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HomeMy WebLinkAbout2020-06184 (2) ERIKA HOPE SMITH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 2020-6184 CIVIL ACTION LAW : MICAH AARON PARSONS, : Defendant : IN CUSTODY HYAMS, J., DECEMBER 13, 2023 I.PREAMBLE An often-used methodcourts utilize to bringparties together during adversary litigation is commonly referred to as “splitting the baby.” Even in child custody matters, this metaphor is useful to help the parentsfocus on issues that are most important to them while loosening up a bit on other issues that may not be as important. The give and take of finding middle ground is inherently more difficult in child custody matters where the heart of the issues revolve around a child’s life and well-being as opposed to monetary concerns. However, when the parents live approximately 1,300miles apart from each other, “splitting the baby” goes from difficult to impossible. Both parents are loving, caring and capable of providing a healthy environment for their child. A positive relationship with each of the parents is necessary for the subject minor child to have healthy physical, social, and emotional development. The subject minor child will begin his formal school education in the 2024/2025 academic school year, and he can no longer regularly spend several consecutive days in a row with both of his parent during the school year. Only one parent can have primary custody during the school year. In this instance, “splitting the baby” is not an option, metaphorically or literally and for that reason, the court has applied the evidence to the sixteen best interest factors and identified a physical custody schedule based on those best interest factors while maximizing the time each parent has available to be present for the subject minor child. II. BACKGROUND The Mother and Father were never married and at the time of M.P.’s birth in May of 2018, Mother had graduated high school and Father was in his senior year of high school. Father enrolled in college attending Penn State University and played football there from 2018-2020. The parties struggled to identify a custody arrangement during Father’s college years, and Father’s contact with M.P. was minimal at best.Father did not play in the 2020 college football season and took a year off to train for the upcoming NFL draft. He was primarily living in California at this time, his relationship with Mother was strained, and he did not have any contact with M.P. for much of this training period. Mother maintained contact with Father’s side of the family, specifically with paternal grandmother. However, this relationship also became strained in 2020, and visitation between M.P. and paternal relatives decreased and even ceased for a period of months. On November 4, 2020, Mother initiated this custody action while Father was still training in California. The parties attended a couple of conciliations where they agreed to a physical custody schedule that permitted Father time while he was in Harrisburg. A follow up conciliation was necessary to establish the custody schedule following the NFL draft and Father’s discovery of where he would be residing full time. In May of 2021, the parties did not agree to a physical custody schedule at conciliation and a pretrial conference schedule and custody trial schedule was issued by way of Order dated May 14, 2021. Ultimately the parties were able to agree upon a custody schedule in lieu of a trial despite the unique circumstances created because of Father’s NFL football career. On January 24, 2022, the court approved and entered the stipulated custody order that the parties continue to follow to date. Under this Order, Mother has primary physical custody and Father generally exercises one week of physical custody per month during the football season and two weeks of consecutive custody per month during the offseason. Father initiated the current round of litigation on April 18, 2023 by filing a Modification Petition. The parties also had dueling Contempt Petitions that they both agreed to withdraw on the final day of trial. Within Mother’s Contempt Petition, she requested a modification to the custody schedule such that Father have only one week of custody per month all year long regardless of the status of the football season. Father filed an Amended Modification Petition on October 5, 2023. Father now requests that the Mother move to Texas and the parties share physical custody on a 50/50 custody schedule. Alternatively, if Mother does not elect to move to the Dallas, Texas area, Father requests that he have primary physical custody of M.P. and that M.P. attend school in Dallas, TX. The parties were unable to come to an agreement on the pending Modification Petition/s at a May 2023 conciliation. A Guardian ad litem was appointed for the child as a result of the conciliation and ultimately a two day custody trial th (November 6 and November 7, 2023) was scheduled in accordance with Father’s work schedule following a status conference with counsel. The custody trial was unable to be completed during the two days set aside by the court and a third day of evidence and testimony was heard at a hearing held on December 4, 2023. III. FINDINGS A salient feature of this case is highlighted by testimony provided of a non-party witness. Father’s sister virtuously testified when describing her brother as a parent: “Micah is a young parent. He’s learning, you know. He’s trying. He’s willing… So Micah is one of those parents where it’s like he’s instilling greatness in his children by demonstrating it and also building that almost quality of life and characteristics in him like, no, you do this and this is how you be successful. If you want this, this is whatyou do.” The court agrees with the paternal aunt’s sentiment based upon the undersigned’s analysis of all the evidence presented in the numerous hours of testimony and many pages of exhibits; Father is a remarkable role model for his children. He is also a willing, eager, and more than capable parent. However, due to his current career, he simply is unable to continuously perform the day-to-day parental duties and offer the level of continuity to M.P. that has been accustomed to and will be provided by Mother. 