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HomeMy WebLinkAbout2023-09454 THILIP KUMAR RAVILLA, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff: v. : No. 2023-09454 Civil Term : KEERTHY PULIME, : CIVIL ACTION- LAW Defendant : IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Hyams, J., June 19, 2024 – In this custody case, where Father filed a Complaint on November 8, 2023 seeking shared legal custody and shared physical custody of one minor child, J.R., Father has appealed the award of custody. Both parents were self-represented throughout the entirety of the 1 proceedings which resulted in the Order issued on April 15, 2024 that is now on appeal. On January 9, 2024, the parties attended conciliation which was rescheduled to this later date so that 2 the Final Protection From Abuse (PFA) hearing involving the parties could be held prior to conciliation. The parties did not reach an agreement at conciliation and the conciliator’s report summarized the position of the parties and outcome of conciliation. The parties had been married in India in 2021 and eventually moved to the United States. Following the initiation of a PFAaction in the state of Washington, Mother left to live with her sister in Pennsylvania. Father then moved to Texas. After not seeing the child for several months, Father came to Pennsylvania on December 9, 2023. At that time, there was an 1 Plaintiff retained counsel on May 1, 2024 for this appeal. 2 On January 3, 2024, a Final PFA Order was entered for a three-year term in which Mother was the Plaintiff and Father was the Defendant. This Final PFA Order was entered following a hearing where both Mother and Father testified. The child was not declared a protected party in the Final PFA Order and while the Final PFA Order granted Mother temporary custody and Father no visitation or custodial rights with the minor child, J.R., it further specified that this custody provision would remain until the parties attended their January 9, 2024 custody conciliation and any order out of the custody court would supersede the custody provision of the Final PFA Order. interaction between the parties at Mother’s residence that resulted in her filing a second PFA action. On February 2, 2024, Mother filed a Modification Petition but within the Petition requested relocation of the child to India and alleged that her visa was expiring on September 18, 2024. Custody hearings were held on March 14, 2024 and April 9, 2024. On April 15, 2024, the court issued a decision and order which included an analysis of the sixteen best interest factors and the eleven relocation factors, which was based on the evidence presented at the hearings. The April 15, 2024 Order grants Mother’s relocation request to India. Mother was provided sole legal custody, but requires her to provide prompt notification to Father via electronic communication of all events and major educational and medical decisions. Mother was provided primary physical custody and Father’s partial physical custody was a minimum of ten (10) hours per week with an agreed upon supervisor. The physical custody schedule was set to take effect instantly, but if Mother relocated to India, the same physical custody schedule would apply only if Father traveled to India. The parties were directed to have civil and peaceful communications with each other, and the custody order could be amended upon mutual agreement of the parties in writing. On May 14, 2024, Father filed his Notice of Appeal along with his Statement of Errors Complained of on Appeal. Father identified the following errors: 1) The trial court erred and/or abused its discretion by entering into a Custody Order that was tantamount to termination of parental rights without providing due process as required under 42 Pa.C.S § 6351 and 23 Pa.C.S § 2511. 2) The trial court erred and/or abused its discretion by granting Mother sole legal custody, and limiting Father's physical custody to ten (10) hours of supervised custody per week, without considering the risk of a de facto abduction of the minor child, to a country that is not a member of the HAGUE convention, such that Father will have no realistic and effective way to stay in touch with the child, or even to know of the child's health, safety, and well-being. 3) The trial court erred and/or abused its discretion with regard to its analysis of child custody factor number three (23 Pa. C.S. §5328(a)(3)), regarding the parental duties performed by each party, because the Court failed to recognize and account for the fact that Father was prejudiced by Mother's unilaterally taking the minor child away from him, thereby not allowing him the opportunity to perform parental duties with regard to the minor child. 4) The trial court erred and/or abused its discretion with regard to its analysis of the child custody factor number four ((23 Pa. C.S. §5328(a)(4)), regarding the need for stability and continuity in the child's life, because the Court failed to recognize and account for the fact that Father was prejudiced by Mother's unilaterally taking the minor child away from him, effectively removing Father from the child's life, and thereby illicitly tilting stability and continuity for the child in her favor. 