HomeMy WebLinkAbout2018-06883
NATHAN A. CARROLL, : THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : No. 2018-06883 CIVIL TERM
:
JENNIFER R. CARROLL, :
Defendant : CUSTODY
OPINION
Smith, J., May 6, 2021
FINDINGS
Father, Nathan Carroll, and Mother, Jennifer Carroll, were married on June 6,
2009. Their union produced four children, H.P.C. (DOB 10/14/2009), C.T.C. (DOB
7/9/2011), D.B.C. (DOB 4/5/2015), and M.J.C. (DOB 1/18/2017). The parties separated
in July of 2018, and Father filed a Complaint in Divorce and Custody on July 23, 2018.
The parties’ separation was tumultuous. Mother moved out of the marital home
into a townhouse in Mechanicsburg with the children. Father remained in the marital
home in Carlisle to prepare it for sale. During the course of the divorce and custody
proceedings, the parties exchanged scathing text messages and emails, some of which
1
were produced by Father at trial. In said text messages, Mother repeatedly used foul
language and threatened to tell the children of Father’s behavior, specifically with regard
to his refusal to sign a standard financial waiver which would have enabled Mother to
purchase a new home. Father has made a habit of recording custody exchanges with
2
Mother “just in case.” Father also accused Mother of molesting C.T.C., which Father
shared with his therapist in October 2019, resulting in a Cumberland County Children
3
and Youth Services investigation. The accusations were ultimately unfounded. Along
the same line, Father called Pennsylvania State Police to report that Mother’s father had
an unregistered firearm, and called the Cumberland County District Attorney’s Office to
report that Mother’s mother assaulted him by throwing a water bottle at him. Despite all
the animosity, eventually the parties were able to settle their differences, and a final
decree in divorce was entered on June 25, 2020.
1
See Father’s Exhibits 4, 7, 10, 12, 13, and 15. Notably, all of these text messages were from before the
parties’ conciliation in December 2019, where the parties agreed to the 2-2-3 schedule. There were no
text messages from the last year, and Father reported that Mother has been on “good behavior” for the
past six months.
2
See Father’s Exhibits 16 and 17.
3
See Father’s Exhibit 11. See also further discussions at footnote 16, page 10, page 15, and page 16.
Page 1 of 19
The parties initially stipulated to share custody on an alternating weekly basis.
The parties gradually moved to a 2-2-3 schedule, which was adopted into the December
30, 2019 Order. The parties have been following the 2-2-3 schedule since that date. At
the time of the most recent Order, Father was living in Carlisle and working in
Mechanicsburg, and Mother was both living and working in Mechanicsburg. H.P.C. and
C.T.C. were attending school at Sporting Hill Elementary in the Cumberland Valley
School District, and D.B.C. and M.J.C. were attending full time daycare programs at
Kiddie Academy in Mechanicsburg.
On September 11, 2020, Father filed a petition to modify the custody schedule.
Father stated that because of the COVID-19 Pandemic, he has been working primarily
from his home in Carlisle, and it has become difficult to transport the children to and
from school in Mechanicsburg on his custodial days. Father proposed sending the
children to school in the Carlisle School District instead. Father suggested keeping the
2-2-3 schedule, and merely changing the children’s school district, or in the alternative,
Father suggested that he should be awarded primary custody of the children during the
school year.
The parties were unable to come to an agreement at the conciliation hearing on
October 20, 2020, and requested a hearing. Also at that time, Katie Maxwell, Esquire
was appointed as guardian ad litem.
Father lives in a four-bedroom home in Carlisle. H.P.C. and M.J.C. have their
own bedrooms, and C.T.C. and D.B.C. share a bedroom. The house is in downtown
Carlisle, within walking distance to the Carlisle YMCA, where the family has a
membership. Father has enrolled the children in various activities around Carlisle, and
has served as a soccer coach for them. C.T.C. and D.B.C. play soccer, and H.P.C. is
enrolled in competitive cheerleading. Father states that the children all have friends in
Carlisle.
Father’s father (Paternal Grandfather) lives next door to Father and watches the
children if needed. Father’s mother (Paternal Grandmother) also lives nearby and the
children see her frequently as well. Father reported that if he is awarded primary
physical custody, either of his parents can watch the children after school as they both
are “planning” to retire in the near future.
Father is employed by the U.S. Department of the Navy as a civilian employee at
Mechanicsburg Naval Support Activity, and has been there for 13 years. Father is also
retired from the Air National Guard. Father’s office is less than 1 mile from Mother’s
home and Sporting Hill Elementary, and approximately 3 miles from Kiddie Academy,
but because of the COVID-19 Pandemic, Father is teleworking. Father produced a
Page 2 of 19
4
document at trial that states that he will be teleworking until at least June 2021. Father
is under the impression that after June, he will continue teleworking for at least 4 days a
week, but did not produce any documentary evidence reflecting that decision. Father
reported that he has a flexible start time, and that as long as he works 8 hours a day, he
can start at any time between 6:00 am and 9:00 am.
