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HomeMy WebLinkAbout2004-4217 Civil WILLIAM A. LAYTON, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CAROL B. LAYTON, : DEFENDANT : 04-4217 CIVIL TERM IN RE: CUSTODY (OPINION SUPPORT OF ORDER OF SEPTEMBER 3, 2009) Bayley, J., September 24, 2009:-- William Layton and Carol Darhower, who are divorced, are the parents of Rachel Layton, age 8, born February 18, 2001. On September 3, 2009, following a hearing on the merits, the following order was entered: (1) The petition of Carol B. Layton to change the school district in which IS GRANTED. Rachel attends school, (2) The order of April 13, 2006, is vacated. (3) The petition of William A. Layton for shared physical custody of Rachel, to change his alternating Tuesday evening visit to a full period of IS overnight custody, and for Rachel to remain in the Carlisle School District, DENIED. However, Paragraph 4(b) of the order of January 6, 2006, is deleted and replaced with the following: 1 The first Tuesday from 3:00 p.m. until 8:15 p.m. 1 The third order of March 22, 2006, is not affected by this change. There are three prior operative custody orders for Rachel entered on January 6, 1 March 22 and April 13, 2006. The effect of these orders is that the parents share legal custody of Rachel; the mother has primary physical custody; and the father has her overnight for six out of every fourteen days. The order of January 6, 2006, provides: __________ 1 There was an earlier custody order entered on October 5, 2005, following a hearing on the merits. 04-4217 CIVIL TERM (1) All prior custody orders are vacated and replaced with this order. (2) William A. Layton and Carol B. Layton shall have shared legal custody of their daughter Rachel G. Layton, born February 18, 2001. (3) The mother shall have primary physical custody of Rachel. (4) The father shall have temporary physical custody of Rachel during fourteen day cycles as follows: (a) Starting on the first Thursday at 3:00 p.m. until Monday morning when he shall deliver Rachel to her mother’s home before he goes to work, after which the mother shall deliver her to school. On the Friday, he shall deliver Rachel to the mother’s home before he goes to work, after which the mother shall deliver Rachel to school. (b) The first Tuesday from 3:00 p.m. until 7:30 p.m. (c) The second Thursday from 3:00 p.m. until the next morning when he shall deliver Rachel to her mother’s home before he goes to work, after which the other shall deliver Rachel to school. (d) The second Tuesday from 3:00 p.m. until Wednesday morning when he shall deliver Rachel to her mother’s home before he goes to work, after which the mother shall deliver Rachel to school. (e) On each school day, from after school after which he shall deliver Rachel to the mother’s home when she returns from work. (5) The following holidays shall alternate: President’s Day, Memorial Day, July 4th, Labor Day and Columbus Day. Each holiday shall commence on the evening before the holiday and end on the evening of the holiday. (6) At Thanksgiving, Block A shall be from Wednesday before Thanksgiving at 4:00 p.m. until Thursday at 5:00 p.m. Block B shall be from Thursday at 5:00 p.m. to Friday at 5:00 p.m. Block C shall be from Friday at 5:00 p.m. until Monday. The mother shall have Blocks A and C in even numbered years and Block B in odd numbered years. The father shall have Blocks A and C in odd numbered years and Block B in even numbered years. (7) At Christmas, Block A shall be from December 23 at 5:00 p.m. to Christmas Day at 12:00 noon. Block B shall be from Christmas Day at 12:00 noon to December 27 at 6:00 a.m. Mother shall have Block A in even numbered years and Block B in odd numbered years. The father shall have Block A in odd numbered years and Block B in even numbered years. (8) Each parent shall have Rachel for two non-consecutive weeks (seven consecutive days) in the summer provided they give the other parent thirty days notice. The parents’ alternating weekends shall be included in their seven day periods. The amending order of March 22, 2006, provides: (A) Paragraph (4)(a), (c) and (d) providing that the father “shall deliver -2- 04-4217 CIVIL TERM Rachel to her mother’s home before he goes to work,” shall mean that these deliveries of Rachel to the mother’s home shall be at 5:50 a.m. (B) Paragraph 4(e) is vacated and replaced with the following: On each school day, from after school after which he shall deliver Rachel to her mother’s place of employment at Carlisle Syntec at 5:05 p.m., and he shall not feed Rachel dinner on these days. (C) The last sentence in paragraph 5 is deleted and replaced with the following: Each holiday shall commence at 6:00 p.m. on the evening before the holiday and end at 6:00 p.m. on the evening of the holiday. (D) All other provisions in the order of January 6, 2006, shall remain in full force and effect. In summary, the mother has Rachel every Monday and Wednesday night and every other Thursday, Friday, Saturday and Sunday night. The father has her every other Friday, Saturday, Sunday and Thursday night, and every other Tuesday night. On the Tuesday of the week he does not have her that night he has her from 3:30 p.m. until 7:30 p.m. The third order of April 13, 2006, provides: 1. The prior Orders of Court dated January 6, 2006 and March 22, 2006 shall remain in full force and effect with the following modification. 