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HomeMy WebLinkAbout90-2973 CivilWILLIAM T. PHILLIPY, IV, Plaintiff VS. VASILIKI S. PHILLIPY, Defendant .IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - CUSTODY 2973 CIVIL 1990 IN RE: OPINION PURSUANT TO RULE 1925 This case has most recently come before us on the plaintiff's petition for a modification of the existing custody order and for primary physical custody. After hearing, we found that the existing custody order was in the best interests of the child, William T. Phillipy V. Therefore, the plaintiff's petition was denied. This appeal followed. The parties, William T. Phillipy IV (Bill) and Vasiliky S. Phillipy (Vee), were married on September 15, 1985. They are the parents of one minor child, William T. "Billy" Phillipy V, bom June 28, 1991. Before'Billy was bom, the parties had separated. They were eventually divorced on April 4, 1996. The parties had been granted shared legal custody of Billy, with the father having partial physical custody every other weekend from Friday evening until Monday morning and each Wednesday evening until Thursday morning. The father filed the instant petition requesting a modification of this order, attempting to gain primary physical custody of Billy. Because we found that the benefits of a change in the existing custody order do not outweigh those of the status quo, that there is a great bond between mother and son, that the mother has been the primary care giver of the child, that the mother will assure continued contact between the child and his father, that the current custody arrangement is serving the child well, and that the existing custody order is otherwise in the best interests of the child, the plaintiff's 2973 CIVIL 1990 petition was denied. The standard for deciding custody matters in Pennsylvania is clear: The court must decide what is in the best interests of the child. It is well-settled in Pennsylvania that custody and visitation matters between contending parents are to be decided on the basis of the judicially determined best interests of the child on a case by case basis, considering all factors which legitimately impact upon the child's physical, intellectual, moral, and spiritual well being. Zummo v. Zummo, 394 Pa. Super. 30, 54, 574 A.2d 1130, 1142 (1990) (citing In Re Davis, 502 Pa. 110, 465 A.2d 614 (1983)). The court's opinion must be complete, comprehensive, and contain a thorough analysis of the record. Arnold v. Arnold, 286 Pa. Super. 171,174, 428 A.2d 627, 628 (1981). However, the opinion in support of this order may still be concise, "as long as it contains a reference to the evidence, states the court's reasoning and not simply conclusions, and analyzes the demeanor and credibility of those witnesses upon whose testimony the court relied." Cady v. Weber, 317 Pa. Super. 481,488, 464 A.2d 423,427 (1983). Bill Phillipy and his new wife, Patricia, have two daughters, Madeline, age 3, and Elizabeth, age 5. Bill is employed by the Commonwealth of Pennsylvania and has worked for the environmental hearing board for eleven years. He and his family currently live in Camp Hill in a restored farm house, where Billy has his own room. Billy enjoys staying at his father's home and gets along well with his step-sisters 'and Patricia. Vee Phillipy currently resides in her father's home with her uncle, George Touloumes. Vee works at the Mt. Holly Springs Inn which is operated by her brother. Billy also has his own 2 2973 CIVIL 1990 room at his mother's home and enjoys staying there. The child at the center of this custody dispute, Billy Phillipy, is six years old and has just finished the first grade at Mt. Holly Springs Elementary School. He has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), and currently receives medication to treat his condition. Billy, as well as his parents, ~vere interviewed by Arnold T. Shienvold, Ph.D. Dr. Shienvold also conducted psychological testing, observed parent/child interactions, and observed the homes of both parties. After performing this custody evaluation, he made recommendations regarding the most appropriate custodial arrangements for Billy. His recommendation was that Billy be placed in the primary physical custody of his father. We believe, however, that the current custody arrangement is serving Billy well and is in his best interests. While this Court has carefully considered Dr. Shienvold's recommendations, we are not obligated to delegate to him the responsibility of making its decision. Rinehimer v. Rinehimer, 336 Pa. Super. 446, 453, 485 A.2d 1166, 1169 (1984). Billy is a child with ADHD, and therefore needs a great deal of structure and predictability in his life. According to Dr. Shienvold: Children with ADHD are particularly vulnerable to inconsistencies in the way they are treated. They respond best to repetitious structure in which all of the expectations are easily predictable. Reinforcement, both negatively and positive needs to be consistently applied and discipline needs to be instructive, not punitive. Custody Evaluation at 11. We believe that Billy's mother is quite capable of giving Billy the amount of structure 3 2973 CIVIL 1990 that is needed in his life. Ms. Tammy Nailor, an employee of Union Services Consultants and a behavioral therapist and counselor for Billy, has indicated that Vee is capable of giving Billy the support he needs. Vee sees herself as being somewhat of a "softie," which means that she probably gives in more often to Billy when it comes to setting limits for his behavior. The end result of this is that Vee experiences more behavioral problems in her setting. It should be noted, however, that Tammy Nailor felt that Vee was just as capable and knowledgeable of the behavioral interventions necessary for Billy as Bill. Custody Evaluation at 12. Additionally, Audrey Aarhus, a clinical social worker who testified at trial, believes that the parents can work together. Ms. Aarus had not reviewed Dr. Shienvold's custody evaluation, but met with Vee numerous times and with Vee and Bill together. At trial she was asked what kind of an impact a change in custody might have on Billy. A. I think a lot of times when we're doing this kind of custody heating ... sometimes we don't think as far beyond the.., change as we may need to think, and particularly in this situation where you have a child with ADHD ... [t]hat's just to say that a lot of times we don't fully appreciate what the change is going to mean to any of us until it actually occurs. Trial Transcript, January 5, 1998 at 42. Dr. Shienvold also expressed concerns in his initial custody evaluation over what kind of an impact a change in the current custody arrangement might have on Billy. 2973 CIVIL 1990 Bill significantly underestimates the potential emotional upheaval that a change in custodial placement will have for Billy. There is no question that Billy is more strongly bonded emotionally to his mother ... To abruptly change Billy's residence and his primary psychological bond is likely to result in significant emotional upheaval. Custody Evaluation at 12. In his follow up evaluation, Dr. Shienvold again stated that Billy is very emotionally bonded to his mother and also that Billy would rather remain in his mother's custody. Billy remains attached to his mother. He indicated that he would prefer to live at his mother's home in spite of the fact that his behavior has improved at his father's. Custody Evaluation #2 at 2. Another important development that affects our decision is that George Touloumes, Billy's great uncle, now lives with Vee and Billy. We believe that he will provide the support and stability that Billy needs in his mother's home. Another significant change since the initial custody evaluation is that .Mr. George Touloumes, Billy's great uncle, is living with Vee and Billy in their home at Mt. Holly ... given the problems with the management of Billy's behavior and the custodial conflict, he has decided to live permanently with his niece. Mr. Touloumes indicates that he wants to provide a strong, nurturing male model for Billy in his niece's home. Id. at 1. We believe that there are significant risks in altering the current custody arrangement. In 2973 CIVIL 1990 the meantime, Billy's behavior has continued to improve while this custody order has been in place, and Billy has become used to this schedule. Due to the fact that Billy does not cope well with change combined with his strong emotional attachment to his mother, we do not believe a change in custody would be in Billy's best interests at this time. July /~, 1998 Bradley Griffie, Esquire For the Plaintiff Rudy D. Weeks, Esquire For the Defendant :rlm Ke~,fHess, J. 6