Father is in counseling and does have a history of mental health issues, including
a voluntary hospital commitment for medication management. Father is taking Adderall
by prescription, and the parties stipulated at trial that Father’s mental health has been
stable since 2016.
Mother lives in a four-bedroom home in Mechanicsburg. Similarly to Father’s
home, H.P.C. and M.J.C. have their own bedrooms, and C.T.C. and D.B.C. share a
bedroom. Mother’s home has a fenced-in backyard, complete with a basketball hoop,
tetherball pole, and trampoline. The children have a rabbit and a dog as pets with
Mother.
Mother’s neighborhood has many other children that the children play with,
although the children play most of their organized sports in Carlisle. Mother stated that
Father just signs them up for activities and she acquiesces to it. Mother testified that
C.T.C. would prefer to play sports in Mechanicsburg because he does not know the
children on his team in Carlisle. Mother did state, however, that H.P.C. must continue
her cheer program in Carlisle because Mechanicsburg does not have a comparable
program. Mother stated that she is primarily responsible for scheduling the children’s
medical and dental appointments, but Father has been participating in them recently.
Mother works at Capital Area Intermediate Unit (“I.U.”) as a special education
teacher and has been working in that capacity since February 2021. The I.U. is located
less than a mile from Mother’s home, and she usually walks there. Mother must be at
work at 8:00 a.m. because her class starts at 8:15. She works until 3:30 p.m. Mother
took the job at the I.U. and left her job as director of Kiddie Academy because of the
better work hours and time off in the summer.
H.P.C. is the parties’ oldest daughter. She is 11 years-old and in fourth grade at
Sporting Hill Elementary. H.P.C. has a learning disability in reading, and an
5
individualized educational plan (“I.E.P.”) for reading and math. H.P.C. was interviewed
for the purposes of this hearing. She reported that she knows that Father wants her to
switch schools. She also reported that she likes her school, but wishes that she had
more friends, as most of her cheer friends go to Carlisle schools. She ultimately said
that she does not want the schedule to change and that she does not mind the driving in
the mornings.
4
See Father’s Exhibit 1.
5
See Father’s Exhibit 6.
Page 3 of 19
C.T.C. is the parties’ second child and oldest son. He is 9 years-old and is in
third grade at Sporting Hill Elementary. He was also interviewed for the purposes of this
hearing. C.T.C. reported that he loves both parents and he has friends at both houses.
He stated that he knows that Father wants him to change schools, but he likes his
current school, particularly math and science classes. C.T.C. reported that he would
like to play soccer with his friends from school as well. C.T.C. also stated that he likes
the current schedule and that he does not mind the driving because it gives him time to
relax.
D.B.C. is the parties’ third child and youngest son. He recently turned 6 years-
old and attends private kindergarten through Kiddie Academy. Because of his age, he
was not interviewed. Father reports that D.B.C. has received several reports of bad
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behavior at Kiddie Academy, particularly biting. Mother noted that these reports are
not out of the ordinary behavior for a child of D.B.C.’s age.
M.J.C. is the parties’ fourth child and youngest daughter. She is 4 years-old and
attends a daycare program at Kiddie Academy, which she has been attending since
infancy. Given her young age, she was not interviewed for the purposes of this hearing.
H.P.C. and C.T.C. are in counseling with Dana Thompson, a counselor located in
New Cumberland. They are currently seeing her once or twice a month. Both parents
are in agreement that the children need to be in counseling, as both have had bouts of
anxiety. Father, however, believes that the children should attend a counselor that is
7
located closer to Carlisle.
Father’s main reason for seeking a change in custody concerns his work
schedule. On Father’s custodial days, Father has to drive the children from his home in
Carlisle to Mechanicsburg. First, he drops off D.B.C. and M.J.C. at Kiddie Academy
between 7:00 and 7:30 a.m. Then he drives 3 miles to Mother’s house so that H.P.C.
and C.T.C. can catch the school bus between 8:10 and 8:20 a.m. Father stated that if
he were to go into his office, he would be able to be there by 8:30 a.m., but because he
has to drive back to Carlisle to work from home, he does not start working until around
9:00 a.m. Father stated that he then has to leave his home to be at the bus stop by
3:00 p.m. to get H.P.C. and C.T.C., after which he gets the younger children from Kiddie
Academy. Father stated that because that time frame does not permit him to work for a
full 8 hour day, he is required to take time off, and sometimes he has to attend virtual
meetings while he is driving.
