HomeMy WebLinkAbout2021-00219
LINWOOD RICHARDSON, III, : THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : No. 2021-00219 CIVIL TERM
:
:
KRISTY A. TAYLOR, :
Defendant : IN CUSTODY
OPINION
Smith, J., August 5, 2021
FINDINGS
Father, Linwood Richardson, III, and Mother, Kristy Taylor, were in a relationship,
but were never married. Their union produced two children, A.A.M.R. (DOB
10/5/2011)(“A.R.”) and V.A.E.R. (DOB 5/4/2019)(“V.R.”). The parties separated in
2015, but reconciled occasionally, resulting in the birth of their second child.
Father filed a Complaint in Custody on January 15, 2021 seeking shared physical
and legal custody. Prior to that, by agreement of the parties, Mother was exercising 9
out of 14 overnights and Father was exercising 5 out of 14 overnights, corresponding to
his work schedule. Mother disagreed with equally sharing physical custody due to
Father’s difficult work schedule, and the parties could not come to an agreement at
conciliation, necessitating this hearing.
Father lives in a one-bedroom apartment in Lemoyne. He has lived there for the
past 3 years. The apartment is close to Mother’s residence and the children’s school.
During Father’s custodial periods with the children, he helps them with their school
work, they do crafts, and they go to the park. Father stated that he likes to provide the
children with “an easy-going, loving environment.”
Father works as a printing press operator for Fry Communications in
Mechanicsburg, and has been working in that capacity for 5 years. His hours are non-
traditional but consistent. In a two-week cycle, he works Wednesday through Sunday
from 8:00 a.m. to 8:00 p.m.; he is off Monday and Tuesday; then he works Wednesday
and Thursday from 8:00 a.m. to 8:00 p.m.; and then he is off Friday through Tuesday.
Father does not currently have a valid drivers’ license, as a result of a conviction
for driving under the influence. Father stated that he is well-versed in the area’s public
transit system and he walks frequently. He stated that in order to get A.R. to school, he
takes the bus, walks her there, or obtains a ride from a friend or family member. Father
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is in the process of applying for a restricted license and is eligible to obtain a fully valid
license in August 2022.
Father has family and friends that live in the area. Father’s father and sister both
live in Carlisle and provide assistance to Father if needed. Additionally, Father’s
friends, Teresa Strohm and Heidi Hock, testified that they see Father and the children
on occasion and that Father provides well for them.
Father is requesting shared physical custody on his days off, which amounts to a
2-5-5-2 schedule. On the days when Father receives custody, however, the exchanges
would occur after he gets home from work, which is around 8:30 p.m. Father is seeking
equal time because he believes that he should have an equal opportunity to parent the
children. Father stated that he performs all of the same duties that Mother does,
including preparing healthy meals and attending doctors’ appointments and
extracurricular events when he is off work. Father believes that there is more pressure
on him to provide financially, and that even though he is performing the same duties as
Mother, he is required to pay child support.
Mother lives in a 2-bedroom apartment in New Cumberland and has lived there
for 3 years. The apartment is close to A.R.’s school and several parks. During Mother’s
custodial periods, she and the children like doing crafts and watching movies. Mother
stated that she is more strict than Father, but always puts the children’s well-being first.
Mother is employed by ManorCare Camp Hill and has been working there for 3
years. Mother is also in school at Harrisburg Area Community College working to
obtain her Registered Nursing degree. The classes are all virtual, and Mother tries to
schedule them during Father’s custodial periods.
Mother has a number of family members in the area. Mother lives in the same
building as her sister. Mother’s father lives in Carlisle and her mother lives in Perry
County. Her family members see the children often.
Mother is seeking to maintain the current custody Order. Mother’s primary
concern is with Father’s work schedule necessitating late night exchanges, which would
disrupt the children’s bedtime routine, as V.R. is usually asleep by 8:30 p.m.
Additionally, Mother is concerned that Father will not exercise all of his custodial time.
Mother reported that in the last several months, Father will call her for transportation for
the children, and then relinquish custody “because she is already there.” Mother also
reported that if V.R. misses Mother, Father will call her to come pick her up. Mother
appreciates that Father calls her, but she stated she does not understand why he wants
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more custodial time when he does not fully exercise the custodial time that he has.
Ultimately, Mother believes that Father is only seeking the two additional overnight
periods to obtain a downward deviation on his child support obligation.
A.R. is 9 years-old and will be entering fourth grade at Hillside Elementary
School in the West Shore School District. Because of the limited scope of this
modification, we did not interview her for this trial. Mother reported that A.R. is creative
and likes to do arts and crafts, and she has recently begun playing soccer. Mother
reported that A.R. does well in math, reading, social studies and art.
