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HomeMy WebLinkAbout97-1039 CivilJOHN G. MILAKOVIC, Plaintiff VS. SHARON LYNN CRITZER/ MILAKOVIC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION 97-1039 CIVIL IN RE: OPINION PURSUANT TO RULE 1925 In this case the plaintiff, John G. Milakovic, has appealed from our most recent order granting shared legal and physical custody of the child of the parties. The order appealed from modified the situation which existed theretofore; namely, that the father had more time with the child than the mother. The parties were married on December 4, 1986. They are the parents of one minor child, Anastasia L. Milakovic, bom June 27, 1987. The parties were separated in March of 1997 when the defendant, Sharon Milakovic, moved from the marital residence located at 460 North 25th Street in camp Hill, Cumberland County, Pennsylvania. In anticipation of the parties' separation, the plaintiff obtained an emergency temporary custody order granting him primary physical custody of the child. Thereafter, Anastasia, or "Annie" as she is called, was in the custody of her mother every other weekend and on Tuesday and Thursday evenings. This remained the situation throughout 1997. In the summertime, however, the parties shared custody of Annie by alternating one week periods. The effect of our order, entered at the beginning of this year, is that the week on/week off pattern of custody in place during the summer of 1998 will continue during the ensuing school year and thereafter. In other words, effective in September of 1998, the existing arrangement 97-1039 CIVIL will be modified so as to provide for shared physical as well as legal custody of Anastasia. Our order does provide that in the event the parties cannot otherwise agree, Anastasia will remain enrolled in the Camp Hill School District.I There is no presumption for or against joint custody. However, many courts in Pennsylvania have recognized the value of joint physical custody and/or legal custody. Since there is no presumption, the courts must decide what is physically, intellectually, and spiritually best for the child on a case by case basis. Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (1990). However, in connection with the order, there must be a "complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court's ultimate decision." Arnold v. Arnold, 286 Pa. Super. 171,428 A.2d 627, 628 (1981). The legislature has stated this in its Declaration of Public Policy at 23 Pa. C.S.A. §5301. The General Assembly declares that it is the public policy of this Commonwealth, when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents after a separation, or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents and continuing contact of the child or children with grandparents when a parent is deceased, divorced or separated. Hill. ~She is happily situated there and her elementary education has been enitrely in Camp 2 97-1039 CIVIL That Pennsylvania courts have both the power and the obligation to consider shared custody arrangements was made clear in the case of In Re: Wesley J. K., 299 Pa. Super. 504, 445 A.2d 1243 (1982). Since that time, our appellate courts have upheld shared custody arrangements and, in many cases, have found that the lower courts erred in failing to enter such orders. See Smith v. Smith, 307 Pa. Super. 544, 453 A.2d 1020 (1990) (lower court erred in modifying shared custody arrangement because the father planned to move approximately 120 miles away); Murphey v. Hatala, 350 Pa. Super. 433,504 A.2d 917 (1986) (trial court's award of sole physical custody was not based on competent evidence which, actually, supported award of shared custody, even though voluntary shared custody plan had failed); Andrews v. Andrews, 411 Pa. Super. 286, 601 A.2d 352 (1992) (lower court erred in reducing the former husband's joint physical custody to a lesser partial custody schedule because of the father's alleged manipulative behavior). As set out in the case of In the interest of Wesley J. K., supra, 445 A.2d at 1248, there is a fourfold test in determining the suitability of shared custody: namely, "that 1) both parents are 'fit;' 2) both desire continuing involvement with their child; 3) both parents are seen by the child as sources of security and love; and 4) both parents are able to communicate and cooperate in promoting the child's best interest .... "Smith v. Smith, supra, 453 A.2d at 1023. These criteria are met in this case. In addition, in keeping with the following factual conclusions, we are satisfied that the best interests of Annie will be served by a joint custody arrangement. John Milakovic works as an attorney in Harrisburg. He has a steady income although he 3 97-1039 CIVIL does owe a significant amount of back taxes to the federal, state and local governments. He is resolving his tax debt by making monthly payments. He occupies the marital dwelling which is located in Camp Hill borough. While the home has a leaky roof, it is quite habitable. Annie has her own room and seems very comfortable there. Mr. Milakovic is very involved with his daughter both in and out of school. He assures that her homework is completed and helps with various school projects. He also encourages Annie to play sports, particularly softball, and is also involved in a YMCA-sponsored father-daughter group. He and Annie have a strong and close relationship. Additionally, Mr. Milakovic's parents are available to take care of Annie while he is at work and have been doing so since Ms. Milakovic-Critzer moved out of the marital residence. Sharon Critzer desires to spend more time with her daughter. When she moved out' of the marital residence, she rented an apartment and obtained employment at a clothing store. She has adequate facilities to take care of Annie and is attempting to structure her work schedule so that she will have time off from work during those periods when she has custody of Annie. Like the father, Ms. Critzer has been very involved with Annie in her activities both in and out of school. She was a volunteer at Annie's school and has encouraged Annie's interest in both art and music. She has visited Annie during her school'lunch hours. Ms. Critzer has adequate arrangements for child care which include care by a family which has provided child care in the past. Annie's relationship with her mother is as close as her relationship with her father. Annie has indicated that she wants to spend time with both her mother and father and would like a weekly custody 4 97-1039 CIVIL arrangement. She does not seem to prefer one parent over the other. The relationship between John and Sharon is obviously strained. Their chief difficulties with the current custody arrangement, however, revolve around who should have Annie when the mother is off from work. We believe this situation can be largely ameliorated with a regular weekly change in custody. In the meantime, we have no reason to believe that the involvement of the parents in Annie's schooling will be any different than it was before. While there will continue to be occasional disagreements between the parties, we are satisfied that they will, in the long run, be subsumed by their love of their child. June ~ 1998 Charles Beckley, Esquire For the Plaintiff Ruby Weeks, Esquire For the Defendant Kevin A: Hess, J. / :rim