1 The sixteen statutory best interest factors are not equal and thereby necessitate primary physical custody in favor of Mother. Mother offers a level of stability and continuity as she is almost always present and performing all the parental duties regularly. Her household offers a more consistent schedule and if the child moved to Texas with Mother residing in Pennsylvania, M.P.’s longest and most stable relationship (the one he has with his Mother), will be drastically impacted. In turn, maximizing Father’s availability to be present for his periods of partial physical custody still allows Father to be a role model for M.P. and help foster and cultivate M.P.’s values and morals. Mother has been hands on and performing all day-to-day parental duties since day one of M.P.’s life. Father has not been hands on with the same frequency or duration and that is in large part due to his occupation and distance between the parties because ofhis NFL career. This has resulted in and will continue to result in others performing parental duties for M.P. in Father’s absence due to his job requirements. Some of the very reasons that M.P. idolizes his Father and prioritizes his time at Father’s home are the same reasonsMother is in a better position toprovide a more hands on, routine 1 See best interest factors with analysis and outcome attached as Exhibit A and relocation factors with analysis and outcome attached as Exhibit B. oriented and consistent living arrangement for M.P. The Guardian ad Litem, Hannah L. White-Gibson, Esquire was appointed on May 17, 2023. She spent time in the homes of both parents and visited and observed M.P. on more than one occasion, as well as reviewing various developmental/educational reports and evaluations pertaining to M.P. The GAL prioritized the need for M.P. to experience increased stability and routine, and this premise was echoed by both parents, aswell as the educators involved with M.P. As a result, she recommends that Father’s period of custody currently disassociate from whether Father is “in season” or “off season” and simply follow M.P. in school or out of school schedule such that Father’s periods of custody be centered around when M.P. is not in school. The GAL spoke with M.P.’s counselor who has been providing therapy to M.P. since approximately December 2022 in order to assist M.P with developing healthy social and emotional skills. One of the recommendations the therapist conveyed to the GAL was that Father work to establish a better structure and routine for M.P. in his home during his periods of custody. The GAL also recommended that Mother work with the therapist to establish appropriate limit setting, expectations and positive reinforcement techniques in her home. There was much testimony provided at trial on the issue of whether there is routine for M.P. in Father’s home during his periods of custody. The GAL herself testified on this issue and explained her position on lack of routine was related to a call log Mother showed her where M.P. was calling her from a tablet or device while in Father’s home, during late hours in the evening time. The testimony provided over a three-day period from multiple witnesses did not establish a lack of routine or structure in Father’s home. It did however, demonstrate that there were times where M.P. might have been missing his Mother or anxious about being in a less than familiar home because of spending less time there. This was likely compounded by the fact Father was pushing for M.P. to sleep 2 alone in his own bed whereas Mother is more lenient about letting M.P. sleep in her bed during her more frequent custodial periods. The GAL spent some considerable time exploring M.P.’s current developmental, educational and special needs and looked to recent evaluations from the Capital Area Intermediate Unit, speech and language assessments, discussions with current and past teachers and his recent evaluation for attention deficit hyperactivity disorder. She reported that these evaluations identified M.P. has delayed communication and is eligible for support services in the area of speech and language development. He currently receives thirty (30) minutes of speech therapy at the Children’s Garden. M.P. has shown he struggles to stay focused while in larger groups, and he does much better when he is receiving one on one instruction. M.P. has a lot of energy and struggles to keep his hands to himself and was recently diagnosed with borderline ADHD. More recently, M.P. began to take ADHD medication. M.P.’s Kindergarten teacher at the Children’s Garden testified that since M.P. began the ADHD medication his attention span and ability to focus has improved vastly. Ultimately the GAL recommended that legal custody remain shared by the parents and M.P. remain in the primary custody of his Mother while being enrolled in the Cumberland Valley School District for the 2024/2025 school yearfor their half-day Kindergarten program. This will result in him attending Children’s Garden the other half of the day to supplement his school day and receive additional educational 2 Father acknowledged that while he prefers M.P. to sleep in his own bed at his age, often he would end up sleeping with paternal grandmother during Father’s periods of custody because M.P. is not comfortable sleeping alone. instruction. She did not recommend a change to the current “in season” physical custody schedule (Father to exercise one week of custody per month) during the remainder of the 2023/2024 school year. She did recommend that for the remainder of this school year but