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HomeMy WebLinkAbout2020-05704 KIMBERLEA WILLHIDE, : THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : No. 2020-05704 CIVIL TERM : TIMOTHY WILLHIDE, : Defendant : CIVL ACTION-LAW OPINION Smith, J., August 11, 2021 FINDINGS Mother, Kimberlea Willhide, and Father, Timothy Willhide, began a relationship in March 2012. Their only child, A.W. (“Child”) was born on March 14, 2014, after which, Father moved into Mother’s home. The parties’ married on June 15, 2018, and thereafter, built a house on property located next to Mother’s family. The parties moved into that home in September 2019. The parties separated in July 2020, at which time Mother filed for a Protection from Abuse Order, alleging, among other things, that Father threw a shoe at her. After a hearing on the matter, a Final Protection from Abuse Order was entered by Judge Guido on August 18, 2021. As part of the Order, Father’s periods of physical custody were limited to every other weekend. That Order expired on January 1, 2021. Cumberland County Children and Youth Services (“CYS”) has been involved at least twice since the parties’ separation. Mother reported Father for witnessing the incident between the parties which led to the Protection from Abuse Order and for sticking his finger down Child’s throat. That report was founded for domestic violence. Father reported Mother for hitting Child in the mouth. That report was founded for inappropriate discipline. Services were declined in both instances. Mother initiated this custody action on October 5, 2020. The parties were unable to agree to a custody order at conciliation, so the terms outlined in the Protection from Abuse Order were memorialized in the December 8, 2020 Custody Order, and a hearing date was set. This has been a contentious matter. We held several status conferences in this matter after the expiration of the Protection from Abuse Order in order to establish a custody schedule pending trial. We appointed Amy L. Owen, Esquire (“GAL”), as the guardian ad litem to facilitate an agreement. The parties were often unwilling to agree to any terms, and Father had difficulty regulating his emotions during court proceedings. The parties eventually agreed to a summer schedule of shared physical custody on an alternating weekly basis. That schedule commenced on June 8, 2021, after Child’s last day of school. Trial was scheduled to determine a more permanent schedule for school. Page 1 of 13 Mother lives in Newburg, Cumberland County, in the marital home with Child and her 18 year-old daughter, Alexis Mitchell. The residence is a 25-minute drive from Child’s school. Mother’s father, brother, and sister-in-law live on the adjacent property. Mother works at Corelle Brands in Greencastle, Franklin County, which is a 45-minute drive from the marital residence and a 30-minute drive from Child’s school. Mother works Monday through Friday from 6:30 a.m. to 3:00 p.m., and an occasional Saturday. She also has mandatory overtime and must commence work at 4:30 a.m. on those days. Mother’s older daughter lives with her and assists in the care of Child. Alexis testified that this year while Child was participating in virtual schooling, she assisted him while Mother was at work. She would help him sign onto Zoom each morning, then she would do her school work. She reported that most of her classes were on an alternate schedule from Child’s, so she was able to supervise him properly. Alexis reported that she had to help Child particularly with math, reading and writing sentences. Alexis also participated in the custodial exchanges while the PFA was in effect. Mother’s sister-in-law, Sissy Mitchell, also testified. She, her husband (Mother’s brother) and their two daughters live on the adjacent property from Mother. She also participated in the custodial exchanges while the PFA was in effect. She and her family see Child every other day and her children are very close with Child. Mother’s primary concern is that Father is argumentative with her about everything. The parties disagree with each other on nearly every facet of Child’s life, most notably, Child’s education and counseling. Child began kindergarten during the 2019-2020 school year. During that school year, Child’s teachers determined that Child needed services for speech, and Child was enrolled in speech classes. The school also determined that Child needed an additional evaluation for speech and a learning disability. Father would not agree to the evaluation. Father testified that when he received the paperwork for the evaluation, he believed that “something didn’t look right,” and he called the school. The school said that they would get back to him, but then they closed due to the COVID-19 Pandemic. Consequently, Father never the paperwork. When school returned to in person, Child was able to be evaluated for speech and language services, but Father still refused to acquiesce to the learning disability evaluation. Father’s reasoning was that he wanted to know if the evaluation could tell the difference between a learning disability and lack of supervision and homework assistance on Mother’s part. After communication from the GAL and a status conference, we Ordered that Child be evaluated for a learning disability on May 7, 2021. That evaluation has commenced, and, according to Mother, it will be completed in September when Child returns to