951). It is also well established that a witness may be qualified to render an expert opinion based on training and experience. Rutter v Northeastern Beaver County School District, 437 A.2d 1198, 1202 (Pa. 1981) (plurality opinion). the license suspension (seventeen charges sustained in their entirety in which eight of those charges related to his improper mingling of client funds into his master escrow account or into a 4 client subaccount and only six related to conduct involving dishonesty, fraud, deceit, misrepresentation or conduct prejudicial to the administration of justice). Notwithstanding the law license suspension and/or the lack of specific material and information utilized by Mr. Goldstein to formulate his opinions in this case, Mr. Goldstein’s court presentation and testimony was not persuasive. Another troubling issue with Mr. Goldstein was Mother’s inability to recognize his very 5 clear credibility problems, which did not outweigh her need to present him as an expert witness in an attempt to disparage the Father. Unfortunately, Mother lost credibility as a witness, but also as a parent who is truly placing her children’s best interests above all else. It is for these reasons and those further discussed in the best interest chart attached to this opinion that the court finds in favor of the Father and grants his request for shared physical custody and denies Mother’s request for primary physical custody. “To forgive is to set a prisoner free and discover that the prisoner was you.” – Lewis B. Smedes ORDER OF COURT th AND NOW this 28day of July, 2021, after hearing in the above captioned action, it is hereby Ordered and Directed as follows with regard to the custody of the minor children, C.J.R.W. and N.G.W.: 1. Legal Custody: The Mother, Katherine Wiser, and Father, Joshua Wiser, shall have shared legal custody. Each parent shall have an equal right, to be exercised jointly, with the other parent, to make all major non-emergency decisions affecting the Children's well-being including, but not limited to, all decisions regarding their health, welfare, education and religious training 4 There were six sustained charges related to a custody/divorce court case where Mr. Goldstein represented the mother before Judge Amodeo. Mr. Goldstein contended that the disciplinary charges related to this court case were brought as retaliation for his criticism of the court system and Judge Amodeo. The opinion of the Grievance Committee was that there was no retaliation and that his conduct exceeded the bounds of propriety as a courtroom advocate with a pervasive nature of deceptive conduct. While Mr. Goldstein did testify that in his opinion his license was suspended for retaliation purposes following his conduct in the child custody and divorce case before Judge Amodeo, he completely ignored the charges sustained related to improper handling of client funds. 5 Mother does not appear disingenuous. She seems to have an internal barrier preventing her from acknowledging the Father’s present-day station in life. and upbringing, with a view toward obtaining and following a harmonious policy in the Children's best interests. Day to day decisions shall be the responsibility of the parent then having physical custody. With regard to any emergency decisions which must be made, the parent having physical custody of the children at the time of the emergency shall be permitted to make any immediate decisions necessitated thereby. However, that parent shall notify the other parent of the emergency as soon as possible. Neither parent shall impair the other parent's rights to shared legal custody of the children. Pursuant to the terms of 23 Pa.C.S. § 5336, each parent shall be entitled to all records and information pertaining to the Children, including, but not limited to, medical, dental, religious or school records, the residence address of the Children and of the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. 2. Physical Custody: The parties shall share physical custody as follows: Week 1: Mother will exercise custody from Sunday at 8:30 a.m. to Tuesday at school/daycare drop off or 4:00 p.m. if there is no school or daycare. Father will exercise custody from Tuesday at 4:00 p.m. to Friday at school/daycare drop off or 4:00 p.m. if there is no school or daycare. Mother will exercise custody from Friday at 4:00 p.m. to Wednesday of Week 2 at school/daycare drop off or 4:00 p.m. if there is no school or daycare. Week 2: Mother's custodial period will be as stated in "Week 1" above. Father will exercise custody beginning at 4:00 p.m. on Wednesday until Sunday of Week 1 at 8:30 a.m. The custodial parent on weekdays when there is school or daycare is responsible for the children until the 4:00 p.m. exchange time, even if school or daycare is in session that day. For example, if there is an early dismissal, doctor's appointment, or other event requiring the parent's transportation and care, the custodial parent remains responsible until the 4:00 p.m. exchange time unless the parties otherwise mutually agree. 3. Right of First Refusal: In the event a parent is unavailable to provide care for the children during his or her period of custody, that parent shall first contact the other parent to offer the opportunity to provide care before contacting third party caregivers. This provision shall only apply where the custodial parent will not be able to provide supervision for the children for the overnight period of their custodial period. 