HomeMy WebLinkAbout02-1992 CivilKEVIN G. DESIDERATI, · IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
Vo
CIVIL ACTION - LAW
ADESSA R. SEITZ,
Defendant
NO. 02-1992 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., January 13, 2004.
In this contentious custody case, commenced by the father in 2002, three
custody conciliation conferences have been held,~ six custody orders have been
entered,2 and the court has held hearings on two days.3 The subject of the
litigation is a two-year-old girl.4 The parties were never married,5 the 23-year-old
father never lived with the mother,6 and the mother has been the primary caretaker
of the child since birth.7
The father has appealed from a custody order which awarded the parties
joint legal custody, the mother primary physical custody, and the father liberal
periods of temporary or partial physical custody, including one week out of three
during the summer and special accommodations relating to periods in which he is
unavailable due to National Guard duties,a
In a three-page statement of matters complained of on appeal, the father's
counsel has expressed the grounds for the appeal as follows:
May 28, 2002; August 26, 2002; February 28, 2003.
June 3, 2002; September 10, 2002; March 28, 2003; July 1, 2003; September 29, 2003; October
2, 2003.
June 30, 3003; September 25, 2003.
N.T. 5, Hearing (hereinafter N.T. __).
5N.T. 4.
6N.T. 4.
7N.T. 7.
Order of Court, September 29, 2003; Order of Court, October 2, 2003.
1. The Trial Court erred in not granting shared equal
physical custody of the minor child with the parties. This
Order constituted an initial determination by the Court of the
rights of these parties with regard to the custodial relationship
of their infant daughter. No presumptions in favor of either
parent should have been employed by the Court. It is believed
that the Court applied a presumption in favor of the mother
when the determination should have been made based solely on
the particular facts and circumstances of the case, which
Plaintiff submits established father as an appropriate and fit
caretaker, loving father, and best equipped to make decisions in
the best interest of the child and to foster a positive relationship
for the child with the other parent. An order for shared equal
physical custody would have been proper since both parents
are fit, both parents evidenced a continuing desire for active
involvement in the child's life, both parents are recognized by
the child as a source of security and love, and a minimum
degree of cooperation between the parents was illustrated of
record.
2. If the Court indicates that Order was entered to confirm
the status quo, it is suggested that this is in error. Only the
initial Custody Order dated June 3, 2002 was entered by
agreement of the parties and that agreement was specifically
conditioned upon the specific consideration that it be reviewed
in three months without prejudice to the rights of Plaintiff
pending resolution of the child's infant health issues. Plaintiff
has been significantly prejudiced by the delay in reaching a
speeding hearing on his custody complaint, which delay was
substantially the result of the conciliation process, the repeated
changes of Defendant's counsel, and the Court's schedule.
3. In reviewing the facts and circumstances of the case, the
Court disregarded substantial evidence of Defendant's
obstructive conduct and her inability to foster a relationship
between the child and the Plaintiff, her inability to make
decisions in the best interest of the child such as decisions
related to her healthcare, and her unilaterally disregard [sic] for
existing and agreed upon plans for child care and medical
treatment.
4. The Court disregarded substantial evidence of the fitness
of the Plaintiff and failed to give substantial weight to the total
lack of contrary evidence being presented concerning any
inability to act to care for the child or to provide a stable
2
environment. Efforts to discredit his stability due to early
employment changes immediately upon his graduating from
college should have been significantly overcome by his
extended employment with his current employer.
5. The Trial Court disregarded the best interest of the child,
who at a young and tender age and who had consistent and
regular contact with both parents, would be relegated to
infrequent contact with Plaintiff with custodial gaps with lack
of contact in excess of eleven days bi-weekly.
6. Alternatively, while the Court seemed to acknowledge
the ability of Plaintiff to care for the child for extended periods
by allowing uninterrupted weeks of custody in the summer, the
court artificially created a school time/summer time schedule
for a young child for whom such a distinction is meaningless
and without relevance.