V.R. is 2 years-old. She attends Best Friends Daycare Center during Mother’s
custodial periods. Mother reported that V.R. is a busy child and likes to learn new
things. She likes to color and learns through repetition. Mother stated that V.R. is very
attached to her sister and Mother.
By all accounts, both parents reported that they communicate well with each
other, and that they do not harbor animosity toward the other party. Both parents had
complimentary things to say about the other parent. They have even taken the children
to the zoo together as a family. The parties agree that they are both able to cooperate
with the other when it comes to parenting decisions, including holidays and vacation
time.
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 hearing was of limited focus. Both parents agree that the other is ‘fit’
within the meaning of the law. The focus was whether to increase Father’s
‘overnights’ from 5 out of 14, to 7 out of 14. This factor and the other factor
analyses will in turn focus on issues salient to the potential increase. The three
main issues identified by the Court and which will be discussed infra, are:
Father’s work schedule, transportation, and Father’s occasional declination of
custodial time.
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As to this factor, the parties seem to work well together though they do
have their tense moments. In general, both Father and Mother seem respectful
of each other and communicate often.
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.
Not applicable.
(2.1) The information set forth in section 5329.1(a) (relating to
consideration of child abuse and involvement with protective services).
Not applicable.
(3) The parental duties performed by each party on behalf of the child.
Father is quite capable of performing parental duties subject to his work
schedule, transportation issues, and occasional times where he declines
custody. The three issues are interwoven.
In general, Father and Mother communicate quite well. Occasionally on
his periods of custody, Father would call Mother to pick-up the younger child
because she was “missing Mommy.” In one sense, this is to be lauded as in
Father’s own words, “he’s not so proud to put his child’s needs in front of his.” In
another sense, this can be occasionally frustrating for Mother as she has to be
on-call and play back-up to Father.
This issue dovetails into Father’s lack of transportation and work schedule.
While Father can usually arrange rides from friends or public transportation, on
more than one occasion, such as inclement weather or an emergency situation,
Father has to rely on Mother. The children’s schools and daycare are within
walking distance of Mother, but a short ride from Father’s residence. In normal
weather and on his days off, this does not present a problem as Father can plan
accordingly. The current schedule reflects this as Father never has custody on
the mornings he has work.
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However, Father’s requested custody schedule would present at least two
work/custodial days. Father typically leaves for work at 7:30 a.m. and either
catches a ride from a friend and utilizes public transportation in order to be ready
to work by 8 a.m. If he had to take the children to school and daycare, he would
not only have to back that time up significantly, but the children would require
before school care. He does the reverse and normally arrives home by 8:30 p.m.
Again, Father typically does not have custodial days on work nights as
exchanging custody at 8:30 p.m. is unusual, especially for younger children as
there would be little to no acclimation or “unwinding” before they go to bed.
Additionally, Father requests that Mother drop the children off at his house.
While not terribly demanding, the onus would still be on Mother to pack the
children up with all their school work, get them to Father’s house, then return
home to prepare for her own day, and go to bed at 9:30 or 10:00 p.m. at the
earliest.
Lastly, the entire custody schedule is built around Father’s 5-on, 2-off, 2-
on, 5-off, 8 a.m. to 8 p.m. schedule. While it is usually in a child’s best interest to
maximize time spent with both parents, it must be balanced against an
unreasonably disruptive or onerous schedule. The current 5/14 schedule avoids
the disruptive work/school transitions, whereas the requested schedule includes
two.
This factor favors Mother.
(4) The need for stability and continuity in the child's education, family life
and community life.
Both parents provide stability for the children’s family and community life
whereas the current schedule favors Mother slightly in stability and continuity for
the children’s education.
This factor favors Mother.
(5) The availability of extended family.
Unfortunately, neither parent has extended family in close proximity enough
to provide support on a regular basis. Mother has a sister in the same apartment
complex, but she is not available for regular assistance.
This factor is neutral.
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(6) The child's sibling relationships.
Not applicable.
(7) The well-reasoned preference of the child, based on the child's maturity
and judgment.
The Court did not interview the children as the hearing was limited in
scope.
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.
No testimony as to this factor.
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.
Both parents provide nurturing relationships.
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.
The parties are generally equal in this regard. During his non-
work/custodial days, Father generally provides for the children and takes them
where they need to go. However, Mother being more organized, usually
schedules most of their appointments. Occasionally, Father will call Mother for
her to pick up V.R. because she “misses mommy.” Again, this shows great
maturity on part of Father, but presents its own dynamic.
