HomeMy WebLinkAbout2007-2335 Civil
SALVATORE ONEGLIA, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CIVIL ACTION – LAW
: NO. 07-2335 CIVIL
ROBERTA ONEGLIA, :
Defendant : IN CUSTODY
IN RE: OPINION PURSUANT TO RULE 1925
BEFORE HESS, J.
On November 4, 2008, we entered an order in this case wherein we denied a request for a
change in custody respective to the eleven-year-old son of the parties, Andrew, born April 19,
1997. An appeal has been filed by the defendant, Andrew’s mother. In her statement of matters
complained of on appeal, filed December 23, 2008, the defendant states a single issue:
1. Did the trial court abuse its discretion by
maintaining the shared legal and physical custody
interim agreement, when the evidence adduced at
trial confirmed that the child’s best interests and
permanent welfare would be served by awarding
Defendant-Mother primary physical custody and
sole legal custody?
We filed a brief memorandum opinion in support of our order of November 4, 2008. We now
expand upon our memorandum in this opinion filed pursuant to Pa.R.A.P. 1925(a).
The parties in this case were married on June 8, 1980, and separated in August of 2006.
They are the parents of four children: Gabriella, age twenty-seven; Patrick, age twenty-six;
Rebecca, age twenty-four; and, Andrew, age eleven. The father resides in Mechanicsburg,
Pennsylvania, in a four-bedroom house which is the former marital residence. The mother
resides in Harrisburg, Pennsylvania, at a home owned by her fiancé, who also resides there.
Shortly after the mother left the marital residence, the parties began sharing physical custody of
NO. 07-2335 CIVIL
Andrew. Custody became an issue, however, when the father filed a complaint seeking primary
physical custody of Andrew. In June of 2007 the parties agreed to maintain a shared custody
schedule and to submit the matter of a custody evaluation to Debra L. Salem, CAC,LPD.
The father, who was born in Sicily, Italy, is self-employed as a painting contractor. The
mother is the executive director of NCAS, a wholly owned subsidiary of Capital Blue Cross.
Both parties have flexible work schedules.
During the marriage, the father was abusive towards the mother and his three older
children. Patrick and Rebecca no longer have a relationship with their father. Gabriella, on the
other hand, is estranged from her mother. There is no evidence of any abuse in the father’s
relationship with Andrew.
The mother was raised as an Episcopalian but converted to Roman Catholicism when she
married father. Shortly after the parties’ marriage, both joined the Jehovah’s Witnesses. In
2001, following an altercation with Patrick, the father was counseled by elders in the Jehovah’s
Witnesses Church or Kingdom Hall. From 2001 until 2006, the father did not attend Jehovah’s
Witnesses services. Ultimately, the father returned to the practice of this faith. In the meantime,
however, the mother disassociated herself entirely from the Jehovah’s Witnesses.
Because of his faith, the father does not celebrate holidays. He has no objection,
however, if Andrew celebrates holidays with his mother. The difference in the religion of the
parties raises a concern with respect to Andrew’s health care inasmuch as Jehovah’s Witnesses
are opposed to the transfusion of blood products. The father, however, is knowledgeable
concerning alternative methods of medical care and notes that there are doctors in the area who
understand how to treat patients without blood products.
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Although Andrew is obviously distressed by the separation of his parents, he has adjusted
to the shared custody arrangement and appears content. He is in the sixth grade at Good Hope
Middle School which is in a building located behind the father’s house. Andrew wishes to
continue attending school at Good Hope. The mother does not live in the Cumberland Valley
School District but has evidenced a willingness to provide transportation to school.
Ms. Salem, the evaluator in this case, has recommended that primary custody of Andrew
be awarded to his mother. The mother has adopted the position that she should be awarded
primary physical custody. While no longer pursuing his claim for primary physical custody, the
father would prefer to at least maintain the status quo. Following our recent hearings in this
matter, we ruled in favor of the father.
As noted above, Andrew appears content with the current arrangement. We did not keep
it in place, however, merely because it is Andrew’s preference. His parents, like other divorced
people, have some scars from their years of living together. Andrew has managed to emerge
relatively unscarred. The fact that he has chosen not to take sides and is, in fact, comfortable
spending equal amounts of time with both parents is also very telling as it relates to the question
of what is in his best interest. While in shared custody, he has, in fact, thrived. His grades are
excellent. He is seated as first chair saxophone player in the school band. He has bonded with
both parents and both help him with his homework and attend school functions and take him to
doctor’s appointments. Andrew goes to both parents for advice and it is clear that his physical,
emotional, spiritual, and intellectual needs are being met in the current custody arrangement.
It is true that he receives his religious training primarily from his father. It is his father
who takes him to meetings at Kingdom Hall. In our memorandum opinion in November of
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2008, we expressed concerns about “storm clouds” on the horizon in this case because one tenet
of the Jehovah’s Witnesses faith is that its members should not associate freely with
nonbelievers. While Ms. Salem attempts to disassociate her recommendations from the question
of religion, it is clear that one of her main concerns is the potential collision course which would
come about in the event that Andrew ever had to make a decision between his father’s religion
and his mother. We have no crystal ball and will not allow guesswork about the future course of
this case to dictate the present custody order.
We note, also, the legal arguments of the plaintiff advanced in favor of shared custody.