Father stated that Mother is unwilling to help him make the schedule easier.
Father had asked if he could drop off the children at Mother’s house on his custodial
mornings so that H.P.C. and C.T.C. could catch the bus at Mother’s home, and then
Mother could take D.B.C. and M.J.C. to Kiddie Academy, as Mother was working there
at the time. Father stated that Mother refused to do so, but at the most recent
6
See Father’s Exhibit 3.
7
See Father’s Exhibit 18.
Page 4 of 19
conciliation conference, Mother did permit Father to allow H.P.C. and C.T.C. to catch
the bus at her house on Father’s custodial mornings in lieu of him taking them directly to
school. Father indicated that the schedule is having an effect on the children, offering a
series of emails from H.P.C.’s school counselor that she often worries about being late
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to school.
Mother states that it is not that she does not want to help Father in the mornings;
it is that she physically cannot help Father in the mornings. Because of Mother’s rigid
work schedule, she needs assistance getting H.P.C. and C.T.C. on and off the school
bus. Mother’s mother (Maternal Grandmother) lives on the same street as Mother, and
assists Mother in the mornings getting the children on the bus. Mother’s father
(Paternal Grandfather) lives in Harrisburg and watches H.P.C. and C.T.C. after school
every day until Mother gets home from work. Even though she is able to assist,
Maternal Grandmother has to take time off from work to get the children on the bus, and
is only available to help on Mother’s custodial days. If Father were to drop off the
children to catch the bus at Mother’s house that would require Maternal Grandmother to
take more time off from work every week.
Father testified that it was always the parties’ intention for their children to attend
the Carlisle School District. During the parties’ marriage, they first lived in
Mechanicsburg, opting to move to Carlisle in 2015. H.P.C. attended first and second
grade at Crestview Elementary in the Carlisle School District, and C.T.C. attended
kindergarten there. Father no longer lives in the Crestview Elementary district, so if
they were to be enrolled in the Carlisle School District, they would attend Moreland
Elementary instead. Father stated that Carlisle has much more to offer the children and
that Mechanicsburg is just an industrial area that is “not as nice.” Father stated that it is
“black and white” that Carlisle is better than Mechanicsburg.
Mother stated that while the children started out in the Carlisle School District,
she specifically moved to Cumberland Valley School District because H.P.C. needed
some special education services, and Mother believes that the special education
program in Carlisle was not adequate for H.P.C.’s needs. Mother believes Father was
in agreement with that assessment, but noted that she has been H.P.C.’s main
advocate in getting an I.E.P. Mother remarked that she has been to every meeting with
the school, and that Father has been “involved to a lesser extent,” having only been to
three out of eight meetings. Mother testified that the children are settled in their school
and thriving, and it would be to their detriment to pull them out.
Additionally, Father stated the cost of D.B.C. and M.J.C.’s daycare is too
expensive. D.B.C. currently attends private kindergarten classes through Kiddie
Academy, and M.J.C. attends Kiddie Academy for childcare. This is the last year that
D.B.C. will attend a daycare program, as he will enroll in public school with the other
children for the 2021-2022 school year. M.J.C. will attend a daycare program for one
8
See Father’s Exhibit 5.
Page 5 of 19
more year, and is anticipated to enroll in public school with the other children beginning
with the 2022-2023 school year.
Prior to February 2021, Mother was the director at Kiddie Academy, and the
children attended daycare there at no cost. Since Mother resigned her position,
however, the parties have had to pay full price for daycare at Kiddie Academy. Father
reports that the cost of Kiddie Academy for D.B.C. and M.J.C. is $1900 per month, and
that he cannot afford to keep paying that cost. Father reports that even when D.B.C.
enrolls in public school in the fall of 2021, the cost for M.J.C. alone will be $200 per
week (approximately $867 per month). Father proposes that, beginning with the 2021-
2022 school year, M.J.C. should enroll in the kindergarten program with Dickinson
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Children’s Center in Carlisle, which he reports is cheaper than Kiddie Academy.
Father testified that M.J.C. does not have friends at Kiddie Academy and does not have
any particularly strong relationship with the staff members, despite attending their
daycare program since birth. Father believes this plan will save the parties $1000 per
month.
Mother understands the costs of the daycare program, but states that the two
younger children are thriving there as well. Mother emphasized that the children have
always gone to Kiddie Academy. Mother stated that M.J.C. has bonded with the staff
there and has a lot of friends. The cost for a full day of daycare for M.J.C. next school
year is $240 per week, which Mother noted is only a savings of $7 per week from
Dickinson Children’s Center, and reasoned that the $1000 per month savings will simply
come from D.B.C. no longer attending a daycare program beginning in the fall of 2021,
10
and instead attending public school.
