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HomeMy WebLinkAbout2020-05155 THOMAS B. STUCKEY, JR. : THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : No. 2020-05155 CIVIL TERM : RAVEN N. ZEIGLER, : Defendant : CIVL ACTION-LAW OPINION Smith, J., February 18, 2021 FINDINGS Father, Thomas B. Stuckey, Jr., and Mother, Raven N. Zeigler, met as teenagers around 2004. Their union produced one daughter, S.L.J. (YOB 2006)(“Child”). Child is currently in the primary physical custody of Father, with Mother exercising physical custody every weekend except the first weekend of the month. The parties have shared custody of Child for the past four years. Mother indicates that Child lived primarily with her during her early years, and Father acknowledges that he did not exercise custody of Child between 2014 and 2016 while he was living in Texas. When Father returned to Pennsylvania in 2016, he resumed custody of Child while living with his parents. Father’s parents also gave Mother a rental house to live in with Child and her other children at that time. In 2018, Father moved into his own residence in Camp Hill. Mother continued to reside in Harrisburg until May 2020 when she decided to move to Prince George’s County, Maryland to obtain new employment. Child did not want to move with Mother because she did not 1 want to leave her school and friends, so Mother moved to Maryland with her three 2 other children, and Child stayed in Camp Hill with Father. At the time, however, Mother believed that Child would eventually join her in Maryland, and Mother enrolled her in school through the Prince George’s County School District. She encouraged Child to sign into her virtual classes and meet other children and her teachers. Child did attend virtual school through Prince George’s County, but on the fourth day, she called Father and asked him to pick her up. Father 1 Child did have to leave her school and friends, however. Child had previously been attending Swatara Middle School in Central Dauphin School District based on Mother’s residence. When she moved in with Father, she transferred to Camp Hill Middle School in Camp Hill School District. 2 Father was under the impression that Mother had given her consent to (or at least acquiesced to) Child remaining in Pennsylvania and attending school in Camp Hill. Mother maintains that she did not agree to Child remaining in Pennsylvania and always intended on Child living with her in Maryland. Page 1 of 14 testified that Child told him Mother was forcing her to do school in Maryland after she said she could attend Camp Hill. Father took Child from Mother’s home, and initiated this action. Child has been living primarily with Father since that date. Father lives in Camp Hill with Child and his four year-old son, with whom he exercises physical custody every other week. Child has her own room and belongings in Father’s home. Father ensures that Child wakes up for school, he feeds her and provides for all of her needs, and provides for her financially. Father stated that Child has chores and his primary method of discipline if she does not perform her chores or misbehaves is to take away her phone. Father indicated that he and Child talk with each other and he provides her with emotional support. Father feels that he and Child have a close relationship because they have similar personalities. He wants Child to be able to be herself with him. Father is rural carrier associate with the United States Postal Service. He typically works Monday through Friday, 8:00 a.m. until 5:00 p.m., but he may get done earlier or later depending on his route. Because of Father’s work schedule, Child is responsible for ensuring that she does her school work on her virtual schooling days. Father did state that on occasion, his mother will check in on Child to make sure she is doing her school work. Father testified that despite his work schedule, he does try to check Child’s school work on a regular basis. Father says that Child is doing well in school and that her teachers love her. He mentioned that it was hard for Child at the beginning of the year, and that she would be doing better if school were solely in- person, but he reported that her grades are getting better. In addition to his son, most of Father’s family lives in the area. His parents live in Harrisburg, his aunt lives in Mechanicsburg, and his grandmother lives in Carlisle. Child is close with her extended family and sees them regularly. Child and her brother are developing a close relationship and she sometimes babysits him. Father’s main concern is that Child has lived in Central Pennsylvania her whole life, and that she needs to stay in Central Pennsylvania near family for consistency and stability. Not only does Father’s whole family live in the area, but Mother’s family lives in Central Pennsylvania as well. Father is worried that if an emergency were to occur, Mother would have no extended family or childcare resources nearby. Father indicated that when Mother told him that she was moving, he wanted to discuss other options for Child, but then Mother just moved anyway and enrolled Child in school without talking to him. When Father asked about enrolling Child at Camp Hill Middle School, Father testified that Mother told him “You don’t need my help to enroll Page 2 of 14 her in school.” Father stated that he would have been ultimately agreeable to Child moving to Maryland with Mother if that is what she wanted to do, but Child wanted him to file this action so that she could stay in Pennsylvania. Mother lives in Forestville, Prince George’s County, Maryland, with Child and her three other daughters, ages 15, 12 and 10. Mother’s other