school. The other major source of contention between the parties is Child’s counseling services. It was the GAL’s initial recommendation that Child be enrolled in therapeutic counseling to address his thoughts and feelings regarding the divorce. Father was opposed to Child engaging in counseling, and even though we ordered that Child participate in counseling at the May 7, Page 2 of 13 2021 status conference, Father has not taken Child to counseling during his custodial periods. The GAL testified that Child’s counselor reported to her that Father’s communications to her have been “belligerent and combative.” Mother has taken Child to four counseling sessions and Child has been diagnosed with anxiety. Mother reported that Child’s counselor wants to see Child every week, but because Father will not set up the appointments, Child has only been going during Mother’s custodial periods, every other week. Mother is also concerned that Father cannot properly care for Child during his custodial times. She reported that Child exhibits behavioral issues during exchanges, and that after returning from Father’s care, he yells, is defiant, and lies. Mother stated that she has always been the primary caretaker for Child, and that she was always the parent to prepare Child’s meals, help him with his homework, and schedule his doctor appointments. Mother also testified that Father is often confrontational with her, so they do not communicate well. Mother, Ms. Mitchell, and Alexis all testified that Father would often yell at Alexis during custodial changes, including telling her to lose weight and throwing a backpack at her on one instance. Father admitted to doing so, but stated that he “feels bad” about how he acted. Father did indicate that he wants to work toward co-parenting, and Mother testified that she and Father were able to come to an agreement on Child’s swimming lessons together this summer without Court intervention. Father lives in Orrtanna, Adams County, in a 2-bedroom ranch-style home located on a 5-acre property. Child has his own room and belongings at Father’s home. The home is a 35- minute drive from Child’s school and a 45-minute drive to the marital residence. Other than Child, Father lives alone. Father works in Newville. His place of work is a 15-minute drive to Child’s school. His typical work schedule is Monday through Friday from 7:00 a.m. to 3:00 p.m. Father said that his schedule can be modified based on Child’s needs. Father plans for Child to attend the Boys and Girls Club before and/or after school care program at Child’s school during his custodial time. Father has family that lives in the area. His mother (Paternal Grandmother) lives in Chambersburg and watches Child during the summer while Father is at work. Paternal Grandmother also watches Father’s half-sister’s children while she is watching Child, so Child sees those cousins frequently. Father’s cousin also lives nearby with her children and he and Child see them often. Father’s primary concern is that Mother is not adequately supervising Child, particularly regarding his education. During Child’s virtual learning, Father pointed out that Mother left Child alone with Alexis, who was also doing her own virtual learning, and often times Alexis’ boyfriend would be at the home as well. Alexis stated that her boyfriend did come over to the house at times, and that sometimes her schedule would overlap with Child’s, but often they were on Page 3 of 13 opposite schedules so she could supervise him. Father also stated that the school believes that Mother is doing Child’s homework for him. Mother did admit to doing Child’s homework one time because it was “a really hard test,” and that Child could not do the work as assigned. Father stated that his primary reason in denying the learning disability evaluation was because he wanted to ensure that the school could tell the difference between a learning disability and inadequate supervision and assistance with his work. Father admitted that he has been difficult throughout this process. Father testified that 1 he believes things will get easier when “the house is sold” and the parties’ divorce is finalized. He stated that he will do anything for Child and he wants what is best for Child. Father wants to raise Child to good person and a productive member of society. Father is seeking shared legal and physical custody. Child is 7 years-old and entering second grade at Nancy Grayson Elementary School in the Shippensburg Area School District. Child was interviewed for this proceeding. Child was hesitant to express any information regarding either party. The GAL reported that Child made it clear to her that his parents tell him specifics regarding this case and that Child knows more about this custody proceeding than a typical child of his age would. 2 The GAL testified and provided in her written report that she believes that Father is having difficulty processing the break up of his family unit, and that leads him to lash out at Mother and make disparaging remarks regarding her. Ultimately, however, the GAL recommended that the parties share physical custody if Father enrolls in counseling. The GAL recommended that Father exercise partial physical custody until such time as Father has completed 12 counseling sessions. Father agreed with the GAL that he needs to enter counseling and is willing to do so, but would prefer to keep a shared physical custody schedule while he attends counseling. CUSTODY FACTORS Under 23 Pa.C.SA. §5328(a), when awarding any form of custody, the court shall determine the best interest of the child by considering all relevant factors including the following: (1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party. 