Father’s remaining concerns stem from his belief that Mother is neglecting the
children. Father first suggested that C.T.C. has lasting anxiety from being left alone by
Mother while he was sleeping to go talk to a realtor. Mother testified in response that
she told C.T.C. she was going outside to get H.P.C. at the bus stop, which was 2
houses up the street. C.T.C. fell asleep and forgot where Mother was, but as soon as
he went outside, he saw her. Mother testified to a similar incident in which Father drove
his truck around to the back of his house while C.T.C. was napping. C.T.C. woke up,
looked outside and did not see Father’s truck, after which he ran to the neighbor’s
house and told the neighbor he was alone.
Father also testified that at a custody exchange, Mother allowed the children to
walk around outside a busy truck stop while she talked on her cell phone. Father video
11
recorded that incident. Mother testified in response that she had told Father that she
9
See Father’s Exhibit 22, which reports that the cost of Dickinson Children’s Center is $233.00 per week.
10
Mother did note, however, that if M.J.C. does the pre-kindergarten program again next school year, the
cost for a full day of daycare will be $260 per week. If M.J.C. only does the kindergarten program and
does not utilize the full-day daycare services, then the cost is $200 per week.
11
See Father’s Exhibit 16.
Page 6 of 19
needed to be at an appointment by 4:00 p.m. Father agreed to pick up the children at
3:30. Father did not arrive at the custody exchange until 3:55, and there was some
confusion on where the custody exchange was to be, which is why the children were out
of the car.
Father also recorded an incident where he took H.P.C. to Mother’s home before
school to get a change of clothing, and Mother stood outside her home yelling at Father
12
about being there. Mother testified in response that she had an appointment in York
early that morning, and that if Father was going to drop the children off, he needed to do
so by 7:00 a.m. Father did not call Mother to tell her that he was coming; he just arrived
at her house at 7:20. Mother reported that she did not know why Father was there and
he would not tell her what was happening.
Father also believes that Mother’s home is unfit for the children, citing an incident
in which he was exercising physical custody of the children at Mother’s home. Father
testified that on the day before a business trip, he wanted to end his custodial time a
day early so that he would not have to wake the children up early in the morning to drop
them off before his flight. Mother told Father that she had plans that evening, but that
Father could bring the children to her home, put them to bed there, and stay with them
13
until Mother returned home. While Mother was out, Father texted Mother to inform
her that the home smelled like mold and that there was dog feces on the floor. He also
asked Mother why she only had junk food in the home for the children to eat. Mother
responded back that there was no mold in the home, as she had just had it inspected at
the time of purchase, but that Father was free to leave with the children if he did not like
being there. The text messages devolved into swearing and name calling, and Mother
14
told Father to take the children and leave her house. Father testified that it was
apparent to him that Mother was intoxicated. Mother testified that she was not
intoxicated, and that she was working at a fundraiser for H.P.C.’s cheer team. Father
called Hampden Township Police to report that he believed that Mother was intoxicated
and there may be an altercation when she got home. Mother also called Hampden
Township Police when she was on her way home to report that Father was in her home
and that there may be an altercation when she arrived there.
In sum, Father testified that he does not believe that the children are in danger
with Mother, just that she is neglectful and selfish, and that she is more concerned with
her own life than what is in the best interests of the children. Father does not believe
that he needs to change any of his behaviors.
Mother admitted to her contentious text messages with Father during the course
of the parties’ separation and divorce, but noted that the text messages submitted by
12
See Father’s Exhibit 17.
13
Father testified that Mother went to a concert with her paramour. Mother testified that she was working
at a cheerleading function to support H.P.C.’s cheerleading team.
14
See Father’s Exhibit 15.
Page 7 of 19
Father were reactionary. Mother stated that since the parties’ divorce and marital
property issues were resolved in March of 2020, the tension between the parties has
eased. Mother finds it helpful now not to respond to Father right away, allowing herself
to “cool down” before responding. She stated that the parties are now able to share
photos and text messages regarding the children without incident. Mother stated that
she is supportive of attending co-parenting counseling and is in individualized therapy
15
herself.
Mother believes that the shared custody arrangement should continue and that
both she and Father are equally fit to care for the children. Mother believes, however, if
the Court determines that the schedule is too hectic for the children, that she should
have primary custody and that the children should remain in Cumberland Valley School
District. Mother testified that she has always been responsible for the primary care of
the children, including making all of the children’s dental and medical appointments,
although Father has more recently been involved in taking the children to some
appointments.
Katie Maxwell, Esquire was appointed to be the children’s guardian ad litem.