7. The Court erred in not granting an appropriate sharing of
holidays, including the alternating of Christmas Eve and other
major holidays, contrary to the best interest of the child to
develop significant holiday traditions with each family. 9
This opinion in support of the custody order appealed from is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
Plaintiff is Kevin G. Desiderati, 23; he lives with his girlfriend in
Landisburg, Perry County, Pennsylvania.l° Defendant is Adessa R. Seitz, 25; she
lives with the parties' child in Mechanicsburg, Cumberland County,
Pennsylvania.~ The parties are the parents of a two-year-old daughter named
Madison C. Seitz, born March 25, 2002.~2
Plaintiff father is a laborer~3 and member of the Pennsylvania National
Guard,TM who has been with his girlfriend (not the Defendant) since before the
9 Plaintiff's statement of matters complained of on appeal, filed November 12, 2003.
l0 N.T. 4.
~ N.T. 5.
~2 N.T. 5; Plaintiff's Custody Complaint, para. 3.
~ N.T. 5.
3
birth of the parties' child.~5 Defendant mother is employed by the Pennsylvania
Higher Education Association as a customer service representative.~6 The parties,
as noted, were never married and never lived together. ~7
Following the child's birth in March of 2002, Defendant found herself
frustrated with what she perceived to be the father's lack of interest in Madison. la
His initial contacts with the child occurred when he chose to drop by the mother's
residence.19 As a result of the father's unwillingness to learn to operate a machine
that monitored the infant's heart and breathing rates, he did not place himself in a
position to have overnight custody of the child during the first five months of her
life.2° He also chose not to become recertified in CPR, notwithstanding a
recommendation arising out of the child's precarious health situation that all of her
caregivers be qualified to administer CPR.2~
Since Madison's birth in 2002, the father has had four different residences
and six jobs)~ As of January of 2003, he was approximately $1,000.00 in arrears
in his child support payments)3 The filing of his complaint for custody coincided
with the entry of the support order against him)4
In a short life, Madison has suffered from numerous health problems, at
least one of which has been life-threatening, and with which the mother as her
primary caretaker has, in the court's view, valiantly contended. These conditions
~4 N.T. 33-34.
~s N.T. 11.
16 N.T. 5.
~7 N.T. 5.
~8 N.T. 70.
19 N.T. 70.
20 N.T. 72.
2~ N.T. 60.
22 N.T. 57-58.
23 N.T. 68.
24 N.T. 63.
4
Q
result
result
A
Q
there? ! mean, did she have to go to
ambulance?
A
Q
A
have included gastroesophageal reflux disease,25 asthma,26 chronic ear infections,27
eczema,28 and a yeast infection.29 The severity of her problems is exemplified by
two emergency hospitalizations, one on April 22, 2002, and the second on May 3,
2002;30 both of these incidents have been a source of annoyance to the father in
terms of the mother's notice to him of the emergencies.3~ The first incident was
described by the mother as follows:
· . [With regard to the two] hospital visits as a
of Madison having difficulty breathing. Was that the
of her gastroesophageal reflux disorder.
Yes.
If you could just briefly describe what was going on
the hospital via
Yes, she did.
Why did you call the ambulance?
Because she was choking during a feeding, and I
called 911. And they helped me revive her over the phone and
thenl
arrive,
A
Q
A
They helped you what?
Revive her. They--I called 911 and did CPR.
So while you were waiting for the ambulance to
you were--
I was on the phone.
You were receiving instructions from 911 ?
Yes.
25 N.T. 72.
26 N.T. 31.
27 N.T. 44.
28 N.T. 88.
29 N.T. 75.
30 N.T. 17.
3~ N.T. 16-17.
5
Q And then did you ride
Madison to the hospital?
A
Q
A
Q
in the ambulance with
Yes.
At the hospital, were things pretty hectic?
Yes.
Did you intentionally delay calling Kevin
at the
hospital? I mean, did you just decide it wasn't important to call
Kevin or did you have other things that were occupying your
mind and your time?
A Well, I did try to contact him several times. When I
rode in the ambulance with my mom, I gave her my cell phone
to contact him, and we were not able to contact him.
Q How were you trying to contact him? What number
were you trying to reach him at?
A I tried to call his mom's house. I called his sister's
cell phone, his cell phone.
Q And at that time, he was living with his mother?
From what I understood, yes.
To the best of your knowledge, that's where he was
A
living?
A
Yes.32
Q
What time did you arrive at the hospital?
11:20.
Q
A Yes.
Q Okay. So this is 11:20 p.m., correct?
A Yes.