1 It should be noted that the marital residence has not been ordered sold. The parties are still litigating their divorce and equitable distribution claims. See Willhide v. Willhide, No. 2021-01986 (March 30, 2021). 2 See Court’s Exhibit 1. Page 4 of 13 The pervasive theme of the case and trial is Father’s inability to control, or rather, address, his emotions. He has a deep love for Child. That is abundantly clear. However, it is also abundantly clear that he is emotionally wrought with the divorce, custody, and the fact Mother is living in the house “he built.” It is as if the world, to include the Court system, is against him. He cannot see past the miasma of fear and emotional pain to recognize that his actions are affecting Child. He lashes out against Mother, Mother’s daughter, and even the GAL. If he just paused though, he would realize that the GAL recommended shared custody, albeit with personal therapy. It took the Court several times to point out that fact to Father. When he does pause, and psychologically breathes, Father understands. He is not abusive in the sense he malevolently and intentionally acts, but he fears what he does not understand and reacts emotionally to what he fears, ultimately preventing him from understanding, reinforcing the fear, and creating a negative feedback loop. Hence, the Protection From Abuse order. But he is not entitled to do these things. Mother has legal and moral equivalency. She is a grown adult and does not have endure his animosity. The house is part of the marital estate and subject to equitable distribution. What will be will be. But Father is the father and always will be. In one sense, the fact that Father is emotional is a good thing. He cries. He is a man. He is human. He must, however, channel these emotions in a positive manner. Not every decision about Child must be analyzed and agonized over to see if Mother is somehow negatively affecting his rights. It is not about him. Therapy for Child is an easy decision. Evaluating Child for learning disability or speech impediment is an easy decision. It is ultimately about the Child. For these reasons, for Father’s misunderstanding and fear, this factor favors Mother. (2) The present and past abuse committed by a party or member of the party's household, whether there is a 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. Page 5 of 13 There was a Protection from Abuse Order entered against Father for verbal abuse and aggressive acts committed against Mother. In many ways large and small, Father lashes out against Mother during the marriage, after the marriage, towards school professionals, and even Mother’s daughter. Again, it is his lack of big picture understanding, fear, and emotional reaction that compel him. Mother for her part, is not without sin. She “popped” Child in the mouth for discipline purposes. Children and Youth Services validated the report for inappropriate discipline, though it declined services and closed the case. Overall, Father has no concerns about spanking, but opposes hitting Child on the face. Mother is the opposite. This will be addressed via court order and no corporal punishment will be allowed. The parents will have to learn a new discipline paradigm. This factor on the balance favors Mother. (2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services). Mother has a validated Children and Youth report for inappropriate discipline as does Father. This factor is neutral. (3) The parental duties performed by each party on behalf of the child. For much of the parents’ relationship, Mother has performed the bulk of the parental duties. Father is not incapable of performing parental duties, but his emotional reactions and innate distrust of Mother inhibit his ability to truly coordinate with Mother and relax in his role as Father. For example, because of medical conditions, Father likes to sleep on a recliner and Child sleeps on the couch next to him. While this is not inherently ‘wrong’, it is indictive of the unbalanced attachment Father has with Child. Father tends to tell Child things Child should not know. There were repeated instances where Child knew things of the divorce, the house, and custody. Father stated “he would never lie” to his Page 6 of 13 Child which presumably is a good thing. However, one does not have “to lie,” rather one just needs not to tell Child certain things. A child is a child. Father does not realize that it is unhealthy to unburden his soul on a 7 year-old. There are some things that are between parents. It is acceptable to tell Child certain things are between “Mommy and Daddy” and that everything is going to be “okay.” With time, Father will grow into his role and grow more comfortable in scheduling doctor’s appointments, dental exams, extracurricular activities, parent teacher conferences and the like. For now, this factor favors Mother. (4) The need for stability and continuity in the child's education, family life and community life. This factor does not particularly favor one parent or the other. Rather, it favors a shared custody arrangement. To explain: this trial was almost