She reported that she spoke with both parents, H.P.C., C.T.C., Dana Thompson, and
H.P.C.’s teacher at Sporting Hill Elementary. Ms. Maxwell testified that the children like
Sporting Hill and that they have good relationships with their teachers and friends there.
H.P.C.’s teacher reported that she has friends and behaves in a socially appropriate
manner. Based on her conversations with school personnel, Ms. Maxwell
recommended against the children changing schools, particularly H.P.C., as she is
progressing will with her I.E.P., and that both children are thriving in school.
Ms. Maxwell reported that Ms. Thompson, the children’s therapist, stated that
H.P.C. would not do well if she changed schools, and Carlisle School District does not
compare well to Cumberland Valley School District in terms of their special education
programs. Ms. Thompson also reported that she is concerned that Father is painting a
“manipulative” picture of Mother and that he is passive-aggressive toward her. Ms.
Thompson believes that this has resulted in the children being reluctant to talk about
Father to her because they are afraid what they say will get back to him.
Ms. Maxwell reported that the children enjoy the drive time on Father’s custodial
days. They view it as “down time.” She did, however, state that dropping the children
off at Mother’s house in lieu of taking them directly to school is problematic for the
children as it creates an extra stop in the morning.
Ms. Maxwell recommended that it is in the best interest of the children that the
parties share physical custody and that the children remain enrolled in Sporting Hill
15
Father asserted that Mother refused to attend co-parenting counseling when he asked her about it via
text message on October 25, 2019. October 25, 2019 was also the day that a CYS caseworker arrived at
Mother’s home to interview her and the children about Father’s allegation that Mother had sexually
assaulted C.T.C. See Father’s Exhibit 12.
Page 8 of 19
Elementary. She recommended that if the parties cannot work out the issues related to
transporting the children on Father’s custodial days, then Mother should be granted
primary physical custody during the school year. She also recommended that Father
transport the children directly to school and pick them up from school. She did not have
a recommendation as to a daycare program for M.J.C.
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 not necessarily an unusual case, but a case where the parents
operate on two levels. On a basic level, the parents cooperate fairly well and by
necessity, permit and encourage frequent and continuing contact by virtue of a
shared 2-2-3 schedule involving four children. On another level, the parents
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submit each other to varying degrees of indignities.
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 are no substantiated allegations of abuse.
This factor is neutral.
(2.1) The information set forth in section 5329.1(a) (relating to
consideration of child abuse and involvement with protective services).
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For example, Father has filmed multiple custody exchanges for what the Court can only assume are
“gotcha” moments to be used later in litigation; he deliberately and systematically insulted Mother’s
residence after Mother allowed him into the residence by himself to put the children to sleep so he could
leave early on a business trip; he then preemptively called police and accused Mother of being
intoxicated in case she later came home and made a scene after he insulted her; he reported to
Pennsylvania State Police that Maternal Grandfather possessed an illegal weapon; and he also accused
Mother of molesting their son years after the alleged incident and after agreeing to a shared custody
schedule. Conversely, Mother seems to delight in calling Father all manner of vulgarities using terms
such as, “fuck off” and “eat a bag of dicks.”
Page 9 of 19
Father recounts a “traumatic” incident from years ago when Mother and
Father were married that he walked into a scene wherein Mother and young
C.T.C. had either just taken a bath or shower, were naked, and Mother was on
the floor touching C.T.C.’s penis. At the time, he did not think enough of it to
either address it with Mother, report to Children and Youth Services or the police,
or tell anyone about it. It was only years later and during therapy that he
mentioned it and the therapist felt obligated to report to Cumberland County
Children and Youth Services. Mother for her part testified that she has no idea
what Father was talking about, but that she, as a Mother, would sometimes clean
her son’s foreskin. The incident was reported on October 25, 2019 and closed
as unfounded on November 18, 2019.
This factor is neutral.
(3) The parental duties performed by each party on behalf of the child.
The parties enjoy a shared custody schedule currently and the duties are,
in the aggregate, fairly evenly split though Mother seems to schedule and
preform slightly more of the children’s medical/school appointments and the like.
This factor is neutral.
(4) The need for stability and continuity in the child's education, family life
and community life.
The children enjoy a fairly stable, if not hectic life right now. The parents
currently operate on a 2-2-3 schedule. Father in one breath professes to want to
maintain that schedule, and just change the children’s school district. In the next
breath however, he seems to realize that at best, a change in school district
would necessitate the same amount of driving, just in the opposite direction, and
at worst, Mother, because of her work schedule, would not be able to maintain
the current schedule. Therefore, Father would de facto have primary custody
during the school week.