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When Father calls Mother to pick the children up, whether at night or
because of inclement weather, or when the children do not want to walk or ride
the bus, or in general, it is of course an inconvenience to Mother, but that is
beside the point. What it really does is create a dynamic wherein the children
know they can call Mother. This in turn lowers the esteem of Father in their eyes
because it reinforces the primacy of Mother. When V.R. cries - call Mother.
When they need a ride - call Mother.
If done in an agreed upon fashion, this dynamic can be managed. Often
times in two parent households, one parent does a lot of shuttling of the children.
This is usually balanced in some fashion by the other parent and in the
aggregate, both parents are “equal” in the eyes of the children. If done in an
uncoordinated, ad-hoc fashion, however, the children will eventually absorb that
there is an imbalance of power and begin to attach primacy to one parent or the
other.
This dynamic is also present in Father’s proposed late night exchanges. It
is preferable, but not demanded, that exchanges normally occur early enough in
the afternoon or evening that children can arrive at their custodial parent’s house
and engage in their normal evening routine, be it dinner, homework, T.V., or what
have you. As proposed, with school day exchanges occurring at 8:30 at night,
Mother would be responsible to feed the Children, perhaps bathe them, have
A.R. do her homework, pack up all their accompanying accoutrement, bundle
them in the car, and deliver them to Father’s residence, whereupon they almost
immediately go to bed. Thus, the question for the Court is whether the benefit of
seeing their Father for a brief period before bed outweighs the disruption.
Ultimately, this factor favors Mother.
(11) The proximity of the residences of the parties.
Oddly enough, the close proximity of the residences in sometimes an
impediment to the custody arrangement, as discussed in the factor 10 analysis,
supra.
Otherwise, it is to the benefit of the children the parties live in close
proximity.
This factor is neutral.
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(12) Each party's availability to care for the child or ability to make
appropriate child-care arrangements.
The parties cooperate well with childcare. When both Mother and Father
work, the children are placed in professional childcare. When Father does not
work, he has custody which obviates the need for professional childcare.
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 level of frustration between the parents, but despite that, they
appear to cooperate well for the benefit of their children.
This factor is neutral.
(14) The history of drug or alcohol abuse of a party or member of a party's
household.
There was no 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.
There was no testimony as to this factor.
This factor is neutral.
(16) Any other relevant factor.
Not applicable.
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DISCUSSION
The Child Custody Act provides that, “upon petition, a court may modify a
1
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
2
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
3
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
4
a particular case, but ultimately, when a trial court orders a form of custody, the best
5
interest of the child is paramount.”
The Superior Court has held, however, that when the trial court is deciding a
“discrete and narrow issue ancillary to a materially unchallenged agreement…‘without a
doubt, \[it\] must consider a child’s best interest in ruling upon such motions. But our
statutes require neither a consideration of all sixteen factors nor a delineation of the
court’s rationale on the record unless the ruling awards custody or modifies and award
6
of custody.’”
Thankfully, the Court’s analysis does not turn on whether the parents are fit.
Indeed, both of them admit the other is fit. As it should, the analysis focuses on the best
interest of the children and ultimately, the logistics of the situation and the disruption to
the children. The current interim 5/14 custodial arrangement maximizes Father’s
custodial time to coincide with his days off and minimizes the disruption to the children.
While there is benefit to Father’s proposed 7/14 schedule in that the children see their
Father more, they only do so at the cost of upending a normal nighttime routine for what
is in actuality, only one to two hours more quality time twice a month. Father would also
have to get the Children to daycare/school two mores time a month. Though these two
days would be on Father’s days off, it would increase his reliance on public
transportation during inclement weather, his friends, or occasionally Mother.
1
23 Pa.C.S. § 5338(a).
2
M.J.M. v. M.L.G., 63 A.33d 331 (Pa. Super. 2013) appeal denied 68 A.3d 909 (Pa. 2013).
3
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)(emphasis in original).
4
Id. at 289 (citing M.J.M., 63 A.3d at 339).
5
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)).
6
S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014)(quoting M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super.
2014).
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While none of these things are insurmountable, based upon the age of the
Children, their normal routines, stability and continuity, on the balance, it is in the
children’s best interest to adopt the “5/14” interim order to maximize Father’s time while
minimizing disruptions.
By the Court,
__________________________
Matthew P. Smith, J.
Harold S. Irwin, III, Esq.
64 S. Pitt Street
Carlisle, PA 17013
Scott McPartland, Esq.
5922 Linglestown Road
Harrisburg, PA 17112
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