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HomeMy WebLinkAbout2005-67 Civil DAVID C. WALKER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 05-0067 CIVIL AMY J. FAHNESTOCK-WALKER, : Defendant : IN RE: OPINION PURSUANT TO RULE 1925 David C. Walker (father) and Amy Fahnestock-Walker (mother) are the parents of Alyssa Walker, born November 18, 1998, and Ezra Walker, born November 4, 2004. The parties were married in September of 1997 and divorced in May of 2008. During the period of separation which preceded the divorce, the mother was the primary caretaker of the children. The relationship between mother and father is embittered and can be characterized by mutual disaffection, mistrust, and lack of cooperation. The nature of their relationship prevents effective communication between the parents. We have presided over a number of proceedings in this contentious custody case. On March 11, 2009, this court entered an order under which the parents shared legal custody. The mother enjoyed primary physical custody with the father exercising custody from Tuesday to Friday. This arrangement appeared to be, at long last, satisfactory. On June 11, th 2009, however, the father filed a petition to modify the March 11 order. His living arrangement had recently changed and he sought 50/50 physical custody. Following conciliation, on August 5, 2009, an order was entered awarding equally shared physical custody and scheduling a custody hearing for October 20, 2009. On October 15, 2009, the father filed a petition charging the mother with contempt of the August order. After our October custody hearing, on October thth 28, 2009, we vacated the August 5 order and reinstated the March 11 order, restoring primary physical custody to the mother. NO. 05-0067 CIVIL th Under the August 5 order, the children were to spend every other week with each parent. Exchanges of the children took place on Mondays but proved very difficult to effectuate. The son, Ezra, refused to leave the car to go with his father on several occasions. The intervention of the police was sought on at least two instances. On all of these occasions, the father refused to take custody of his son by force. Similarly, the mother refused to be assertive with the child. Alyssa, on the other hand, was generally compliant during custody exchanges. It is well established that, in deciding custody matters, the courts of our Commonwealth consider above all else the best interests of the children. This process is based “on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well being.” Bovard v. Baker, 775 A.2d 835, 838-39 (Pa.Super. 2001). While the review of child custody determinations involves an independent judgment by the appellate court, deference is given to the sound discretion of the trial court. Siliquini v. Kegel-Siliquini, 786 A.2d 275 (Pa.Super. 2001). Father, first, contends that we abused that discretion in vacating the th August 5 order and “restoring primary physical custody of the minor children to mother, when the Court-appointed Guardian ad litem for the children advocated strongly that the best interests of the children were served by the existing custody arrangement providing for equally shared physical custody by mother and father.” Indeed, when considering an appropriate custodial arrangement, the recommendations of the guardian ad litem can become one of the determining factors. However, when the recommendations are based on factual conclusions that are not supported by the evidence or there is contrary evidence, such recommendations may be discounted. See Sexton v. Haug, 72 th D.&C.4 284, 303, affirm’d 888 A.2d 18 (Table) (Pa.Super. 2005). The guardian’s recommendation for 50/50 physical custody resulted, in part, from the perceived wishes of the 2 NO. 05-0067 CIVIL older daughter, Alyssa. However, when questioned in chambers, Alyssa made it clear that she had never expressed such a preference. In fact, it is clear that she preferred to live primarily with her mother. A shared custody arrangement requires, inter alia, a measure of cooperation between the parents. Hill v. Hill, 619 A.2d 1086 (Pa.Super. 1993); Andrews v. Andrews, 601 A.2d 352 (Pa.Super. 1991). Unfortunately, in the present case, the relationship between mother and father is not characterized by even a hint of cooperation. Instead, we are satisfied that evenly divided custody increased the tension between the parties, exposing the children to even greater trauma. th The situation appears to have been more stable prior to the August 5 order when mother had primary physical custody but father had generous periods of partial custody. In accordance with that schedule Alyssa had regularly visited with her father and Ezra visited “most of the time.” N.T. 10/20/2009, pp. 64. Another substantial factor to be considered in custody cases is any role that a parent has assumed as the primary caretaker of the child. Johns v. Cioci, 865 A.2d 931, 937 (Pa.Super. th 2004). Prior to the August 5 order, the mother had assumed the role of the primary caretaker in this case. When spending time with the mother, the children resided in their established family home where they were raised from birth. N.T., 10/20/2009, pp. 42-43. We are satisfied that our most recent order gives appropriate weight to the mother as primary caregiver. It is also hoped that, by reducing the time he is away from his mother, Ezra will find visitation with his father to be more palatable. This leads us to another issue raised by the father on appeal, namely, whether we abused our discretion in vacating the August 5, 2009, order when the mother was in contempt of court for failing to comply with that very order. We have, in fact, th cited the mother for her contempt of the August 5 order. We advised the parties, however, that 3 NO. 05-0067 CIVIL we will not proceed to an adjudication unless requested by one of the parties. It continues to be our hope that, by reinstating an order which appears to have worked, the parents may be able to set aside their mutual disaffection for the sake of their children. In any event, we know of no authority which would prevent the court from setting aside an unworkable order even though one of the parties has not followed it. December 31, 2009 _______________________________ Kevin A. Hess, J. Marianne E. Rudebusch, Esquire For the Plaintiff Paul Orr, Esquire For the Defendant :rlm 4