The choice for the need for stability and continuity in the children’s
education, family, and community life then becomes one of shared custody
versus primary custody. Interestingly and very revealing, is that Father
adamantly states the constant driving is too much for children and is harming
them. Thus, the only solution is for one parent to have primary custody during
Page 10 of 19
the school week – that parent being him. However, when queried by the Court
that if such is the case, would it not be easier to keep the children in their current
school district and award primary custody to Mother, Father stated that it would
not be in the children’s best interest for them to spend less time with their Father.
The irony of this argument eludes him. In essence, the children’s chaotic
schedule and constant travelling is so detrimental that it demands one parent
have primary custody, but only if that parent is him. However, there is nothing so
special about Father’s educational, family, and community environment that
favors a traumatic shift in school districts or even more traumatic shift in custody.
17
Both school districts are similar; parents’ residences are wonderful,
neighborhoods are nice, extended family is nearby, and childcare costs are
similar. If anything, stability and continuity would militate against changing
school districts.
With the choice being between maintaining a shared custody arrangement
and one in which one parent would have primary custody during the school
week, the factor currently favors stability and continuity, that is, Mother.
(5) The availability of extended family.
Paternal Grandfather lives behind Father and Paternal Grandmother lives in
Carlisle as well. Maternal Grandmother lives on the same street as Mother.
Maternal Grandfather lives in Harrisburg, but is present at Mother’s house every
day to receive the children off the bus.
This factor is neutral.
(6) The child's sibling relationships.
Neither parent has children by another person. There is no contemplation
of separating the siblings.
This factor is neutral.
(7) The well-reasoned preference of the child, based on the child's maturity
and judgment.
17
H.P.C. was held back a grade in the Carlisle School District. One of the reasons for the move to
Cumberland Valley School District was to give her a fresh start. She also has an I.E.P. and is receiving
support through Cumberland Valley School District.
Page 11 of 19
The two older children who were interviewed were reticent to speak
negatively about either parent although it was abundantly clear they could feel
the animosity between the parents. They did express the general feeling that
they “liked things as they were” and did not mind the driving.
This factor favors Mother.
(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.
Despite the level of animosity between the parents, there does not seem
to be any active attempts to turn the children against the other parent. Rather,
the children are caught in the crossfire during flare-ups, such as filming or
inappropriate words during exchanges.
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.
There are two levels to this factor’s analysis: a base one, and a nuanced
one. The base level will be addressed here; the nuanced one will be addressed
in the factor 13 analysis, below. At the base level, these parents provide equally
for the children’s emotional needs in their own way. Father enrolls the children in
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various sport’s activities; Mother tends to be more active with the medical,
dental, and educational needs. Each parent is nurturing, neither parent is cold or
distant.
At the base level, 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.
18
Mainly in the Carlisle Area.
Page 12 of 19
Although Father is quite capable of providing for the daily needs of the
children, Mother addresses the bulk of the medical, dental, and educational
19
needs.
This factor favors Mother.
(11) The proximity of the residences of the parties.
The proximity of the residences, not only to each other but to various key
locations such as grandparents, schools, and therapists, is a key factor.
Currently, Father lives in Carlisle, Mother in Mechanicsburg. Father’s work abuts
the children’s schools in Mechanicsburg and is close to Mother’s residence.
Mother’s residence is very close to both the school and her work in
Mechanicsburg.
Father works at the Navy Depot and works from 8:30 or 9:00 a.m. to 5 p.m.
Mother works from 8:00 a.m. to 3:30 p.m. The children catch the bus at 8:15 or
8:20 a.m. and get off the bus around 3:15 or 3:20 p.m.
Father proposes a change in schools primarily because the 30 minute drive
each way is “too much for the children.” On his custodial days, especially during
the pandemic, he would have to drive the kids to Mechanicsburg, drive back
home to work from home, and then drive back to Mechanicsburg to pick them up
and back home. This is between 40 and 60 minutes of driving time for the
children and double for him. The Court is empathetic. However, he is asking the
Court to reverse the situation for Mother, except it would be neigh impossible for
Mother to comply. In order for her to make it to work by 8:00 a.m. she would
have to leave the house no later than 6:45 or 7:00 a.m. to drop the kids off at
Father’s residence by 7:30 a.m. Father, or someone else, would have to watch
the children until 8:00 or 8:15 a.m. when they start school. Father would then
work from home or drive to work in Mechanicsburg to be at work by 8:30 or 9:00
a.m.
In Father’s scenario, the children would be waking up at least an hour and a
half earlier on Mother’s custodial time. In Mother’s scenario, Father could drop
the kids off at school and head directly into work when physically working at the
Navy Depot. Father realizes in his scenario that the driving would be the same
for Mother coupled with the children waking up earlier which rather exacerbates
19
Mother testified that Father attended approximately 3 out 8 I.E.P. meetings and 1 or 2 medical/dental
appointments out of “10 plus.”