superfluous. On the onset of the proceedings, Mother was acting on a perceived position of superiority in that because Father was emotionally reacting to everything and generally not cooperating, she de facto, would have primary custody. Father, for his part, believed the system was against him and his child “was going to be taken away.” Through the numerous status reports, conferences, and interim GAL reports, both parents were gradually disabused of that notion. The final and very comprehensive GAL report recommended shared custody with the caveat Father attend counseling. Mother reluctantly agreed to all the recommendations but definitively wanted, as the GAL recommended, Father to attend 12 sessions before fully shared custody. Father was still vaguely confused, defiant, and desired a trial despite the recommendations. The true stability in this situation is for both parents to recognize each other’s legal and moral equality. Mother has given up on Father because of his emotional and inappropriate reactions and his intransigence, and Father views each and every action of Mother with deep and unabiding suspicion. This factor favors no one. (5) The availability of extended family. Page 7 of 13 In addition to her adult daughter, Mother’s father, brother, and sister-in-law all live on the property adjacent to the marital residence. Father’s mother lives in Chambersburg, and he utilizes her for childcare. Father’s half-sister and cousin live near Father, and they see Child often. This factor is neutral. (6) The child's sibling relationships. Mother has an adult daughter that helps with Child. This factor favors Mother. (7) The well-reasoned preference of the child, based on the child's maturity and judgment. It is evident that Child is attached to both his parents. It is also evident that Child is negatively affected by the proceedings and made mention of things he should not have known. He was shy, confused, and could not really express an opinion. This factor is neutral. (8) 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. Both parents say and do little things that in the aggregate do psychological harm to Child. As previously discussed, Father tends to unburden himself on Child in a self-deluded guise of being “honest.” Mother has little quips. For example, during the proceedings Child was sequestered in a room. Mother off- handedly called it his “jail” and after Child was interviewed Mother said it again in that he could go back to “jail.” While on the surface this seems harmless, Child now equates Court proceedings with jail, parental disagreement with court proceedings, and thus in the mind of a 7 year-old, parental disagreement with jail. In essence, Mother too has failed to insulate Child. In the aggregate, however, this factor favors Mother. Page 8 of 13 (9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs. It is evident that Child needs both his parents and draws emotional support from both. It is also evident, as previously discussed, Father shares too much or age-inappropriate matters. This factor is neutral. (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child. Although there were some time delays due to COVID and Mother’s reluctance to pursue some matters, Mother is more attune to the developmental needs of Child. However, it is not that Father is not concerned, rather he is distrustful of Mother’s motives and perpetually in flight or fight mode. This inhibits his ability relax in the role of Father. This factor favors Mother. (11) The proximity of the residences of the parties. The proximity of the residences does pose some concern for the Court as the respective residences are approximately 45 minutes apart which makes timing difficult, but not impossible. The school appears to be located somewhat equidistant between the residences, making it a natural exchange point. Other non-school day exchanges could prove more logistically difficult. This factor is neutral. (12) Each party's availability to care for the child or ability to make appropriate child-care arrangements. Each party works regular hours necessitating some type of childcare. Mother typically relies upon her adult daughter, but it is unclear for how long her daughter will continue in that role. Father has a competent plan for either before or after school care. Both parties have extended family or friends for emergency care if needed. Page 9 of 13 This factor is neutral. (13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party. There is a high degree of conflict between the parties and will be for some time until the divorce and marital estate is settled. Father has an innate distrust of Mother and questions everything. Mother tends to ignore Father. On the balance however, this factor favors Mother. (14) The history of drug or alcohol abuse of a party or member of a party's household. There was no significant testimony as to this factor. This factor is neutral. (15) The mental and physical condition of a party or member of a party's household. Though both parents are under tremendous stress, it is evident that Father is severely affected by the turmoil. While his acts are not malevolent in nature, they are destructive and counterproductive. With appropriate therapy, the Court believes Father can channel his emotions in an appropriate manner. This factor is neutral. (16) Any other relevant factor. This factor is non-applicable. DISCUSSION Page 10 of 13 The Child