daughters all share the 3 same father, with whom Mother shares physical custody on alternating weekly basis. At Mother’s home, Child shares a bedroom with her older sister. Mother indicated that she moved to Maryland to get a better-paying job. Mother currently works as an expungement clerk at the Circuit Court for Prince George’s 4 County. She works fulltime and makes roughly $20.80 an hour. When Mother was living in Pennsylvania, she worked as an administrative clerk with the Pennsylvania Department of Transportation and made roughly $17.00 an hour. Mother conceded, however, that although she is making more money in Maryland, the cost of living is higher, and her rent is approximately $300 more per month. Mother does receive government benefits in the form of supplemental nutritional assistance and Medicaid. Mother indicated that she is able to provide financially for all of her children. Mother’s extended family all live in Pennsylvania. Her mother, Regina Dunbar, testified that it is a two-hour drive from Harrisburg to Forestville, and she makes the trip whenever Mother needs her. Additionally, Mother testified that she comes to Pennsylvania to visit with her family every weekend. Mother indicated that she has “church family” in the form of close friends near her home in Maryland that she can rely on if she needs childcare or in the event of an emergency. Mother’s primary concern is that Child has lived with her all of her life and that Father is not as well-equipped to take care of her. Mother and her witnesses highlighted that Mother is better able to tend to Child’s medical needs because Child is female and Mother is a woman. Mother also is concerned that Child will be growing up away from her sisters, with whom she has lived all her life. Child’s older sister testified that Child’s sisters miss her and are lonely without her in the home. Mother stressed that she told Father that she was going to move several months before she did. She did not think that she had to file for relocation because the parties 3 Mother’s ex-husband, Ensign Zeigler, who is the father of her other three children, also lives in Central Pennsylvania. It is unclear how Mother and Mr. Zeigler are going to handle custody when the children return to school in person. 4 Mother testified that her working hours currently are only part time because of the COVID-19 Pandemic, but she is getting paid for fulltime work. Page 3 of 14 were not operating under a formal custody order. Mother testified that first she believed that Child did not want to live in Maryland because she would have to attend a new school, which Mother believed was a non-issue. Mother testified that her other children have had no trouble adjusting to their new school and have quickly made friends, leading her to believe that Child would fare the same. Mother then testified that she now thinks that Child does not want to live with her because she is more strict than Father, and Child would have more rules, more chores, and less access to electronics with Mother. Additionally, Mother testified that living in Maryland would provide Child with more “opportunities.” Mother indicated that she planned on enrolling Child in two extra- curricular programs geared toward developing leadership and communication skills. Mother and her witnesses also testified that “there is more to do” in Maryland than there is in Central Pennsylvania, but without citing any examples. Child is 14 years-old and in seventh grade at Camp Hill Middle School. Child currently goes to school in person two days and attends school virtually the rest of the week. Child stated that she would prefer for school to be in-person full time, but stated that she likes Camp Hill and has made friends. Child stated that while she is doing virtual schooling, she is normally alone, but she shows her work to Father and they discuss her grades regularly. She indicated that in addition to her school responsibilities, she has chores at Father’s residence as well, including doing the dishes, taking out the trash, cleaning her room and vacuuming. Child stated that if she does not do her chores, her Father takes away her cell phone for 24 hours. Child stated that she likes to draw in her free time. Child’s main point was that she “just wants to someone to hear her.” Child unequivocally stated that she wants to live with Father. Child gave a number of reasons for her feelings on the matter. Of primary concern was her little brother. She stated that “he needs” her and looks up to her, and that he does not have anyone else (meaning other siblings). She stated that while she is able to communicate with her sisters electronically, she cannot do the same with her brother because he is only four years- old. Child then stated that she feels more comfortable at Father’s home because she can be herself, and that it is easier for her to talk to Father than it is to talk to Mother because Mother “just shuts her down.” She also stated that Mother will not let her “be weird,” shut doors in the house, or wear tank tops. Child stated that she did not feel like she would have more opportunities in Maryland because in her opinion, Maryland is just bigger. Page 4 of 14 It is of note that all of the witnesses who testified in this matter agreed that both Mother and Father are equally fit parents. Mother and Father also seem to agree that, if it were not for the distance between their residences, they would share custody equally as they had been doing. The parties are agreeable to shared physical custody during the summer months. Each parent is seeking primary physical custody during the school year. 