Page 13 of 19
the situation instead of alleviating it, hence his request for primary custody during
the school week. Again however, the driving is only detrimental when applied to
him. It would not, he states, be in the children’s best interest to have less time
with their Father. The converse is perfectly acceptable however.
This factor favors Mother.
(12) Each party's availability to care for the child or ability to make
appropriate child-care arrangements.
Both parties have similar childcare arrangements and similar extended
family situations in case of exigencies. As both parents work, the youngest child
would need childcare during the work day. Father presented an alternate
childcare facility as superior, but in reality, they are almost identically priced and
have similar amenities.
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.
As a general rule, a parent connects with their children in their own way.
This is not unusual. Every human has their strengths and weaknesses. In a two-
parent household, the parents tend to both offset and support each other, trading
roles as the situation dictates. In a split household, one of two things
philosophically happen: either the parents attempt to constitute two entirely
separate parents that are all things at all times to the children, or the parents
realize this is impossible and settle into a ‘new normal’ where the parents both
reap the rewards and share the burden of parenthood according to their
capabilities.
In the former, parents are penalized for not going to every doctor
appointment or every school event while in the latter, the parents hold each other
up as persons of mutual respect and admiration. The former do not respect each
other’s time, capabilities, and opinions; the latter bank on it.
This is a situation of the former. On a basic level, the parties cooperate
with each other and provide for all the needs of the children. They have to for the
Page 14 of 19
sheer logistical complexity of having four children. On a nuanced level however,
the virulent animosity and flagrant disregard for even basic human courtesy so
pervades the relationship that it cannot help but to infect the children.
Father is constantly on the attack, Mother on the defense. To be unjustly
accused of something as unspeakable and horrific as molesting your own child is
utterly unconscionable. Only Father truly knows if it was justified, but the
accusation combined with the unsubstantiated report to the State Police about an
alleged unregistered firearm, combined with threatening Maternal Grandmother
with police for a thrown water bottle, combined with the constant filming of
custody exchanges, combined with the text based insults of Mother’s residence,
combined with the false report of Mother being intoxicated, tend to demonstrate a
pattern of questionable conduct and dubious motives. The point, however, is not
so much to chastise Father for his conduct, but to illuminate for him Mother’s
natural reaction and the consequences therefrom.
Conversely, Mother feels so entitled and so outraged that she has
reduced Father to a punchline. She feels comfortable in Court smirking, looking
directly at Father, and saying without hint of modesty, “...and that’s why I said
‘fuck off’ and ‘eat a bag of dicks.’” Her body language screams volumes. Father
has been dehumanized and delegitimized. He is to be barely tolerated.
All of this cannot help but to infect the children. Father claims the children
do not know he is filming the exchanges. Such sentiment is fanciful. If Mother
acts the way she does on the stand in Court, presumably putting her best foot
forward, the Court wonders what her body language is during face to face
interactions.
This level conflict is a detriment to both parties and therefore in the
aggregate, 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.
Page 15 of 19
Father voluntarily committed himself for medication management in 2015.
As of 2016, Father has been mentally stable and there is no evidence to suggest
otherwise.
This factor is neutral.
(16) Any other relevant factor.
It cannot be overstated that Father accused Mother of molesting their son.
As discussed previously, only Father knows if the accusation was truly justified.
However, in addition to the natural action – reaction – counter-action cycle this
caused, there is also the law of unintended consequences. Father is
dangerously close to presenting the Court with a dilemma. If the accusation is
true, the Court should really award Father with sole legal and physical custody in
order to protect the children, or, if false, the Court should really award Mother
with sole legal and physical custody in order to protect the children because the
false accusation is so heinous and insidious that it demonstrates the lengths to
which Father would go to poison the relationship and destroy Mother.
The Court finds the accusation demonstrably false. Father was not
concerned at the time of the incident, did not address it with Mother, did not
report it to law enforcement, and only mentioned it to his therapist after
separation and during the pendency of contentious litigation. In fact, during the
hearing, it was mentioned almost as an aside. If Father was truly concerned, it
would be a) at least mentioned in his pleadings and b) be the central allegation.
Paradoxically, the saving grace is that it was only one of a litany of
unsubstantiated accusations and dubious actions. Mother’s attitude is one of “par
for the course,” and the allegation is ultimately lost in the white noise of litigation.
Therefore, it is still in the best interest of the children that they still have a
relationship with both their parents.
This factor favors Mother.
DISCUSSION
The Child Custody Act provides that, “upon petition, a court may modify a
20
custody order to serve the best interest of the child.” It is within the trial court’s
20
23 Pa.C.S. § 5338(a).
Page 16 of 19
purview as finder of fact to determine which enumerated best interest factors are most
21
salient 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
22
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
23
a particular case, but ultimately, when a trial court orders a form of custody, the best
24
interest of the child is paramount.”
