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HomeMy WebLinkAbout2009-5710 Civil SHERRY BYRNE, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : GREGORY BYRNE, : DEFENDANT : 09-5710 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., December 4, 2009:-- Sherry Byrne and Gregory Byrne are the parents of one child, a daughter, MichaelAnn Byrne, age 12, born December 12, 1996. On August 18, 2009, the mother instituted a suit seeking primary physical custody of MichaelAnn after the father, on August 15, 2009, removed her from the marital home in Mechanicsburg, Cumberland County, into his new home in Fayetteville, Franklin County. The mother filed a petition for emergency relief in which she sought the immediate return of MichaelAnn to her home. Following a hearing, an order was entered on August 27, 2009, in which the petition was denied. On October 15, 2009, a temporary order was entered following conciliation that provides the mother and father with shared legal custody, with the mother having MichaelAnn every weekend from Friday at 5:00 p.m. until Sunday at 1 5:00 p.m. A hearing on the merits of the custody dispute was conducted on November 2 12, 2009. MichaelAnn suffers from a developmental disability, Rett Syndrome, epilepsy __________ 1 Additional provisions cover a right of first refusal and a holiday schedule. 2 The testimony taken at the hearing for emergency relief was incorporated into the merits hearing. 09-5710 CIVIL TERM and mental retardation, the severity of which is profound. She has frequent seizures that are hard to control. She is non-verbal. She communicates by laughing, giggling, stomping her feet, crying and screaming. As a result of her condition, starting last year while she was in the fifth grade, her gross motor skills are declining. This makes it difficult for her to walk. MichaelAnn’s condition requires a specific high fat, low carbohydrate ketogenic diet and specific amounts of liquids each day. She is on an involved regimen of medications. The topicals that are used for her hygiene must be of a specific type. MichaelAnn receives all necessary medical care from numerous providers.She receives many therapies: physical, occupational, speech, vision, orientation mobility and music. Both the mother and father have been very active in obtaining all of the services that MichaelAnn needs. Before the 2009-2010 school year, MichaelAnn went to school for five years in the Cumberland Valley School District. Because she needs direct supervision twenty- four hours seven days a week, an aid goes to school with her, attends all of her activities, and comes home with her. At Cumberland Valley, MichaelAnn had an Individual Education Plan (IEP). All of her special needs programs were conducted in a school attended by children with and without disabilities.3 For the 2009-2010 school year, the father enrolled MichaelAnn into sixth grade in the Chambersburg Area School District. The School District initially adopted the 3 Given her disabilities, the school year for MichaelAnn extends into July each year which is beyond that for children without her needs. -2- 09-5710 CIVIL TERM Cumberland Valley School District’s IEP, and then conducted its own IEP. Both the mother and father participated in this process but their positions were diametrically opposed. Lincoln Intermediate Unit, which covers multiple school districts including the Chambersburg Area School District, operates the Franklin Learning Center. This Center is a specialized educational unit for children with various types of disabilities. The father believes it is in the best interest of MichaelAnn to attend this unit. The mother is opposed and wants her to continue in a school that children with and without disabilities attend. The Chambersburg Area School District issued its IEP in which it concluded that MichaelAnn’s best needs would be met by moving her to the Franklin Learning Center. The mother filed a due process appeal for which a hearing has been set. MichaelAnn continues to attend a school where children with and without 4 disabilities are enrolled. The father is a golf course superintendent and director of facilities at the Chambersburg Country Club. His home is a short drive to his place of employment. He works twelve days on with two days off. During the golf season he typically works ten to twelve hour days. During the off season, it is closer to eight hours a day. His employer has been flexible in allowing him to adjust his schedule if there are things he must do for MichaelAnn. Right now in the off season he is working from 7:00 a.m. to 3:00 p.m. He and MichaelAnn are both early risers, about 4:30 a.m. He makes __________ 4 Counsel represented that if the decision to have MichaelAnn attend the Franklin Learning Center is upheld, the mother will have further avenues of appeal which will result in the continuation of the status quo until there is final decision. -3- 09-5710 CIVIL TERM MichaelAnn breakfast and gets her completely ready for school. An aid, a person who had been -4- 09-5710 CIVIL TERM working for the family when they were together in Mechanicsburg, arrives at 6:30 a.m., and the father leaves for work. The aid takes MichaelAnn to school and brings her home. When the father arrives home at around 3:30 p.m. the aid leaves. The father then