during Father’s “off season” that Father have up to fourteen (14) days of custody, and while these fourteen (14) days need not be exercised consecutively they did need to take place in the Harrisburg area. During these periods of custody, Father would need to ensure that M.P. attend his regularly scheduled activities including school, sporting events and social activities. Once the 2023/2024 school year concludes, the GAL recommended Father exercise physical custody of M.P. from the first full week following the last day of school through the first week of Father's training camp each year in order to allow M.P. to participate in the family portion of training camp. The GAL recommended Father’s periods of custody for the 2024/2025 school year when Father is "in season," should include liberal and flexible periods of custody with M.P. that are reasonable given the child's school schedule (generally holiday breaks, fall and/or spring breaks). For the remainder of 2024/2025 school year and through the summer of 2025, the GAL recommended the same “off season” in school and out of school schedule for Father as she recommended for the remainder of the 2023/2024 school year and the 2024 out of school schedule. In addition, the GAL emphasized the need for Mother to be flexible and work with the unique scheduling circumstances created byFather’s career so that the amount of time Father spends with M.P. is maximized as opposed to frustrated. This court agrees that this level of flexibility is required under the unique dynamics surrounding this custody case. This may be seen as bending over backwards to accommodate Father’s football star status and, while it is often difficult to separate what is providing Father special accommodations versus ensuring M.P. have continued contact with his Father, it is indisputable that M.P. should have frequent and continued contact with his Father because that level of contact is in M.P.’s best interest. M.P. should have a positive relationship and regular interaction with both of his parents for healthy development. It is clear and indisputable both parents love and want what is best for M.P. In a situation where the physical custody schedule simply cannot be shared, the physical custody schedule must adhere to what is in the child’s best interestwhen all best interestfactors are considered and weighed. IV.DISCUSSION The parents shall continue to share legal custody of M.P. and will now follow a physical custody schedule where M.P. remains in the primary custody of Mother while being enrolled in the Cumberland Valley School District for the 2024/2025 school year. As further detailed below, Father’s periods of partial physical custody will be structured around M.P.’s in school schedule so as not to cause significant disruption in his academic and eventual social and extra-curricular activities to include maximizing Father’s availability to exercise custody, but also maintain M.P.’s connectivity to his paternal relatives. The parties have both identified a need for M.P. to have routine and structure. This physical custody schedule offers routine and consistency while fostering a relationship with both of his parents to the extent it is physically possible. Father should maximize his off-season time during the school year to be as involved as possible with M.P. while M.P.’s younger sibling/s’ schedules are still flexible. As M.P. grows older, the current circumstances of each parent’s household will likely change and the custody schedule will need to be modified to address those changes and M.P.’s evolving best interests. It is hoped that this round of litigation concluding in a trial has taught the parents that they have the tools and ability to work collaborativelytogetherand identify what is in M.P.’s best interest as he grows up and that they can do so without court intervention. “My child arrived just the other day He came to the world in the usual way But there were planes to catch, and bills to pay He learned to walk while I was away And he was talking 'fore I knew it, and as he grew He'd say "I'm gonna be like you, dad" "You know I'm gonna be likeyou. …” – Harry Chapinand Sandra Gastin CUSTODY ORDER AND NOW this 13thday of December, 2023, after hearing in the above captioned action, a custody order in accordance with this opinion will be simultaneouslyentered. BY THE COURT, _______________ Carrie E. Hyams, J. Fawn E. Kehler, Esquire – counsel for Mother Michael E. Bertin, Esquire – counsel forFather Hannah White-Gibson, Esquire – GAL Exhibit A BEST INTEREST CUSTODY FACTORS CHART FACTOR Discussion FACTOR OUTCOME Which party is more likely to Father and Mother have had communication This Factor slightly encourage & permit frequent strugglesin the past and periods of time whenfavors Mother. & continuing contact between the communication would cease and go through the child & another party paternal grandmother. Father acknowledges he has shut down and not communicated with Mother at times. Mother has been less than flexible with Father when he asks for additional time due to special and unpredictable circumstances with his schedule. Both parties have also taken actions to encourage contact as they have acknowledged that they want the other parent involved and in the past have settled custody litigation without the need for a hearing. It has been more of an upward battle for Mother to be able to encourage and permit continuing contact because she has always been up against Father’s very stringent and restrictive football schedule whereas Father needed the continuing and frequent contact between Mother and M.P. because of this schedule and for that reason Mother’s efforts have had to be greater than Father’s in this area. The present &past abuse Father’s brother was living in Father’s Texas This Factor is Not committed by either party or household and he has a recent conviction for Applicable at this time. member of the party’s