Father ultimately presents a claim that deserves consideration – the driving is
excessive and unduly prejudices him. He defuses his argument, however, with contrary
logic and allegations of bad parenting. The core argument, properly constructed, is that
the excessive driving takes place on his watch, the children grow accustomed to him as
the “driving parent,” they then begin to view Mother’s house as the primary household,
and therefore begin to view Mother as the primary parent, and Father as ancillary.
Thus, it is not in the children’s best interest to view one parent as primary and the other
as secondary. This claim has some merit.
He presents contrary logic, however, in that the situation would be reversed for
Mother. Further, if the situation were reversed it would be almost untenable for Mother
to comply and the children would have to wake at least an hour and a half earlier. Thus,
the Court would most likely have to award Father primary custody during the school
week. When queried whether Mother should have primary custody instead, he
emphatically stated it would not be in children’s best interest to spend less time with
their Father. Perhaps because of the obvious irony, Father then asserts that the
environment in Carlisle is of such an obvious advantage that it more than offsets
Mother’s loss of time in a best interest analysis. He then alleges bad parenting to
further convince the Court.
He does not.
Carlisle is not of such an obvious advantage that would offset the crushing loss
of a previously shared custody arrangement. The school districts are similar public
school institutions with a variety of programs. The children, however, are ensconced in
Cumberland Valley School District and one child has an I.E.P. Further, the children
switched school districts in order to obtain a “fresh start” when one child was to be held
back a grade. Switching school districts now would also mean switching the cohort of
21
M.J.M. v. M.L.G., 63 A.33d 331 (Pa. Super. 2013) appeal denied 68 A.3d 909 (Pa. 2013).
22
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)(emphasis in original).
23
Id. at 289 (citing M.J.M., 63 A.3d at 339).
24
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 17 of 19
children with which they will grow and learn. The parents’ physical environment and
support system are similar as well – Father has his father adjacent, whereas Mother’s
mother is down the street. Father also has his mother that may be able to help
occasionally, whereas Mother has her father that assists almost daily. Childcare would
be a necessity in both cases and are similarly priced.
The shared custody agreement has been in place for since the parties’
separation in July 2018. The children changed school districts for a fresh start. They
have grown accustomed to two households and depend on both parents. Both parents
provide for the needs of children. Both the therapist, through the G.A.L., and the G.A.L.
herself recommend against a change in schools and the concomitant change in
custody. A change in schools, no less a change in custody would be an unduly
traumatic turn.
The question then becomes how best to preserve shared custody while
addressing Father’s concerns. The G.A.L. made an interesting observation that
currently Father is dropping the children off at Mother’s residence and then Mother or
Maternal Grandmother is placing them on the bus. The parents were doing this to
nominally accommodate Father’s schedule, but the G.A.L. recommends Father drop the
kids off directly at school. The Court agrees in that although the change was made to
accommodate Father, it tends to reinforce Father as the “transporter” and Mother’s
residence as the primary residence. If Father were to drop the kids directly off at
school, it would lessen tension with Mother and would serve to reinforce Father’s
primacy during his custodial time.
Another observation of note is the children’s sporting activities in Carlisle.
Although Mother intimated that Father unilaterally signed the children up for activities in
the Carlisle area in order to inconvenience Mother, the fact that some of the sporting
activities are located in Carlisle has a beneficial effect. It more evenly distributes driving
in that Mother now has to drive to Carlisle upon occasion and it highlights the fact
Father’s residence is not a “back-up” residence and can be the focus for some activities.
Both parents have to shuttle and both parents’ residences are the focal point for
different things.
Last, is the current 2-2-3 schedule. Both parents report some difficulty with
timing, childcare coverage, and employer flexibility. Perhaps a 2-2-5-5 schedule would
add some stability for planning purposes as the parents’ two days during the week
would remain the same. This would assist in drop off/pick-ups and sporting event
planning.
Ultimately, there is no reasonable way to fully eliminate Father’s drive save for
disrupting shared custody. This, the Court will not do as it is not in the children’s best
interest to do so. While the drive is certainly more burdensome on Father, set days may
provide for better planning.
Page 18 of 19
Father’s request for a change in school districts and/or a change in custody is
denied. However, current custody will be modified to a 2-2-5-5 schedule and to direct
drop-offs at school.
By the Court,
__________________________
Matthew P. Smith, J.
Rebecca R. Hughes, Esquire
354 Alexander Spring Road, Suite 1
Carlisle, PA 17015-7451
Mark F. Bayley, Esquire
17 W. South Street
Carlisle, PA 17013
Page 19 of 19