2. The parties agree that the child will attend Bellaire Elementary School if Carlisle School District approves the request. 3. This Order has been entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. This order was entered by agreement when Rachel was starting school and the parents were both living in the Carlisle School District. It was a compromise because the father wanted Rachel to attend a private Christian school while the mother wanted her to attend public school. Bellaire Elementary School was not the school to which Rachel would normally have been assigned from the mother’s residence. The Carlisle School District agreed to this arrangement. -3- 04-4217 CIVIL TERM The mother remarried on January 31, 2009. She has moved 5.9 miles from a home in the Carlisle School District to a home with her new husband in the adjacent South Middleton School District. Before the start of the 2009-2010 school year, the father filed a petition seeking shared physical custody of Rachel so she could continue to attend Bellaire Elementary School in the Carlisle School District. The mother then filed a petition seeking an order authorizing her to move Rachel to Rice Elementary School in the South Middleton School District. At the hearing on these cross-petitions, the father represented that it was his understanding that even though the mother had primary physical custody of Rachel, Rachel could still attend Bellaire. The court questioned whether that was possible and indicated it needed evidence to that effect or a stipulation. After a recess during which counsel contacted an administrative official of the Carlisle School District and the School District’s solicitor, they agreed that Rachel could not attend the Bellaire School if she was in the primary custody of her mother who lived in the South Middleton School District. The father did not want Rachel to change from Bellaire Elementary where she has done well, was involved in numerous activities, and where she had a lot of friends. He also maintains that it would not be as convenient for him to exercise his periods of temporary physical custody if she went to Rice Elementary School. There was no dispute, however, as to the good quality of parenting provided by both the mother and father. Both agreed that Rachel is a normal, healthy, happy child; has done well in school, and is involved in numerous activities which they have both supported. Both of them have been very active in Rachel’s -4- 04-4217 CIVIL TERM life. They have both made the effort to make the custody orders work to Rachel’s advantage. Where a parent has primary physical custody of a child going to public school that child legally goes to a school in the school district where that parent lives. In the present case, the only reason the mother had to seek permission to move Rachel to a school in the South Middleton School District was the unique way in which the consent order of April 13, 2006, was written. It provided that, absent mutual consent, Rachel would attend the Bellaire Elementary School. Based on all of the evidence, we find that there is no basis for changing mother’s primary physical custody simply as a means for an eight-year-old third grader, who 2 has no special needs, to continue going to a school where she started her education. The father works weekdays for West Pennsboro Township. During the school year his 3 hours are 6:30 a.m. to 3:00 p.m., and during the summer they are from 6:00 a.m. to 2:30 p.m. His place of work is 6 miles from his home. On those days when he would pick up Rachel from Rice Elementary School he would drive 12.1 miles from his place of work to Rice and then 7.5 miles home. The Bellaire School is only 2.5 miles from his home. That additional driving time is not a significant impact when he has her overnight. The extent to which the additional travel time impacts on his quality time with Rachel on the alternate Tuesdays when __________ 2 We note that the “availability” of educational facilities is a factor to be considered in a Commonwealth ex rel. Budzowski v. Budzowski custody case. , 278 Pa. Super. 216 Budzowski (1980). In , the court determined that a child’s needs would be best met in a special education class in which the mother refused to enroll him despite a recommendation by teachers and counselors. The Superior Court affirmed the trial court’s placement of the child in the custody of his father who supported his being enrolled in the special class. 