Q What time did you call Kevin to tell him that you
had just been in an ambulance with Madison and were now at
the hospital?
Are you sure that that's when you arrived at the hospital?
32 N.T. 72-74.
6
A
11:33 p.m.
So 13 minutes after you arrived at the hospital?
Yes, sir.
And is that what these phone records indicate?
Yes, sir.
Now there's a bunch of phone numbers on here.
And one of them is 796-3166, and that's a call that was made
at 11:33. Whose phone number is that?
A That' s Kevin' s mother' s number.
Q And at the time, where did Kevin live?
A With his mother.
Q So that's the first place you called?
A Yes.
Q Now then a couple of lines down, there's another
call at 11:47, you made a call to again 796-3166, correct?
A Yes.
Q Do you recall what happened when you called that number?
A Basically, the first time I called, I had got his sister.
His sister said that she was going to try to contact Kevin. I also
called his sister's cell phone as well.
Q Okay. And?
A I spoke to his sister, and his sister was going to get
ahold of him.
Q But you continued to try to contact Kevin?
A Yes.
Q Even after talking to his sister?
A Yes.
Q All right. So you called both Kevin's home number
and his sister's cell, correct?
A Yes.
Q And
A I didn't get her at home at first.
7
Q
called Kevin five times while at the hospital?
A Yes.33
On both occasions the mother, while dealing
Q So the relevant numbers are 796-3166, which is
Kevin's home number at the time, correct?
A Yes.
And 571-70997
Yes, that's his sister's cell phone number.
Am I correct in reading this document that you
with a life-threatening
incident involving an infant, attempted to reach the father in the course of the
emergency.34 As other portions of the testimony indicate, in the first incident, she
was able to procure his appearance at the hospital;35 in the second incident, she
was able to secure his involvement by telephone prior to leaving the hospital, by
means of calls to his mother and sister.36
Evidence at the custody hearing also indicated that the father had persisted
in keeping cats at his residence, notwithstanding the child's asthmatic and skin
conditions;37 that he had not always adhered to her asthma medication regimen as
prescribed;3a that his insistence in the privacy of his residence had resulted in
exchanges of custody occurring in grocery store parking lots, in one of which he
brought the child without a hat or coat on a very cold December day;39 that he had
left the child at daycare on occasions when she was too sick to be there,4° and that
he had allowed medical insurance on the child, which he was required by the
33 N.T. 116-17.
34 N.T. 17.
3s N.T. 16.
36 N.T. 17.
37 N.T. 83, 222.
38 N.T. 89.
39 N.T. 71, 84-85,206.
40 N.T. 90-91.
8
support order to provide through his employment, to lapse without telling the
mother, who was then forced to secure state-funded insurance and ultimately to
obtain better insurance for the child through new employment.4~
Numerous difficulties with respect to custody and the parents' relationship
were caused by the father's secretiveness about his telephone number,42 his anger
at being asked for information about the child by the mother,43 his resistance to
practical advice such as a suggestion that he obtain a carseat for his vehicle for the
child,44 his demand that baby shower gifts from his family be returned by the
mother (they were),45 his failure to attend scheduled counseling sessions,46 his
insistence that the mother supply him with food and diapers when he received
custody of the child because "that's where his support was going to,''47 and the
adverse effect which his frequent changes of employment had upon the custody
schedule.48 One of the residences of the father and his girlfriend, to which the
child was subjected, was undesirable49 and was shared with two roommates under
the age of 21 who were disrespectful to the child.5°
Although the father was extremely critical of the mother's unwillingness at
times to deviate from the court order as to custody, the evidence showed that he
made a practice of refusing to proceed with exchanges of custody until the exact
moment provided for in the order.~ Similarly, although the father chastised the
4~ N.T. 80-81.
4: N.T. 75, 176-77.
43 N.T. 205.
44 N.T. 24.
45 N.T. 62.
46 N.T. 62-63.
47 N.T. 205.
48 N.T. 78.
49 N.T. 82-83.
5° N.T. 81, 190.
5~ N.T. 207, 215.