4. Holidays: The custody schedule for the holidays shall be arranged as mutually agreed upon by the parties. In the event that the parties are unable to agree on the custody arrangements for the holidays the parties shall follow the custody schedule stated below: a. Christmas: The Christmas holiday shall be divided into two segments. Segment A shall be from December 24th at noon until December 25th at noon. Segment B shall be from December 25th at noon until December 26th at noon. For Christmas 2020 and all even-numbered years, Mother shall exercise custody during Segment A and Father shall exercise custody during Segment B. For 2021 and all odd-numbered years thereafter, Father shall exercise custody during Segment A and Mother shall exercise custody during segment B. b. Thanksgiving: Father shall have custody on Thanksgiving in even-numbered years and Mother shall have custody on Thanksgiving in odd-numbered years. The period of custody for Thanksgiving shall be from the Wednesday before Thanksgiving after daycare or school until the Friday after Thanksgiving at 4:00 p.m. c. Mother's Day/Father's Day: Mother shall exercise custody on Mother's Day every year and Father shall exercise custody on Father's Day every year. The custodial times shall be from 9:00 am until 8:00 pm. d. Children's Birthdays: The parent who does not have custody of the children on their birthdays shall be entitled to a phone call with the children on their birthdays. e. All other holidays shall be shared by agreement of the parties. The holiday schedule shall take precedence over the regular custody schedule. 5. Transportation: In the event that the custody exchanges do not take place at school or daycare, the parties shall meet at Sheetz in Newville to exchange custody. The minor children shall only be passengers in a vehicle that is driven by an individual who has a valid driver's license. At all times that the minor children are passengers in a vehicle, he or she should be properly constrained in a safety seat that is appropriate for the child's age, weight, and height. 6. Vacation: Each parent shall have two non-consecutive weeks of vacation with the children each year. The parent's selected week shall incorporate his/her regular custodial weekend. The parents shall give thirty (30) days advance written notice of the requested time and this vacation time shall supersede the regular physical custody schedule. In the event the parties schedule conflicting vacations, the party first providing written notice shall have the choice of vacation. Prior to departure, the parents shall provide each other with the itinerary of their vacation, who will be accompanying the child on the vacation, and a telephone number at which they can be reached during their vacation. 7. Reasonable Telephone or Skype Contact: The non-custodial parent shall have reasonable telephone or Skype contact with the children. The custodial parent shall assist the children in placing the telephone call to the non-custodial parent, if necessary and appropriate, but the custodial parent shall not monitor the call or place the call on speaker phone without the consent of the non-custodial parent. 8. Extracurricular Activities: The parents shall decide together what activities the children are involved in, but neither party shall unreasonably withhold permission for the minor children to be enrolled in an activity. Unless otherwise agreed upon by the parties, the children should only be enrolled in one extra-curricular activity per season. The parents shall make the activities that the minor children participate in a priority. To the best extent possible, the parent who has custody of the children shall ensure that the children attend their activities. The children's preferences into what activities they should participate in should be given a lot of consideration by the parties. 9. Disparaging Remarks: Neither party may say or do anything nor permit a third party to do or say anything that may estrange the children from the other party or injure the opinion of the children as to the other party, or may hamper the free and natural development of the children's love and affection for the other party. To the extent possible, both parties shall not allow third parties to disparage the other parent in the presence of the children. 10. Excessive Alcohol, Illegal Substances, and Smoking: During any periods of custody or visitation, the parties shall not possess or use illegal substances or abuse prescription drugs, nor be under the influence of alcoholic beverages to the point of intoxication. The parties shall not smoke in confined spaces in the presence of the children. The parties shall assure, to the extent possible, that other household members and/or guests comply with this provision. 11. Relocation: A parent proposing to change the residence of the children which significantly impairs the ability of a non-relocating party to exercise custodial rights shall follow the procedures required by 23 Pa.C.S. §5537 and Rule of Civil Procedure 1915.17 as set forth in Exhibit A attached to this Custody Order/Parenting Plan. 12. Modification: The parties may modify the provision of the Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT: Carrie E. Hyams, Judge Casey L. Johnson-Welsh, Esquire 635 N. 12th Street, Ste. 101 Lemoyne, PA 17043 cwelsh@daleyzucker.com For the Plaintiff Fawn E. Kehler, Esquire P.O. Box 112 Etters, PA 17319 fkehler@kehlerlaw.com For the Defendant CUSTODY CHECKLIST FACTORDiscussionFACTOR OUTCOME Which party is more likely to Mother’s rationale for limiting Father’s This Factor favors the encourage & permit frequent contact is unreasonable in light of the totality of Father. & continuing contact between the circumstances. Mother also had filed a the child & another party Notice of Proposed Relocation to South Carolina to move with her paramour. This was filed, but later withdrawn. Therefore, Father is more likely to encourage & permit continuing contact between child & the other party. The present &past abuse Mother filed for a PFA in Feb. 