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HomeMy WebLinkAbout98-4850 civilJOEL C. SUMMERS, IN THE COURT Of COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. WENDY L. SHULL, DEFENDANT : 98-4850 CIVIL TERM IN RE: CUSTODY ORDER OF COURT AND NOW, this ~.C~. day of July, 2001, IT IS ORDERED: (1) All prior orders in this custody case are vacated and replaced with this order. (2) Wendy L. Shull and Joel C. Summers shall have joint legal custody of Alexandria Summers, born April 17, 1995, and Noah Summers, born April 13, 1996. (3) During each summer, each parent shall have both children for one full week, the weeks to be agreed to by the parties. Otherwise, each weekday except Tuesday, the mother shall take the children to a babysitter in the morning. On Monday, the father shall pick them up after he finishes work. He shall return them to the mother after she finishes work on Tuesday. On Wednesday, Thursday, and every other Friday, the father shall pick the children up from the babysitter after he finishes work and return them to the mother after she finishes work. Every other weekend, the father shall have the children from after he finishes work on Friday until Sunday evening. (4) During the school year, the children shall live with their mother and attend public school out of the mother's home. The father shall have them every other weekend from Friday after school until Sunday evening. He shall have them every 98-4850 CIVIL TERM Monday from after school until the start of school Tuesday morning. (5) Holidays shall be shared by the parties as mutually agreed. John Broujos, Esquire Edgar B.'Bayley, v. / For Joel C. Summers Karl Rominger, Esquire For Wendy L. Shull :saa JOEL C. SUMMERS, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. WENDY L. SHULL, DEFENDANT : 98-4850 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., July 24, 2001:-- Joel Summers, age 33, and Wendy L. Shult, age 25, were married and lived together for about two and a half years. They have been separated three and a half years, and are now divorced. They are the parents of Alexandria, age 6, born April 17, 1995, and Noah, age 4, born April 13, 1996. Both parents seek primary physical custody of Alexandria and Noah. A hearing was conducted on June 27, 2001. The father lives alone in a three-bedroom house in Carlisle, Cumberland County. He is a baker at Dickinson College, where he works a 3:00 a.m. to noon shift five days a week. He has off Tuesdays and Sundays. The mother lives with her boyfriend Nicholas Perkins, age 33, in a two-bedroom trailer in New Bloomfield, Perry County. She is an accounting clerk for a Toyota/Lexis automobile dealer. She works 9:00 a.m. to 5:00 p.m. Monday through Friday. On August 21, 1998, an order of shared physical and legal custody of Alexandria and Noah was entered by stipulation. It provides: (1) The shared physical custody of the children shall be as follows 98-4850 CIVIL TERM to accommodate the work schedules of the parents: (A) (1) Wife shall drop the children off at day-care each day except as hereinafter provided at 8:30 A.M.; (2) Husband shall pick up the children at day-care at 12:30 P.M.; (3) Husband shall retain the children from 12:30 P.M. to 5:30 P.M.; and (4) Wife shall pick up the children at 5:30 P.M. and keep them overnight. (B) Every other weekend Husband shall have the children from Saturday at 12:30 P.M. until Sunday at 8:00 P.M. (C) Every week, Husband shall have the children from Monday at 12:30 P.M. to Tuesday at 8:00 P.M. (D) Holidays and vacations shall be mutually agreed to by the parties from time to time. During the summer of 2001, the parties have the following schedule. On each weekday except Tuesday, the mother takes the children to a babysitter at 8:00 a.m. On Monday, the father picks the children up from a babysitter at 1:00 p.m. He returns them to the mother at her place of work at 5:00 p.m. on Tuesday. On Wednesday, Thursday, and every other Friday, the father picks the children up at the babysitter at 1:00 p.m. and returns them to the mother when she gets off work at 5:00 p.m. Every other weekend, the father has the children from Friday at 1:00 p.m. until Sunday evening. He works those Friday evenings during which time the children stay with their paternal grandparents. During the school year, 2001/2002, Alexandria will be in the first grade. Noah will be in preschool. Last year, by agreement, Alexandria attended kindergarten at the Bethel Christian Academy. Noah went to a preschool program at the Academy. The mother wants Alexandria to attend first grade in the Carroll Elementary School of the -2- 98-4850 CIVIL TERM West Perry County School District, which is less than a five-minute drive time from her home. The father wants Alexandria to continue to go to Bethel Christian Academy. The mother has a daughter, age 8, who lives with her father, Robert Henry. The mother has that daughter every other weekend, and is otherwise in regular contact with her. The mother's parents live approximately two minutes travel time from her. She has two brothers who live in Perry County. The children are actively involved with the mother's