In a seminal case of In Wesley J.K., 445 A.2d 1243 (Pa.Super. 1982), the Superior Court
expressed concern in severing meaningful contact with a non-custodial parent:
Generally, children develop an attachment to both
parents, even though one parent may play an
inactive role in the child’s development. These
attachments are different from others because
children depend on them for their security or well-
being. If either of these attachments is severed,
children suffer greatly. Not only do they hurt from
the present loss, their future relationships may be
jeopardized. For example, once these attachments
are broken, children may become reluctant to place
their trust in someone else as completely. They
will form new attachments, but in all probability,
these ties will not be as strong as they would have
been if the early attachment bond had not been
severed.
… The children often feel abandoned and rejected.
It shakes their basic sense of security to see
someone they have loved and trusted gone from
their lives.
When placed in sole custody, children often see the
absence of “visiting” parent as a second-class
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person; if the children have identified with this
parent, they may feel inferior also.
In re Wesley J.K., 445 A.2d 1243, 1246-47
(Pa.Super 1982) (citing Bratt, Joint Custody,
Ky.L.J. 271, 296-297 (1978-79)).
The court in In re Wesley J.K. then went on to suggest what was, at the time, a novel approach to
custody cases in Pennsylvania:
An alternative to the traditional sole custody
arrangement is “shared” or “joint” custody wherein
legal custody is shared while physical custody is
alternated by the agreement of the parties. The
philosophic premise of shared custody is the
awarding to both parents of responsibility for
decisions and care of the child. In the past non-
custodial, conscientious parents have been
frustrated by the second class status to which the
law has assigned them. It was difficult to develop
healthy relationships to a child where their role
may have been limited to a weekend parent whose
counsel was not sought in decisions affecting the
child. Shared custody allows both parents’ input
into major decisions in the child’s life.
Id. at 1247. The court went on to observe that shared custody arrangements have been found to
foster more natural relations within the divorced family as it more closely models the intact
nuclear family. Id. at 1247. In addition, the court observed that the child is much less likely to
be used as a weapon by the custodial parent against the non-custodial parent. Id.
In order for shared custody to be practicable, of course, the parents must enjoy at least a
minimal degree of cooperation. One sign of their ability to cooperate is their prior stipulation to,
and ability to abide by, a shared custody arrangement. See Smith v. Smith, 453 A.2d 1002
(Pa.Super. 1982). As the plaintiff observes:
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[T]he parties agreed to both a joint legal and
physical custody arrangement shortly after
separation, when tensions between them were at
their highest. It is clear that both parents are
willing to provide love and care for Andrew. The
evidence of record supports a finding that both
parents have played an active role in Andrew’s life
since separation and intend on continuing to do so.
Testimony from all witnesses, including the
custody evaluator and Andrew himself, establishes
that Andrew has a loving relationship with both
parents and, evidence of record, including email
communications between the parties, shows that,
despite their dislike for each other at this time, they
are able to have the required minimal
communication about Andrew and can make joint
decisions about his care.
Plaintiff’s Memorandum of Law, pp. 7-8.
We acknowledge that the custody evaluation conducted by Ms. Salem resulted in a
recommendation of primary custody in the mother. Ms. Salem filed a report which is most
thorough. Her analysis of the situation is, in fact, exhaustive. Her recommendation for a change
in custody, however, does not center around a concern for the present but, rather, has more to do
with her predictions about the future. She notes, for example, that:
The differences in the parents’ styles and the
ongoing conflict that existed in their marital
relationship do not predict a positive, collaborative
or open co-parenting relationship in the future.
The differences also do not support a successful
shared custody schedule. There is no evidence in
the parents’ past relationship or in their current
negotiation that gives the Evaluator any comfort
that once “the dust settles” with regard to their
separation, they will be able to resolve their
differences and collaborate for Andrew’s best
interest …. Both parents will need interventions to
help them change an ingrained perception of the
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other and, more importantly, to change the style
they bring to the process that is problematic.
Ms. Salem describes Mr. Oneglia as the more rigid and legalistic of the two parents. He is,
however, able to work with the mother on issues related to Andrew. It is unclear from her report
how or why an award of primary legal and physical custody to the mother will necessarily avoid
future problems. Nor is it clear why primary custody in the father would not be equally
acceptable. We simply do not understand the connection between Ms. Salem’s observations and
her recommendation. That having been said, we find many of her conclusions to be insightful.
On page 26 of her report, she concludes:
In summary, when attempting to find a solution for
Andrew that addresses all of the different,
complicated factors that create his torn loyalties,
the Evaluator experiences the realization that it is
nearly impossible to do so …. One gets the sense
that it is impossible to establish recommendations
that will relieve the anxiety and conflict that
Andrew feels while, at the same time, provide him
with the family relationships that are so important
to him. Giving Andrew what he needs from both
of his parents can only occur if the parents take on
the requirements to either make major changes in
their levels of acceptance of each other or to make
changes for Andrew so that he is the first of their
four children to be freed of their differences….
From a purely psychological point of view, the
painful observation of the profound relationship
divisions in this family leads to a concern, on an
emotional and psychological level, about the
impact on Andrew of an even-more severe form of
torn loyalty that most divorced children with an
even more profound need to live distinctly
different lifestyles in different homes.
It is true that Andrew’s loyalties are torn. He, however, comprehends his own position in
all of this and has been able to adapt. His adaptation has allowed him to maintain a relationship
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with both of his parents. We fail to understand how marginalizing his contact with either parent
will improve upon his situation. In short, we are not satisfied that an award of primary custody
to one parent or the other is in Andrew’s best interest.
January 13, 2009 _____________________________
Kevin A. Hess, J.
Pamela L. Purdy, Esquire
For the Plaintiff
Theresa Barrett Male, Esquire
Andrea H. Duffy, Esquire
For the Defendant
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