does things with MichaelAnn that she can enjoy. He makes dinner and he also makes MichaelAnn’s food for the next day. They are both in bed by 8:00 p.m. The mother continues to live in what was the marital residence in Mechanicsburg. She and the father moved to Pennsylvania in 1999. Before that the mother had worked for many years with adults and children with developmental disabilities in daycare programs and in group home settings. After the move, the mother stopped working outside of the home. She subsequently developed numbness and pain and was diagnosed with multiple sclerosis. A few years ago she was diagnosed with fibromyalgia and degenerative disk disease. Her life is much affected by these conditions. For example, she is unable to bathe MichaelAnn. The father believed that it was critical to move MichaelAnn into a better, safer and cleaner environment. He also wants her to receive educational services that he believes are better suited for her extreme disability. The mother kept a cluttered and dirty home. It was piled with junk. Often there was hardly room on a table to place a meal for MichaelAnn. With the father working long hours, he still came home and made the evening meal. He typically did all of MichaelAnn’s laundry. The mother would seldom fold it and put it away even after it was washed. The mother seldom cleaned. There was a dog that the mother would allow to urinate on the carpet and defecate on -5- 09-5710 CIVIL TERM the floor. It was frustrating for the father who had to do almost everything himself. An aid came in the morning, bathed MichaelAnn, got her dressed and ready for school. The mother did give MichaelAnn her medications. When MichaelAnn got home from school an aid continued to care for her until the father got home after about a half hour commute from Chambersburg. The father wanted to get MichaelAnn into a school that was totally dedicated to providing for her special needs. He visited the Franklin Learning Center and saw the special facilities and tools available to care for disabled children. The center has an adapted playground which is setup for children with special needs. MichaelAnn likes to play. Therapists are on the premises all day at the center rather than attending to separate facilities as the therapists do in the Cumberland Valley School District. Having regular physical therapy is now even more essential to MichaelAnn as her motor skills are declining. The Franklin Learning Center did not have music therapy which was being providing in Cumberland Valley, and which both parents agree is very good therapy for the type of disability that MichaelAnn has. However, music therapy is now available to MichaelAnn. The father acknowledges that the mother has been a very strong advocate for MichaelAnn and did a great job in taking care of things like doctor appointments and ensuring that medications are appropriate and timely given. The mother believes, and she presented a professional witness who concurred, that generally, it is beneficial for disabled children to be around their non-disabled peers – that eventually they make a -6- 09-5710 CIVIL TERM better adjustment to post-school life. Neither, however, explained how that is applicable to MichaelAnn who is non-verbal and has such a severe disability that even when she completes her schooling she will never have any post-school life other than the around the clock care that must be provided by her parents. The mother acknowledges that MichaelAnn adores her father. The father has been working to get on top of all of the things that are necessary for MichaelAnn’s care. He gives MichaelAnn all of the medications she needs. He believes that MichaelAnn is doing better since the move to Chambersburg. The big seizures have declined and her bowel movements have become more regular. She is laughing and giggling more. He gives her a bath on a daily basis which did not always happen before. The mother would not allow her long hair to be cut which made it more difficult to keep it clean. The father had her hair cut and it has made it a lot easier to take care of. The father keeps a clean and uncluttered house as attested to by the testimony of his aid. He believes that the new environment has improved MichaelAnn’s living conditions and her overall heath. He is hopeful that things will improve even more if he is able to get her into the Franklin Learning Center. Sawko The resolution of a custody case rests on the best interest of the child. v. Sawko, 425 Pa. Super. 450 (1993). The best interest standard, decided on a case- by-case basis, considers all factors which legitimately have an effect upon the child’s Id. well-being. The father has a demanding work schedule. “Work schedule” may not deprive a parent of custody if suitable arrangements are made for the child’s care in the -7- 09-5710 CIVIL TERM Johnson v. Lewis, parent’s absence. 870 A.2d 368 (Pa. Super. 