9
mother for failing to promptly consult him about the child's medical
circumstances, the evidence revealed that he had scheduled the child for elective
surgery without informing the mother,s2 A petition for contempt filed by the
father against the mother was based, in the court's view, upon incidents in which
the mother had clearly acted in the child's best interest--e.g., by following a
doctor's advice that the child, who had contracted an illness, not be exposed to the
elements,s3
With no hint of irony, the father urged the court at the custody hearing to
order the mother to undergo counseling,s4
The initial custody order in this case, issued pursuant to an agreement of the
parties on June 3, 2002, awarded primary physical custody of the child to the
mother and included no overnight custodial periods for the father,ss The second
custody order, entered on September 10, 2002, was the product of a
recommendation of the custody conciliator, following a conciliation conference,
and provided for the mother to have primary physical custody and the father to
have temporary or partial physical custody on alternating weekends for one or two
days, and for brief periods on three weekdays,s6
The third custody order, issued on March 28, 2003, was the result of an
agreement of the parties at a custody conciliation conference whereby the father
was to have temporary or partial physical custody on alternating weekends,s7 inter
alia. The agreement collapsed over details following the conference,s8 and the
52 N.T.
53 N.T.
54 N.T.
55 N.T.
56 N.T.
57 N.T.
58 N.T.
183-84.
39, 153-61,208-12.
55.
7; Order of Court, June 3, 2002.
8; Order of Court, September 10, 2002.
8-9.
8-9; Custody Conciliator Summary Report, March 24, 2003.
10
order which was entered by the court pursuant to the conciliator's
recommendation included a provision for a hearing before the court.
The fourth custody order, issued by the court on an interim basis on July 1,
2003, following a contentious hearing in June, 2003, in which both parties
testified, provided for primary physical custody in the mother, temporary or partial
physical custody in the father on alternating weekends, for a week at Christmas,
on Thanksgiving, and, in the summer, for one out of every three weeks.59 Upon
implementation, this order worked well from the child's standpoint.®
Following a second day of hearing at which the parties both testified again,
at which additional witnesses were called, and at which Plaintiff's counsel
complained of the lack of accommodation provided in the interim order for
Plaintiff's National Guard duty,61 the custody order from which Plaintiff father has
appealed (as modified by a clarifying order issued at Plaintiff's request62) was
entered:
AND NOW, this 29th day of September, 2003, upon
consideration of (a) Plaintiff's Custody Complaint with respect to the
parties' daughter, Madison C. Seitz (d.o.b. March 25, 2002), (b)
Plaintiff' s Petition for Contempt, and (c) Defendant's Counterclaim for
Modification of the existing custody order, and following a hearing
held on June 30, 2003, and September 25, 2003, it is ordered and
directed as follows:
1. Legal custody of the child shall be shared by the
parties.
2. Primary physical custody of the child shall be in
Defendant, the mother.
3. Temporary or partial physical custody of the child
shall be in Plaintiff, the father, at the following times:
a. From September through May
59 Order of Court, July 1, 2003.
60 N.T. 147.
61 N.T. 140, 169.
6: See Order of Court, October 2, 2003.
11
(1) On alternating weekends,
from Friday at 5:00 p.m. until Sunday
at 5:00 p.m., provided, that on such
weekends where the following
Monday is a federal holiday Plaintiff' s
periods of temporary or partial
physical custody shall extend to
Monday at 5:00 p.m.;
(2) From Christmas Day at 2:00
p.m. until December 31 at 2:00 p.m.;
(3) On Thanksgiving Day, from
2:00 p.m. until 7:00 p.m.; and
b. From June through August, for one week
out of every three weeks.
4. Notwithstanding any of the terms of paragraph 3,
Plaintiff shall not exercise temporary or partial physical
custody while he is on National Guard Duty; provided that,
where a period of temporary or partial physical custody is
missed by Plaintiff because of National Guard Duty, it shall
be promptly made up at a time agreed upon between the
parties, or, in the event of an inability of the parties to
agree, at a time selected by Plaintiff upon five days' written
notice to Defendant.
5. Neither party shall secrete the location of the child
from the other party.
6. Transportation for exchanges of custody shall be the
responsibility of the party receiving custody.
7. Nothing herein is intended to preclude the parties from
deviating from the terms of this order by mutual agreement.