Custody Act provides that, “upon petition, a court may modify a 3 custody order to serve the best interest of the child.” It is within the trial court’s purview as finder of fact to determine which enumerated best interest factors are most salient 4 and critical in each particular child custody case, but “\[a\]ll of the factors listed in 23 Pa.C.S. § 5328(a) are required to be considered by the trial court when entering a 5 custody order.” It is, therefore, within the trial court's discretion based on the record before it to determine the relevant weight to give each of the Section 5328(a) factors in 6 a particular case, but ultimately, when a trial court orders a form of custody, the best 7 interest of the child is paramount.” But for Father’s inappropriate, destructive, and ultimately counterproductive behavior this case would be shared custody without question. Both parents are similarly situated, have adequate residences, fulltime employment, friends and family, and they provide and care for Child. Each parent has their strengths and weaknesses as well. The main concern is Father’s inability to control his emotions. He overshares with Child, lashes out at Mother’s daughter and Mother, questions everything, and generally slows down any parenting decision. He approaches everything with distrust and projects his fear onto Child. This is not healthy. He fails to realize he is modeling negative behavior for Child despite his authentic desire for Child to be a good adult and thrive in society. He is his own worst enemy. With that said, Father in his heart, is a good man. To reiterate, Father is a good man. But like all of us, he can strive to be better. He absolutely must engage in counseling, stop blaming Mother for “stealing” “his house,” stop insulting Mother’s daughter, stop imbuing every action Mother takes with ill will. Divorces are traumatic. Separations are traumatic. It is not weakness to seek help. In fact, it is the opposite. It is modeling good behavior. Mother requests the custody arrangement reflect the recommendations of the GAL in that the week-on/week-off summer arrangement convert to a primary Mother custody arrangement during the school year if and until Father shows proof of 12 counseling sessions at which time the arrangement would re-convert to shared custody. Mother also shares some concern over week-long periods of custody with Father as 3 23 Pa.C.S. § 5338(a). 4 M.J.M. v. M.L.G., 63 A.33d 331 (Pa. Super. 2013) appeal denied 68 A.3d 909 (Pa. 2013). 5 J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)(emphasis in original). 6 Id. at 289 (citing M.J.M., 63 A.3d at 339). 7 T.M. v. H.M., 210 A.3d 283, 288 (Pa. Super. 2019), appeal denied, 216 A.3d 1018 (Pa. 2019)(citing P.J.P. v. M.M., 185 A.3d 413, 417 (Pa. Super. 2018)(internal citation omitted)). Page 11 of 13 Father’s inadvertent emotional/inappropriate sharing over a long period tends to have more of a detrimental effect on Child. There is some merit to this argument. However, the Court respectfully disagrees at least to the shared-primary-shared custody scheme. Foremost, this would be confusing to Child. The Child already enjoys shared custody. While many custody arrangements reflect shared custody during the summer and primary custody during the school year, this arrangement would go back and forth and deprive Child mental stability. Secondly, “12” sessions are arbitrary. Although “12” sessions no doubt represents an educated guess by the GAL as to the length of time needed for Father to become stable based upon her extensive training, education, and experience, they do not account for this particular individual. By that, the Court means every care plan is crafted for the individual based on a continuum of care. Twelve sessions would incentivize Father to “check the box” and rush through the sessions making them yet more hurdles to overcome to “get his kid back” as opposed to something meaningful to better himself and his relationships. He would view them as punitive which would defeat the purpose. In any future modification, Father would then produce the 12 completed sessions as proof he is “better” rather than actually engaging in self-reflection and meaningful change. Instead, the Court would rather order shared custody and therapy simultaneously. This would create a paradigm shift in that the onus would be on Father to honestly and authentically engage in therapy. In any future modification alleging misbehavior, the burden would be on him to show meaningful compliance with recommended therapy. If he, as he has repeatedly and emphatically stated, is willing to do “anything” for Child, he can demonstrate such for the Court. As to the length of the periods of shared custody, although a week-on/week-off is more logistically feasible, the Court agrees with Mother in that at this point in time, shorter, more frequent periods are better suited to balance the emotional influence of Father. For the foregoing reasons, shared custody on a 2-2-5 basis will be ordered. This will allow both Father and Mother to have set days during the week to facilitate planning. It is acknowledged that Father needs therapeutic counseling. Such will be ordered. By the Court, __________________________ Matthew P. Smith, J. Page 12 of 13 Jane Adams, Esquire 17 W. South Street Carlisle, PA 17013 Timothy Willhide PO Box 271 Newburg, PA 17240 Amy L. Owen, Esq. PO Box 109 Lemoyne, PA 17043 Page 13 of 13