family. The mother has known Nick Perkins for close to four years. They have lived together since December 25, 2000. He is a self-employed residential subcontractor. The father's parents live in Boiling Springs. He has a sister who lives in Mt. Holly, and a brother who lives in York Springs. The children are actively involved with the father's family. Three incidents have occurred that have caused the father to believe that it would be in the best interest of the children that he have primary physical custody.' In February, 2000, the father saw some bruises on Noah. He told the mother, and she said that the bruises were not caused by her or Nicholas Perkins. At trial, the mother testified that Perkins was not living with her in February, 2000. She does not know how the bruises occurred. Several months later there was a bruise mark on Noah's chest. ' The father testified that prior to the incidents he had been willing to talk with the mother about the children attending public school. -3- 98-4850 CIVIL TERM The father testified that Noah said that the mark had been inflicted by Perkins. The father testified that he told the mother, who said, "here we go again." The mother testified that the father did not inform her about this incident. In the winter of 2000, there were some bruises on Noah, and the father took him to an emergency room. The father testified that Noah told him that they were caused by Perkins when he grabbed him after he wet his bed. The father made a report to Children and Youth Service in Perry County. He also filed a custody petition for special relief. He and the mother agreed to the entry of a temporary court order, that Nicholas Perkins would not be allowed to be alone with the children at anytime. At this custody hearing, the mother testified that the children were jumping on a chair when Noah fell and was bruised. The father's allegations were determined to be unfounded by Children and Youth Services. The mother testified that Perkins has a very loving relationship with the children, she does not believe that he has abused them in any way, and she would leave him if there was a problem. Perkins testified that he does not spank the children, nor improperly discipline them. The father believes that the mother and Perkins may be using marijuana in the presence of the children. While both he and the mother admitted having used marijuana in the past, we do not consider credible his allegations of current usage by the mother and Perkins in the presence of the children. ^ determination of the children's best interest is on a case-by-case basis, and is to be premised upon consideration of all factors that legitimately affect a child's -4- 98-4850 CIVIL TERM physical, intellectual, moral and spiritual wellbeing. Alfred v. Braxton, 442 Pa. Super. 381 (1995). We believe both the mother and the father are good parents and are doing an excellent job raising Alexandria and Noah. We met both of these young children in chambers. They are healthy, happy kids and they love both of their parents. We do not believe that Nicholas Perkins has abused Noah. Having the children live with the father during the school year does not make sense given his work schedule. He is not home on Monday, Wednesday, Thursday and Friday mornings. He has to sleep during much of the time the children would be out of school. We do not believe it is in the best interest of Alexandria and Noah to remove them from daily contact with their mother. It make practical sense to have the children live with her and attend public school out of her home, and for the father to continue to have extensive contact with them. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this ~-,,~. day of July, 2001, IT IS ORDERED: (1) All prior orders in this custody case are vacated and replaced with this order. (2) Wendy L. Shull and Joel C. Summers shall have joint legal custody of Alexandria Summers, born April 17, 1995, and Noah Summers, born April 13, 1996. (3) During each summer, each parent shall have both children for one full week, the weeks to be agreed to by the parties. Otherwise, each weekday except Tuesday, the mother shall take the children to a babysitter in the morning. On Monday, the father shall pick them up after he finishes work. He shall return them to the mother after she -5- 98-4850 CIVIL TERM finishes work on Tuesday. On Wednesday, Thursday, and every other Friday, the father shall pick the children up from the babysitter after he finishes work and return them to the mother after she finishes work. Every other weekend, the father shall have the children from after he finishes work on Friday until Sunday evening. (4) During the school year, the children shall live with their mother and attend public school out of the mother's home. The father shall have them every other weekend from Friday after school until Sunday evening. He shall have them every Monday from after school until the start of school Tuesday morning. (5) Holidays shall be shared by the parties as mutually agreed. By the.6~ d--'~~ Edgar-B. Bayley~'~ John Broujos, Esquire For Joel C. Summers Karl Rominger, Esquire For Wendy L. Shull :saa -6-