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. This is a rather unfortunate case in that both parents are by all accounts fit and work well together. For the previous four years before Mother’s move to Maryland, the parties enjoyed shared custody on a week on/ week off basis. Child enjoyed the benefit of her relationship with her three sisters every other week and enjoyed the benefit of the relationship with her younger brother on the odd weeks. Both parents permitted and encouraged frequent and continuing contact. Since the current custody has been in place where Father has primary custody during the school year, contact has been less frequent though the Court attributes such decline due to Child being a teenager. She has her own phone with which she can contact her sisters and/or Mother at any time. Being a teenager, the Court suspects she places a priority on communication with her own friends and the ubiquitous TikTok. This is no fault of Father. This factor is neutral. (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. There was no testimony as to this factor. This factor does not apply. (2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services). Page 5 of 14 There was no testimony as to this factor. This factor does not apply. (3) The parental duties performed by each party on behalf of the child. Each parent is capable and performs the full range of parental duties. There was some testimony to the effect of a division of duties during the four years of shared custody wherein Mother arranged for and attended most of the medical appointments. Father was slightly hesitant on regularly scheduled wellness checks, dentist, and other medical needs of Child during his recent period of primary physical custody, but the Court believes this is owed to the temporary nature of the custody and pending litigation. Father is more than capable of handling Child’s medical needs. However, both Mother and maternal grandmother expressed concerns over Father’s ability to properly handle Child’s “lady issues”, i.e. Child is a 14 year old girl who has begun to menstruate and experience the full range of hormonal “challenges.” The Court also has concerns over Father’s school supervision. As to the “lady issues,” there is some truth to the notion that Mother is more equipped to address these issues, but it is not because Mother is a mother or a female, though that does play a part. To be clear, the Court does not subscribe to the antiquated notion that only a mother can address lady issues, though one cannot escape the biological fact that mother is a female and has experienced the challenges of growing up and that even in today’s society, there is a stereotypical division of labor wherein the mother handles most of the lady issues. However, that is beside the point because in this particular case, Mother has raised four daughters, to include Child, and is well awash in the raging sea of female teenage hormones. It is only recently that Father has to fully deal with these issues, and in that, one could say he has experienced challenges as Child had to be seen by urgent care for issues “down there.” The second area of concern is Father’s supervision of Child’s virtual learning. Father has in-person employment as a rural mail carrier with the United States post Office. On days where Child attends virtual learning she oft times is left at home alone, unsupervised. This is decidedly not ideal. Child during her in camera hearing with the Court presented as extremely intelligent and self-aware. One of the reasons she prefers Father’s residence over Mother’s residence, is the freedom it affords. While in no way does the Court believe Child is running Page 6 of 14 “amok” during times she is left alone at Father’s, her grades are admittedly poor. Whether this is due to the lack of supervision or the COVID virtual experience is unclear, but it is never a good idea to leave a teenager unsupervised during the school day. It is somewhat baffling that Father does so despite the proliferation of available extended family to supervise Child. In the aggregate, this factor favors Mother. (4) The need for stability and continuity in the child's education, family life and community life. Quite frankly, Child has spent all her life in the greater Harrisburg area. Her extended family, both Mother’s and Father’s, are in the area, her friends are in the area; in essence, her life is in the area. It is not the Maryland location is “bad,” but it is a new start less the extended family and community she has built. This factor favors Father. (5) The availability of extended family. Both Father’s and Mother’s extended family are in the Harrisburg greater area. Mother does have a Church Family in her area, but for the purposes of this analysis, this factor favors Father. This factor favors Father. (6) The child's sibling relationships. Child has three sisters with Mother and one younger brother with Father with which she has spent all her life on a week on/week off basis. Mother wishes the Court to value the relationship with the sisters more because they are sisters, of similar age, and have been together for a greater period of time, the assumption being they share a greater bond. Father, on the other hand wishes the Court to place greater emphasis on the relationship with her younger brother because he is too young to effectively communicate by cellphone and a physical presence is more critical at this age. Father contends that Child could still effectively bond with her sisters because of their age and technology. The sad reality is that unfortunately one relationship will suffer more because of the custody decision. However, the Court declines to “choose” one set of siblings over the other in the context