3 The mother works weekday for Carlisle Syntec from 8:00 a.m. to 5:00 p.m. -5- 04-4217 CIVIL TERM he has her at 3:00 o’clock until 7:30 p.m., was mitigated by our order of September 3, 2009, extending the return time on those Tuesdays to 8:15 p.m. We will also address the issues raised in father’s petition for reconsideration which was filed on September 15, 2009, and denied without a hearing on September 22, 2009. The father sought another hearing to allow presentation of additional evidence. He averred that the court erred by not taking the in-camera testimony of Rachel. He cites 23 Pa.C.S. Section 5303(a)(1), which provides: In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor which legitimately impacts the child’s physical, intellectual and emotional well-being. Bovard v. Baker, In 775 A.2d 835 (Pa. Super. 2001), the issue involved custody of children ages 16, 14, 12 and 10. The Superior Court stated: As this Court has stated: “It is important to note that while the express wishes of a child are not controlling in a custody decision, those wishes do constitute an important factor that must be carefully considered in determining the child’s best interests” Myers v. DiDomenico, 441 Pa.Super. 341, 657 A.2d 956, 958 (1995) (citing McMillen v. McMillen, 529 Pa. 198, 203, 602 A.2d 845, 847 (1992)) (emphasis added); Cardamone v. Elshoff, 442 Pa.Super. 263, 659 A.2d 575, 583 (1995) (same). While a child’s preference for one parent must be based on good reasons and the child’s maturity and intelligence must be taken into account, Myers, 657 A.2d at 958, our Supreme Court concluded in McMillen v. McMillen, supra, that, where the households of both parents were equally suitable, a child’s preference to live with one parent “could not but tip the evidentiary scale in favor” of that parent. McMillen, 529 Pa. at 204, 602 A.2d at 848. In that regard, there are indications that some of the children’s custodial preferences might have been at odds with the court’s order. While Rachel and Father have had a fractured relationship in recent years, and while Brittany had in the past desired to live with Father, at oral argument, counsel for the parties conceded that Brittany and Rachel were refusing to abide by the terms of the trial court’s custody order that requires them to reside with Father. Given the trial court’s conclusion in this case that both parents were -6- 04-4217 CIVIL TERM equally loving and capable, we conclude that the custodial preferences of the children may “tip the evidentiary scale” in favor of one parent or the other. We therefore hold that the learned trial court abused its discretion by concluding that interviews with or testimony from the children was unnecessary. In the present case, we repeat, absent an adequate availability issue, a child in the primary custody of a parent that goes to public school legally goes to a school in that parent’s school district. Even if Rachel, who is only age 8, who has no special needs, and is starting third grade, preferred not to leave Bellaire Elementary School, that could not tip the evidentiary scale in favor of changing the custodial relationship between her parents. Bovard Therefore, in contrast to the facts in , given Rachel’s young age and the limited issue presented to the court where the custodial arrangement was secondary to the real issue which was where she would go to school, and in contrast to “making an order for custody or partial custody” as envisioned in 23 Pa.C.S. Section 5303(a)(1), it was not error to not take the in- camera testimony of Rachel. The father averred that it was error in not taking the testimony of Deborah Salem. Deborah Salem is a licensed professional counselor. The father made an offer that she had interviewed Rachel for two hours “to ascertain the answer to a question of whether or not either party was placing any undue influence on the child,” and to her “observations as to really what has been going on in the household.” The mother’s attorney represented that Salem had gone beyond her assignment – that “what she did essentially was interview the child and talk about what she thought the resolution of this matter today would be.” Since we would not take the testimony of Rachel, any issue as to whether either party was placing any undue influence on her was not relevant. Salem is a counselor. It was not represented that -7- 04-4217 CIVIL TERM she did a full custody evaluation. There was no basis for taking her testimony as to her “observations as to what is going on in the household.” Without doing a complete custody evaluation there is no basis for an opinion to be solicited from a counselor as to what the resolution of the limited issue before the court should be. The father averred that the court erred in excluding other testimony that he sought to present. This allegation is not correct. The court never excluded any testimony other than from Rachel and Deborah Salem. (Date) Edgar B. Bayley, J. Nathan C. Wolf, Esquire For William A. Layton Samuel Andes, Esquire For Carol B. Layton :sal -8-