5) The trial court erred and/or abused its discretion by giving undue weight to the temporary PFA Order issued in the state of Washington in February of 2023, which order was not subjected to timely due process, but which order did, effectively, lead to the subsequent PFA Order in Pennsylvania. 6) The trial court erred and/or abused its discretion by way of its analysis of relocation factor number three (23 Pa. C.S. §5337(h)(3)), regarding preservation of the relationship between Father and child because, as set forth herein above, the order enter by the Court is tantamount to termination of Father's parental rights, and the Order deprives Father of any realistic and effective means or opportunity to stay in touch with the child, or even to know of the child's health, safety, and well-being. 7) The trial court erred and/or abused its discretion in that it failed to set a timeframe, or establish a future date on which Mother could relocate with the child to India, such that Mother left the jurisdiction immediately after the trial court order was entered, and presently, pending the instant appeal, Mother has already relocated with the minor child to India, thereby effectively absenting herself from these proceedings, and also removing the child from any realistic or effective contact/communication with Father. Discussion The subject Order was accompanied by an in-depth analysis of the best interest factorsas 3 well as the relocation factors. Therefore, this Court will just briefly respond to the errors raised by Father. 3 A true and correct copy of the court’s April 15, 2024 Order and Analysis is attached hereto. 1. Father’s first error identifies the custody order entered as being “tantamount to termination of parental rights without due process.” The subject order provides clear rights for Father including his ability to have weekly visitation with his child if he is in India. In addition, Mother is directed to promptly communicate all major educational and medical decisions as well as events to Father by way of electronic communication. An order terminating parental rights is the equivalent of ending the parent/child relationship as if the child has died. See, Kimock v. Jones, 47 A.3d 850, 855 (Pa. Super 2012). Nothing in the subject order is tantamount to forever severing the parent/child relationship. Quite the opposite, as Father has the right to have weekly visitation with the child should he chose to travel to, or reside in, India where he is maintains citizenship. Father will continue to receive important updates and information regarding his child as Mother is required to promptly inform him of all major legal decisions. The custody ordered entered was based on the evidence presented as analyzed against the custody factors and relocation factors. 2. Next, Father argues the subject order was entered without considering the risk of a de facto abduction of the minor child, to a country that is not a member of the HAGUE convention, such that Father will have no realistic and effective way to stay in touch with the child, or even to know of the child's health, safety, and well-being. The subject order entered granted Mother’s relocation request to India and thus, Mother cannot abduct the child. The custody order did provide a realistic way for Father to keep in touch with the child when he is able to travel to India and the order requires Mother to keep Father apprised of all major educational, medical decisions and events in the child’s life. 3. Father claims that this court erred with regard to its analysis of child custody factor number three (23 Pa. C.S. §5328(a)(3)), regarding the parental duties performed by each party, because the Court failed to recognize and account for the fact that Father was prejudiced by Mother's unilaterally taking the minor child away from him, thereby not allowing him the opportunity to perform parental duties with regard to the minor child. Motherprovided credible testimony that she left the state of Washington to move to Pennsylvania with the only relative in the United States that would support her following domestic abuse she endured at the hands of Father. Mother had no other choice but to move and as such she did not unilaterally take the child away from Father. Father admitted he committed domestic violence on Mother during his testimony (Father admitted to striking the Mother in the face hard enough to split open her face resulting in injury and bleeding). Father’s claim that he did not suffer any injuries, but his striking Mother in the face was an act of self-defense, was not credited. Following the domestic assault on Mother, Father was incarcerated for a period of five days and could no longer reside with Mother as a result of a protective order that was in place. Father failed to pay the rent where Mother was living resulting in her having to leave the residence. Mother does not speak English and has not had any consistent source of income. She was completely reliant on the Father for financial support as well as navigating in a community where she did not speak the native language. Once this support system was no longer available to her because she required a protection order from that support