8. All other relief requested by either party is denied.
9. This order supersedes all prior custody orders.63
In fashioning this order, which (a) expanded the father's periods of
temporary or partial custody from the prior interim order to accommodate his
National Guard duty, (b) provided for a summer schedule which would permit
vacation weeks with the child by each parent, (c) afforded the father Christmas
63 Order of Court, September 29, 2003 (emphasis added); Order of Court, October 2, 2003.
12
and Thanksgiving custodial periods as well as three-day holiday weekends as
dictated by the calendar, and (d) otherwise afforded the father alternating
weekends, commencing on Friday and ending on Sunday, the court attempted to
reconcile the interest of the child in maintaining a good relationship with her
father with her interest in taking advantage of the superior qualities of the mother
as a parent.
DISCUSSION
With respect to custody, it has been said that "the guiding polestar in a
custody matter is what is in the best interests of the child." Frank & Gale,
Pennsylvania Family Practice Manual §9.02(B), at 328 (1990). One of the
important factors to be considered in such a case is who has been the child's
primary caretaker. Id §9.02(B)(2) at 334. Although shared physical custody (as
advocated by the father in the present case) is appropriate under certain
circumstances, there is no presumption in favor of shared custody merely because
neither parent is totally unfit. See Smith v. Smith, 307 Pa. Super. 544, 549, 453
A.2d 1020, 1023 (1982).
Shared physical custody may be ordered where both parents are fit, both
parents evidence a continuing desire for active involvement in the child's life, both
parents are recognized by the child as sources of security and love, and a minimal
degree of cooperation between the parents is possible. Andrews v. Andrews, 411
Pa. Super. 286, 291,601 A.2d 352, 354 (1991).
In making an assessment of the parents in the present case which favored
the mother, the court was influenced by a number of evidentiary factors. First, as
has been previously noted, the father basically ceded initial primary caretaker
status to the mother after the child was born, by disappointing expectations as to
his involvement with the baby, declining to learn how to operate the child's
heart/breathing rate monitor, refusing a recommended CPR course, and agreeing
to an initial order providing for extremely limited contact with the child on his
part. Second, the mother's care of the child in that role has been extremely good
13
under very difficult circumstances, including the child's life-threatening health
condition and the father's hypercritical attitude toward her.
Third, while the father undoubtedly is interested in the child, his conduct
has not been nearly so mature and responsible as the mother's in terms of
parenting. Without reiteration of the entire history of the case, several examples
may be mentioned: his overly-critical attitude toward the mother's endeavors, his
refusal to take certain measures in the interest of the child's health,64 the lapse of
health insurance without notification of the mother, and the arrearage on his
support obligation. Furthermore, in the court's view it was not coincidental that
the father's custody complaint was filed on the same day a child support order was
entered against him.
The disparity in the parental advantages offered to the child by the parties,
and the extreme antagonism of the father toward the mother, led the court to reject
a shared physical custody arrangement in favor of an arrangement whereby the
parties would have joint legal custody, the mother would have primary physical
custody, and the father would have liberal periods of temporary or partial physical
custody. The court did not, as suggested by the statement of matters complained
of on appeal by Plaintiff's counsel, apply a presumption in favor of the mother,
attempt to precisely replicate the status quo, fail to consider Plaintiff' s allegations
that the mother's performance as a parent was derelict, disregard "substantial
evidence of the fitness of the Plaintiff," or adjudicate the case on the basis of a
principle other than the best interests of the child.
The summer schedule, as provided for in the order appealed from, was
intended to make available vacation periods for the parents with the children. The
order did not, as Plaintiff's counsel suggests, deprive Plaintiff of holidays; to the
contrary, it afforded him custodial periods of a week during the Christmas season,
64 A legitimate disagreement did exist between the parties as to whether it would be in the child's
best interest to have tubes placed in her ears. See N.T. 45, 47, 99, 137, 142, 182. In the absence
14
a portion of the Thanksgiving holiday, and extended weekends where federal
holidays fell on the following Mondays; it may also be noted that, for a two-year-
old child, the significance of a given holiday other than Christmas and
Thanksgiving is somewhat conjectural.
For the foregoing reasons, it is believed that the custody order from which
Plaintiff has appealed was appropriate.
BY THE COURT,
Barbara Sumple-Sullivan, Esq.
Plaintiff's Counsel
J. Paul Helvy, Esq.
Defendant's Counsel
J. Wesley Oler, Jr., J.
of medical testimony on the issue, the court was not in a position to adopt an opinion on the
matter.
15