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HomeMy WebLinkAbout98-5825 CIVILCAROL A. ABY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 98-5825 CIVIL IN CUSTODY IN RE: OPINION PURSUANT TO RULE 1925 In this case, the defendant, Eric A. Aby, has appealed from our order of September 27, That order changed the existing custody order in this case, essentially ratifying a custody ERIC A. ABY, Defendant 2002. schedule which the parties had put in place by oral agreement. The matter came before the court on Mr. Aby's petition to modify custody by granting him primary physical custody. The child who is the subject of these proceedings is Kailey Aby, born September 27, 1996. Our September 27th order provides for a shared arrangement with the father having custody from Saturday at 2:00 p.m. until Tuesday at 5:30 p.m. and also during the late afternoon hours after school. The order further permits the mother to retain Kailey for one weekend each month. In his statement of matters complained of on appeal, the defendant contends that our failure to give him more time with Kailey was against the substantial weight of the evidence, particularly since a psychologist, Pauline Wallin, Ph.D., had recommended the father have primary physical custody. Hearing in this case was held on September 25 and 26, 2002. The first witness to testify was Pauline Wallin, Ph.D. She has appeared as an expert custody evaluator in numerous cases in Cumberland County. She testified concerning her observations of the parents with Kailey. Dr. Wallin observed that Mrs. Aby was warmer towards the child and played more easily. Mr. Aby was more focused and seemed to have more authority over the child. Dr. Wallin explored the past family history of both parents and their current relationships, much of which was 98-5825 CIVIL unremarkable. In the end, Dr. Wallin recommended that legal custody of Kailey be shared. She recommended that, during the school year, physical custody of Kailey be in the custody of her father. The mother would have one overnight during the week and every other weekend. She based her recommendation, in part, on a perceived need of Kailey for stability, although she could point to no particular complaint the child was having in that regard. On cross-examination, Dr. Wallin agreed that Kailey is well mannered, affectionate and secure, and easily separates from her parents. She agreed that the mother's play with Kailey was more interactive than the father's and that the interchange between mother and daughter is "quiet and natural." In fact, it is clear from Dr. Wallin's testimony that Kailey is deeply bonded with her mother. Dr. Wallin also disclosed that Kailey has an extremely good relationship with her mother's new significant other, Mark Hess. In the end, while we found many of Dr. Wallin's observations helpful, we do not agree with the defendant that they support the conclusion that he should have primary physical custody. The petitioner/defendant then testified. It is clear from the testimony that the custody arrangements, earlier agreed upon, had been made to accommodate the work schedules of the parties. They allow for frequent contact with both parents and avoid the situation where Kailey must be placed in daycare. This arrangement gives the mother almost no contact on weekends which is why we modified the arrangement to give the mother at least one weekend until Sunday at 4:00 p.m. Mr. Aby's testimony on direct consisted of a jeremiad concerning the mother's parenting shortcomings. It included a contention that the mother allowed the child to be bitten by a dog, to fall through holes in a trampoline, to ride on four-wheelers with her brothers and to be placed in the front seat of a car that had air bags. He even blamed the mother for the fact that her car 2 98-5825 CIVIL caught on fire because of an electrical malfunction in the ignition. The father complains that the child watches unsuitable movies and TV shows and has cavities because she doesn't brush her teeth at her mother's house. Mr. Aby's then went on to describe his parenting of Kailey as being without blemish. On cross-examination, Mr. Aby agreed that his proposed change in the custody arrangement would require some before and after school care for Kailey. He acknowledged that the mother was very much involved in Kailey's health care. He dismissed a letter from the dentist indicating that the situation with respect to Kailey's cavities was not a cause for concern. Mr. Aby's mother, Kailey's grandmother, testified. She was understandably supportive of her son. The plaintiff/respondent, Carol Aby, testified. She indicated that she had two sons, ages eleven and twelve, by a prior marriage. They get along well with Kailey when her father, the defendant, allows the children to have contact. Mrs. Aby's sons reside with their father but it is anticipated that they will soon return to their mother to finish high school at a parochial school in Cumberland County. She described Mr. Aby as being very critical of her. She described his past history with drugs and alcohol. Mrs. Aby then spent considerable time addressing the various complaints which the father had concerning her parenting. It was clear from the testimony that Mrs. Aby is very much involved in the day-to-day activities of her daughter. At the same time, she fosters a good relationship between Kailey and Kailey' s father. It is the mother, we believe, who is largely responsible for the fact that Kailey is happy and well adjusted despite the problems which separate her parents. Thus, we see no need to change the current situation with respect to Kailey's custody in the manner suggested by Mr. Aby. The fundamental issue in all custody cases is the best interest of the child. Tripathi v. 3 98-5825 CIVIL Tripathi, 787 A.2d 436 (Pa. Super. 2001). We do not believe that Kailey's best interests are served by limiting her contact with her mother. December 12, 2002 Kevin A. Hess, J. Carol Lindsay, Esquire For the Plaintiff/Respondent Gerald Robinson, Esquire For the Defendant/Petitioner :rlm 4