of this factor analysis. Page 7 of 14 This factor is neutral. (7) The well-reasoned preference of the child, based on the child's maturity and judgment. As alluded, Child is intelligent and insightful. She expresses a strong preference for Father’s residence. She is articulate in her preference, though whether her preference is “well-reasoned” within the meaning of statute is somewhat of a question. The thrust of her testimony seems to be that she enjoys the freedom to “be herself.” Mother’s house is stifling, has more stringent rules, and Mother is stern. At Father’s house she has her own room and a little brother. At Mother’s house, she shares a room and is one of four similarly aged sisters. In other words she shares the spotlight. At Father’s, she also has her extended family, community, and friends. She is on familiar, solid ground and can talk to Father about boys in ways she cannot talk to Mother. This testimony in many ways is expected and typical. Teenagers typically play one parent off of the other and do express a preference for the more “fun” parent. The Court also suspects and cautions that there is somewhat of a honeymoon period where Child sees no fault in Father’s living arrangement and Father is subconsciously more lenient in order to curry favor. This is also not unexpected and is not malicious. However, children need limits and structure. Father often times leaves his daughter unsupervised during the day. Child is admittedly “interested” in boys and stated as much repeatedly. Her grades are also poor. These are trying times in the pandemic environment and one must double-down - not let up. Conversely, Child’s testimony is not to be discounted merely because it is “typical.” There is value to more freedom and attention. In Mother’s household, Child is one of four similarly aged girls and may be psychologically “lost in the shuffle.” In Father’s household, she is unique and a big sister to a young brother. She is certainly bright and yearns, as all teenagers do, for independence. Ultimately, this factor favors Father. (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. Page 8 of 14 There was no significant testimony to this factor. If anything, it is Child who is manipulating the parents. This factor is neutral. (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 axiomatic that a Child needs both their parents and each parent provides mutually supporting, but different skill sets. Emotional needs include a shoulder to cry on as well as a stern voice. These two parents are indispensable for Child’s needs. 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. As with factor nine analysis above, both parents contribute to the development of Child in different, but complementary ways. Mother raises four daughters and so is perhaps more in tune with Child’s daily physical needs, whereas the greater degree of freedom Father provides allows Child to develop into an independent woman. Child is struggling educationally and both parents need to pay more attention. Ultimately, this factor is neutral. (11) The proximity of the residences of the parties. It is a detriment that parents live far enough apart that makes shared custody during the school year untenable. This factor is neutral. (12) Each party's availability to care for the child or ability to make appropriate child-care arrangements. Page 9 of 14 Mother supervises all of her children, to include Child, more closely. While there is something to be said about a degree of freedom, ultimately Child needs slightly more supervision during the school year and currently Mother is more available due to the pandemic. Post-pandemic, she would not be as available; however, the children would more often be in school. Ultimately, both parents work during the day. Father has extended family, whereas Mother has Church family. This factor in the aggregate, 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. While there is a simmering low-level conflict between the parties, they seem to be able to work fairly well together. This factor is neutral. (14) The history of drug or alcohol abuse of a party or member of a party's household. This factor is neutral/not applicable. . (15) The mental and physical condition of a party or member of a party's household. This factor is neutral/not applicable. (16) Any other relevant factor. This factor is neutral/not applicable. RELOCATION FACTORS Pursuant to 23 Pa.C.S.A. § 5337(h) In determining whether to grant a proposed relocation, the court shall consider the following factors, giving weighted consideration to those factors which affect the safety of the child: Page 10 of 14 (1) The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child's life. The parties have had shared custody for the past four years with Mother having shared custody with her three other daughters and Father having shared custody with his son. Child has lived all her life in the area and has enjoyed the benefit of her extended family in the area. To relocate would significantly impair her relationship with her Father and her extended family. This factor favors denial. (2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child. There is benefit to Mother’s position that Child has grown up all her life with her sisters. However, the “all her life” technically has been only 50% of the time, as Mother’s three other children enjoy shared custody with their father. While a move to Maryland would not be emotionally devastating, it would still be a change and a move from her family, friends, and community. This factor favors denial. (3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties. It is not possible to maintain shared custody during the