system, Mother’s only choice was to leave Washington and move to Pennsylvania to stay with her sister who does speak English and could assist her. Despite knowing that Mother had moved, Father chose to take an employmentposition in Texas and move there instead of moving closer to where his child was residing. Father also acknowledged that he withheld his address and other contact information with the Mother, and although he wanted her to work with him on their marital differences he wanted to do so on his terms. Father’s own actions and conduct left the Mother with no option but to move to the only available support system she had left within the United States. It was Father’s course of conduct that resulted in him being unable to perform any parental duties for his child for almost a year. 4. Father claims the same error as immediately above, but with respect to child custody factor number four ((23 Pa. C.S. §5328(a)(4)), regarding the need for stability and continuity in the child's life. As stated above, the Mother did not unilaterally take his child away from him, but rather, Father’s course of conduct of committing domestic violence on the Mother, being incarcerated and withdrawing support from the Mother, gave Mother no choice but to flee to Pennsylvania for safety. Father also failed to properly communicate his whereabouts upon moving to Texas. All these things within Father’s control resulted in the lack of stability he provided for his child. 5. Father claims the court erred by giving undue weight to the temporary PFA Order issued in the state of Washington in February of 2023, which was not subjected to timely due process, but did, effectively, lead to the subsequent PFA Order in Pennsylvania. The process used in Washington for obtaining a protection order was not at issue and therefore, the court did not give it undue weight when deciding the custody case. The court did give weight to Father admitting that he struck Mother so hard in the face with an open hand that he caused her facial injury and bleeding. The Father’s testimony that he acted in self-defense during an altercation where he suffered no injuries combined with the stature of Mother and the stature of Father, was not credible. It is this incident that occurred in Washington and resulted in Father being incarcerated for domestic violence. 6. Father finds error with the trial court’s analysis of relocation factor number three (23 Pa. C.S. §5337(h)(3)), regarding preservation of the relationship between Father and child because, as stated in his previous error, he believes the order entered is tantamount to termination of Father's parental rights, and deprives Father of any realistic and effective means or opportunity to stay in touch with the child, or even to know of the child's health, safety, and well-being.In addition to the previously identified reasons that the order is not tantamount to forever severing the parent/child relationship, when applying that same relocation factor to the Mother, based on Father’s request to relocate the child to Texas fifty percent of the time, there would be no meaningful way to preserve the relationship between Mother and child. Mother’s Visa would no longer permit her to remain in the United States as a result of Father initiating a divorce proceeding. She would be returning to India. Mother had been the sole caretaker for the child for well over a year due to a litany of events and these events were all triggered by Father’s conduct. (Washington PFA, Father’s incarceration, Mother’s fleeing to Pennsylvania due to lack of supports, Father’s move to Texas, Pennsylvania PFA); events that were triggered by Father’s conduct. At the time the custody decision was rendered, there was little relationship between the Father and child left to preserve as Father was living in Texas and had minimal supervised visitation. On the other hand, if Father relocated the child to Texas, the child would lose the only primary caretaker he knew. 7.Finally, Father identifies error with the court’s failureto set a timeframe, or establish a future date on which Mother could relocate with the child to India, such that Mother left the jurisdiction immediately after the trial court order was entered, and presently, pending the instant appeal, Mother has already relocated with the minor child to India. Mother made it clear and Father did not dispute that her Visa was expiring on September 18, 2024. The best interest factors and relocation factors favored Mother relocating with the child to India. If the court had issued a timeframe or future date that would have permitted Father to take an appeal and receive a decision on the appeal, Mother would have been forced to leave her child behind in the United States and return to India, which would have effectively denied her relocation request that was demonstrated to be in the best interests of the child. Despite that this is a children’s fast track appeal, it will likely not be decided prior to Mother having to return to India in order to be in compliance with immigration laws. For the reasons stated above, as well as those laid out in the attached order and analysis, the instant appeal should be denied. BY THE COURT: Carrie E. Hyams, J.