2005). In the present case, the father can better care for MichaelAnn then the mother. The move to Chambersburg has actually reduced the time an aid is used for the care for MichaelAnn. It is to the benefit of MichaelAnn that her father is now able to do everything for her except when she is in school. The move to the father’s home in Chambersburg has increased the overall quality of parental care from what it was in Mechanicsburg. It has created a more stable environment for MichaelAnn. The improved conditions are in her best interest. We agree with the father, and the Chambersburg Area School District IEP, that MichaelAnn’s education and well-being will be further enhanced by her attending school at the Franklin Learning Center. Primary physical custody will be awarded to the father. The choice of schooling should be made by the primary custodian. Although we will grant the mother shared legal custody, as she should continue to have input into the important decisions involving MichaelAnn’s life, we will grant the father limited sole legal custody for the purpose of determining where she shall attend school while living in his home. The mother should continue to have periods of temporary physical custody of MichaelAnn. We actually believe that she will be better at performing parental care in this role than she was previously. Importantly, the father fully supports the mother’s continued active involvement in MichaelAnn’s life. At the hearing, with both parties seeking primary custody, they did not address in any significant way an order of temporary custody depending on who was successful in obtaining physical custody, -8- 09-5710 CIVIL TERM other than the father saying that if he was successful he would like some weekends with MichaelAnn. We will provide temporary custody for the mother as set forth in the interim custody order following conciliation. We anticipate that from time to time they will make adjustments to their mutual benefit. ORDER OF COURT IT IS ORDERED: AND NOW, this day of December, 2009, (1) The order of August 27, 2009, except for paragraph 2, and the order of October 15, 2009, are vacated and replaced with this order. (2) Primary physical custody of MichaelAnn Byrne, born December 12, 1996, is awarded to her father, Gregory Byrne. (3) The father and mother shall have shared legal custody of MichaelAnn except for a determination of where MichaelAnn goes to school when she is living with her father. As to that limited decision, father is granted sole legal custody. (4) The mother, Sherry Byrne, shall have temporary physical custody of MichaelAnn: (a) Every other weekend from Friday at 5:00 p.m. until Sunday at 5:00 p.m. Father shall transport MichaelAnn to therapy and mother shall pick her up from therapy at Living Unlimited in Carlisle on Friday at 5:00 p.m. and the parents shall exchange custody again at 5:00 p.m. on Sunday at the Giant supermarket in Mechanicsburg. (b) At such other times as the parties shall agree. (5) In the event that there is no school or MichaelAnn is ill, and father is unable to care for her, mother has the right of first refusal for caring for MichaelAnn. If father cannot get off -9- 09-5710 CIVIL TERM of work to care for MichaelAnn, he shall contact mother first to offer custodial time to mother. (6) For Thanksgiving, father shall have MichaelAnn Thanksgiving Day and mother shall have Friday the day after Thanksgiving from 9:00 a.m. until Sunday at 5:00 p.m. For Christmas, mother shall have from noon on December 24 until noon on December 25. Father shall have from noon on December 25 until noon on December 26. By the Court, Edgar B. Bayley, J. Anne MacDonald-Fox, Esquire Rachel D. Allen, Certified Legal Intern For Sherry Byrne Susan K. Candiello, Esquire For Gregory Byrne :sal -10- SHERRY BYRNE, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : GREGORY BYRNE, : DEFENDANT : 09-5710 CIVIL TERM IN RE: CUSTODY ORDER OF COURT IT IS ORDERED: AND NOW, this day of December, 2009, (1) The order of August 27, 2009, except for paragraph 2, and the order of October 15, 2009, are vacated and replaced with this order. (2) Primary physical custody of MichaelAnn Byrne, born December 12, 1996, is awarded to her father, Gregory Byrne. (3) The father and mother shall have shared legal custody of MichaelAnn except for a determination of where MichaelAnn goes to school when she is living with her father. As to that limited decision, father is granted sole legal custody. (4) The mother, Sherry Byrne, shall have temporary physical custody of MichaelAnn: (a) Every other weekend from Friday at 5:00 p.m. until Sunday at 5:00 p.m. Father shall transport MichaelAnn to therapy and mother shall pick her up from therapy at Living Unlimited in Carlisle on Friday at 5:00 p.m. and the parents shall exchange custody again at 5:00 p.m. on Sunday at the Giant supermarket in Mechanicsburg. (b) At such other times as the parties shall agree. (5) In the event that there is no school or MichaelAnn is ill, and father is unable to care for her, mother has the right of first refusal for caring for MichaelAnn. If father cannot get off of work to care for MichaelAnn, he shall contact mother first to offer custodial time to mother. 09-5710 CIVIL TERM (6) For Thanksgiving, father shall have MichaelAnn Thanksgiving Day and mother shall have Friday the day after Thanksgiving from 9:00 a.m. until Sunday at 5:00 p.m. For Christmas, mother shall have from noon on December 24 until noon on December 25. Father shall have from noon on December 25 until noon on December 26. By the Court, Edgar B. Bayley, J. Anne MacDonald-Fox, Esquire Rachel D. Allen, Certified Legal Intern For Sherry Byrne Susan K. Candiello, Esquire For Gregory Byrne :sal -2-