school year and by necessity, one parent will suffer. This factor favors denial. (4) The child's preference, taking into consideration the age and maturity of the child. As discussed in custody factor seven analysis above, Child prefers to stay with Father. This factor favors denial. (5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party. There was no substantial testimony as to this factor. Page 11 of 14 This factor is neutral. (6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity. The Court finds Mother’s assertion that her quality of life has generally improved credible, though the improvement is marginal at best. According to the testimony, Mother’s finances improved somewhat, but the area in general offers the same opportunities to Child as the Harrisburg area. This factor favors granting. (7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity. Similar to factor six analysis above, while the financial benefit is marginal, the emotional and educational benefits are negligible. This factor is neutral. (8) The reasons and motivation of each party for seeking or opposing the relocation. There does not seem to be any nefarious intent or motivation on behalf of either party. Mother wanted to improve the quality of her and her children’s life and Father does not want to lose time with his daughter. This factor is neutral. (9) The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party. This factor is neutral/does not apply. (10) Any other factor affecting the best interest of the child. Unfortunately, Mother unilaterally moved without consent or court order as required by Section 5337. Although she informed Father of the proposed change she just assumed that her decision would naturally rule, which unfortunately is not the case. This factor favors denial. Page 12 of 14 DISCUSSION The Child Custody Act provides that, “upon petition, a court may modify a 5 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 6 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 7 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 8 a particular case, but ultimately, when a trial court orders a form of custody, the best 9 interest of the child is paramount.” In cases of relocation requiring a change in custody, we are required to examine both the custody factors and the relocation factors enumerated in Title 23. When a custodial parent seeks to relocate a child’s residence, the party must petition the court, and the court must consider the relocation factors of 23 Pa.C.S.A. § 5337(h). If the proposed relocation will result in a change in custody, the court must also consider the custody factors in 23 Pa.C.S.A. § 5328… A court should avoid ‘dissociating the issue of primary custody from the relocation,’ and should instead decide the two issues together ‘under a single umbrella of 10 best interests of the children.’ In this particular case, Mother unilaterally moved without prior consent or court order. She naturally assumed that because she is the Mother and that Child has been raised together with her sisters that her decision would have precedence. What Mother failed to realize, however, is that Child enjoyed not only her sisters for all her life, but her brother for all his life. More so, Child’s entire life is located in the Harrisburg area to include her family, Mother’s family, friends, and community. While a move may benefit 5 23 Pa.C.S. § 5338(a). 6 M.J.M. v. M.L.G., 63 A.33d 331 (Pa. Super. 2013) appeal denied 68 A.3d 909 (Pa. 2013). 7 J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)(emphasis in original). 8 Id. at 289 (citing M.J.M., 63 A.3d at 339). 9 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)). 10 S.S. v. K.F., 189 A..3d 1093, 1098 (Pa. Super. 2018)(citing A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014), D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014), and S.J.S. v. M.J.S., 76 A.3d 541, 550 (Pa. Super. 2013)). Page 13 of 14 Mother marginally it benefits Child not at all. Both locations offer similar benefits and opportunities and thus do not really “enhance” Child’s life. It seems Mother moved for no other reason than just to move. While there was some testimony that Father does not really know Child’s “lady” issues and that he leaves Child alone sometimes when he goes to work, there was no other testimony that Father was deficient. To the contrary, the parties enjoyed shared custody for the previous four years while Mother’s three other daughters enjoyed shared custody with their father. If anything, the move has exacerbated the relationship between Mother and daughter and pitted sisters against each other. Child, because she wants to stay in the area, feels obligated to support Father. Mother’s three other daughters feel obligated to support Mother. This Child needs both their parents and there is nothing more powerful for a Child to hear than, “Let me check with your Mother/Father first.” Unfortunately, this decision is more about relocation than it is parenting. Indeed, both parents are fit and de facto enjoyed shared custody for many years. Because of the move, however, one parent must have primary custody during the school year. Because the benefits of the move are marginal and Child’s entire life to date to include her brother, extended family, Mother’s family, friends, and community are located in and around Cumberland County, Father shall have primary custody during the school year, but otherwise Child shall enjoy shared custody to the maximum extent possible. BY THE COURT: Matthew P. Smith, J. Todd R. Williams, Jr., Esquire 20 N. Hanover Street, Suite 201 Carlisle, PA 17013 Raven N. Zeigler 6417 Pennsylvania Avenue, Apt. 201 Forestville, MD 20747 Page 14 of 14