aggravated assault where victim was a minor. household, whether there is a Father testified he does not and will not allow continued risk of harm to the his brother to be unsupervised with M.P. child or an abused party & which party can better provide adequate physical safeguards & supervision of the child. The parental duties Mother does all the parental duties when the This Factor Favors performed by each party on child is in her care. As a result of Father’s Mother. behalf of the child. work schedule, there is a combination of adults performing the parental duties that does include Father, paternal grandmother and Father’s significant other. The need for stability & M.P. has had stability and continuity provided This FactorFavors continuity in the child’s by Mother with respect to his education, family Mother. education, family life & life and community life and Mother has community life. demonstrated she is capable of providing stability and continuity for M.P. having already done so for the last five years while he has been in her primary care. He has continuously attended Children’s Garden and Mother seeks to have him continue therenext year for half days while attending half day Kindergarten through Cumberland Valley School District. Father has not provided the same level of continuity for M.P., in part because he has not had primary custody, but also in part because of the uniqueness of his job and the travel involved among other things, which results in schedule changes. The availability of extended Father’s mother lives with him and M.P. is This Factor is Equal. family close with his paternal grandmother.Both of Father’ssiblings and his Uncle live in Texas. M.P. has the opportunity to see these extended relatives frequently when he is with Father. Mother lives near her sister and her own mother and father. M.P. sees his maternal relatives frequently and is very close with his maternal grandfather. M.P. also sees paternal cousins who live in Pennsylvania while with Mother. The child’s sibling Father has a daughter born in January 2023 This Factor favors relationships and a son due in March 2024. M.P. has a Father. traditional sibling relationship with his sister who resides with Father. The well-reasoned preference M.P. is not of the age and maturity to have a This Factor is Not of the child, based on the well-reasoned preferenceand fortunately for Applicable. child’s maturity & judgment the child, the parties have not asked him specifically for his preference. The attempts of a parent to There was no substantial evidence presented on This Factor is Not turn the child against the this Factor. Applicable. other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm. Which party is more likely to Both of the parents are able to provide M.P. This Factor is Equal. maintain a loving, stable, with a loving, stable, and nurturing consistent & nurturing relationship adequate for his emotional needs. relationship with the child The parent’s style of providing this to M.P. is adequate for the child's different. Father is more authoritarian, and emotional needs. Mother has a more emotion related parenting style. Neither style is wrong, and both are sufficient to address M.P.’s emotional needs. M.P.’s therapist has identified emotional regulation as a need and an area that M.P. needs tofurtherdevelopand strengthen. The therapist works with Mother on limit setting and positive reinforcementand has been discussing with Fatherthe need for more routine and stability in Father’s home. Both parents need to continue to be engaged with M.P.’s therapist regularly to discuss not only parenting techniques they can apply in their own households to better support M.P. and his emotional well-being, but also to identify strategies to ensure there is consistency between the two households and how M.P.’s emotional needs and emotional regulation concerns are being addressed. Which party is more likely to Mother oversees the child’s medical and dental This Factor Favors attend to the daily physical, appointments, therapy and educational Mother. emotional, developmental, services. This is in part due to Father’s lack of educational & special needs accessibility to the child and the location that of the child. those services are delivered. Both parents have identified a lack of routine/structure with the other parent’s household. This discrepancy is in part related to the parents having very different parenting styles. Father’s style is more rigid and having high expectations for obedience and respect. Mother’s style is more accepting and nurturing. Father believes he is better equipped to address the daily needs of M.P. because he providesstructure and disciplinewhich he feels is lacking in Mother’s household because he finds her parenting style to be more lenient. Mother emphasizes expression of emotions, however she has been the parent who attends to the daily physical, emotional, developmental,and educational needs of M.P. when he is in her care. Father would certainly ensure that these needs are being metdaily, however, due to his job he would have to rely on other caretakers such has paternal grandmother to perform a considerable portion of these duties. The proximity of the Father moved over 1,000 miles away when he This Factor favors residences of the parties was drafted into the NFL. The proximity of the Mother. residences of the parties is one of the most complicating factors in this case. Each party's availability to Father’s availabilityto care forthe child is This Factor is Equal. care for the child or ability to impacted by his job, but he uses paternal make appropriate child-care grandmother and/or other appropriate arrangements. caretakers for childcare. If necessary due to unavailability, Mother has access to appropriate caretakers. The level of conflict between Despitebeing young parents and having had to This Factor is Equal. the parties & the willingness