2019. No Final Due to the 2019-2020 committed by either party or PFA. Agreement to a brief Temporary PFA. period of time and member of the party’s Father’s questionable Father sent Mother a text msg post Temporary household, whether there is a PFA telling her and her boyfriend to have a decision making during continued risk of harm to the good night. Violation hearing was held and that timeframe, this child or an abused party &ICC was dismissed. Hearing on request for Factor favors the which party can better extension. Request denied. CYS involved May Mother. provide adequate physical 2019 due to C.W.’s comments made at daycare. safeguards & supervision of CYS did not open a case. CYS also involved in the child. Feb. 2020. Father took C.W. to Motorama at the Farm Show complex. He admitted to taking an anti-depressant medication that morning (Celexa) and he brought vodka mixed with Gatorade in a Gatorade bottle into the complex. He had been filling sick earlier in the week. While at Motorama he started not feeling well, light headed and fainted at the complex. There was police involvement at the time, no police report. He and C.W. rode to the hospital in an ambulance and his parents came and brought Father and C.W. home from the hospital. CYS came to house, did a check, closed the case. As Father had a drink that day he agreed to soberlink and a home visit, but CYS closed case after the visit. Mom filed another PFA, but it was dismissed. While Father had a series of concerning events from Feb. 2019-Feb. 2020 (period following separation), Father’s compliance with obtaining a drug and alcohol evaluation (no treatment recommended) and use of Soberlink for 120 days without any infractions and his demonstration of stability andappropriate parenting since March 2020 (16 months) has resulted in this Court finding that there is no risk of harm to the children. Father sees that the kids have a routine that This Factor is equal. The parental duties they follow. He does bath and bedtime duty, performed by each party on meals, and takes them to daycare or his behalf of the child. parent’s house before work and on the weekends they have family time and take trips. Mother also performs all parental duties when the children are in her care and have them follow a routine. The need for stability & This Factor is N/A at this time, however, it is N/A continuity in the child’s noted that the Mother had previously filed and education, family life & withdrew a Notice of Relocation to South community life. Carolina. The availability of extended This Factor favors Father’s brother/s are local, his parents family Father. (paternal grandparents) live just outside of Carlisle. Mother does not have family who is local The child’s sibling The subject children have no other siblings. N/A. relationships N/A. The well-reasoned preference N/A given the age of the children.N/A of the child, based on the child’s maturity & judgment The attempts of a parent to N/A N/A 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. Both parents have provided a stable and loving This Factor is equal. Which party is more likely to environment and have positive relationships maintain a loving, stable, with the children. consistent & nurturing relationship with the child adequate for the child's emotional needs Which party is more likely to Both parents are capable and committed to This Factor is equal. attend to the daily physical, providing for all of the needs of the children. emotional, developmental, Both are involved in school and extra- educational & special needs curricular activities regarding the children. of the child The proximity of the This Factor is equal.This Factor is equal. residences of the parties Each party's availability to Both parents utilize appropriate daycare and This Factor is equal. care for the child or ability to family caretakers when necessary. make appropriate child-care arrangements The level of conflict between The parents both demonstrate a willingness to This Factor favors the parties & the willingness work towards the best interest of the children, Father. & ability of the parties to however, Mother’s conduct related to her cooperate with one another. relentless pursuit of having the Father A party's effort to protect a branded as abusive is concerning. child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party While this Court finds The history of drug or alcohol Father had an incident involving alcohol use in that there no ongoing or abuse of a party or member Feb. 2020 (see above for details) resulting in no current drug and alcohol of a party's household criminal charges and no ongoing CYS concerns, this Factor involvement following a safety check. Father overall weighs in favor of agreed to utilize Soberlink for 120 days, which Mother due to the required him to use a breathalyzer type history involved. machine for testing purposes. He had no positive tests and also obtained a drug and alcohol evaluation and there were no recommendations for treatment. As noted above, Father’s poor judgment concerning his use of alcohol in the past and the steps he took to address the questionable incidents in addition to his demonstration of stability for 16 months has resulted in this Court finding that there is no risk of harm posed to the children. The mental & physical Both households are appropriate with no This Factor is equal. condition of a party or concerns. member of a party's household Any other relevant factor Mother’s inability to recognize Father’s growth This Factor favors as a parent or his completion of court ordered Father. directives related to her drug and alcohol concerns combined with her quest to label the Father as an abuser, results in concerns for her ability to place her children’s needs above her own.