navigate a long-distanceco-parenting & ability of the parties to relationship, the level of conflict is relatively cooperate with one another. low and the willingness to want to work A party's effort to protect a together is relatively high. Any conflict is child from abuse by another primarily the result of communication misfires party is not evidence of related to their different parenting and unwillingness or inability to communication styles as well as the lack of cooperate with that party ability for face-to-face discussions. The history of drug or alcohol No evidence was presented on this Factor.This Factor is Not abuse of a party or member Applicable. of a party's household The mental & physical The current members of each parent’s This Factor is Equal. condition of a party or household and the physical condition of each member of a party's parent’s home are appropriate. household Any other relevant factor The applicable Relocation Factors were See Relocation Factor analyzed as one of Father’s requests is primary Chart. custody that would cause a change in the residence of the child which significantly impairs the ability of Mother to exercise custodial rights. Exhibit B RELOCATION FACTOR CHART FACTOR Discussion FACTOR OUTCOME The nature, quality, extent of M.P. spent the first three years of his life living with This Factor Favors involvement and duration of Mother in Cumberland County with minimal Mother and no the child's relationship with involvement from Father. Father’s involvement and relocation. the party proposing to his periods of physical custody increased relocate and with the significantly beginning in January 2022, but Mother nonrelocating party, siblings has still maintained primary custody for the last 22 and other significant persons months. M.P. has special relationships with relatives in the child's life. in both locations. The age, developmental M.P. is a vibrant, healthy and active five-year-old This Factor is stage, needs of the child and who loves sports. He is currently receiving speech Nuetral as to the likely impact the therapy and play therapy while in Mother’s custody. relocation. relocation will have on the He has had some recent behaviors commonly child's physical, educational associated with his also recent ADHD diagnosis and emotional development, (inability to focus, not keeping hands to himself). taking into consideration any The parents agree he will be entering a Kindergarten special needs of the child. curriculum next year despite currently attending Kindergarten at Children’s Garden in Cumberland County. M.P. is young and just beginning his educational journey. The relocation would result in a change of services such as speech therapy and leaving some of his peers. However, these services and peers would likely change slightly anyway because he would be starting at a new school. The feasibility of preserving Financially the preservation of the relationship This Factor Favors the relationship between the between Mother and M.P. would not be an issue as Mother and no nonrelocating party and the Father should be able to cover the costs of this relocation. child through suitable aspect. However, logistically it is very difficult to custody arrangements, preserve the relationship in such a way that M.P. is considering the logistics and having continued contacts with not only Mother but financial circumstances of the also his extended family in Cumberland County. If parties. M.P. is attending school in Texas he is limited in how frequently he can fly back and forth without a detrimental impact on his educational and physical well-being. The child's preference, taking M.P. is not of the age and maturity to have a well-This Factor is Not into consideration the age and reasoned preference and fortunately for the child, Applicable as to maturity of the child. the parties have not asked him specifically for his relocation. preference. Whether there is an There was no evidence of either parent engaging in This Factor is Not established pattern of conduct this type of behavior. Applicable as to of either party to promote or relocation. thwart the relationship of the child and the other party. Whether the relocation will This Factor is not applicable as Father has been This Factor is Not enhance the general quality living in Texas for some time.Father moved from Applicable as to of life for the party seeking Pennsylvania to Texas after he was drafted by the relocation. the relocation, including, but Dallas Cowboys, resulting in financial benefits for not limited to, financial or Father. This custody decision will not impact the emotional benefit or location of Father’s residence and therefore the educational opportunity. Factor is inapplicable. Whether the relocation will There was evidence presented as to the opportunities This Factor is enhance the general quality for M.P. in Texas and although Father is of the Nuetral as to of life for the child, opinion that there are better opportunities for M.P. relocation. including, but not limited to, in Texas, the evidence did not support any financial or emotional benefit significant educational or emotional benefits that or educational opportunity. could not be obtained in Cumberland County. The reasons and motivation The reasons and motivations of both parents on this This Factor is of each party for seeking or issue are understandable. Each parent wants to be Nuetral as to opposing the relocation. able to see and spend as much quality time as relocation. possible with their child who they love. The present and past abuse There was no evidence on this factor. This Factor is Not committed by a party or Applicable as to member of the party's relocation. household and whether there is a continued risk of harm to the child or an abused party. Any other factor affecting the See Best Interest Factor Analysis Chart. See Best Interest best interest of the child. Factor Analysis Chart.