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HomeMy WebLinkAbout2002-5525 Civil LISA G. MICKEY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. RODRIGO J. DIAZ, DEFENDANT 02-5525 CIVIL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., November 29,2005:-- Lisa Mickey, age 41, and Rodrigo Diaz, age 40, are the parents of Christopher Diaz, age 5, born March 2, 2000. After a hearing on the merits, the following order was entered on October 28, 2005: (1) All prior custody orders are vacated and replaced with this order. (2) Lisa G. Mickey and Rodrigo J. Diaz shall have joint legal custody of Christopher Diaz, born March 2, 2000. (3) Lisa Mickey shall have primary physical custody of Christopher who may attend school in the jurisdiction of the mother's residence. (4) The father shall have temporary physical custody of Christopher as follows: (a) During the school year, every two out of three weekends from Friday after school until Sunday evening at 8:00 p.m., or Monday evening at 8:00 p.m. if Monday is a school holiday. (b) During each summer school vacation period, every two out of three weeks with exchanges on Sunday evening at 8:00 p.m. If the mother chooses she may pick up Christopher at the father's residence during the time that he is working and return him when the father arrives home. (5) The parents shall alternate having Christopher each year for Thanksgiving. For 2005, he will be with the parent who did not have him for Thanksgiving 2004. (6) Every year: (a) The father shall have Christopher from noon on Christmas Eve until noon on Christmas Day and the mother shall have him from noon on Christmas Day until the father's next period of temporary physical custody. (b) The father shall have Christopher from noon on New Year's Eve until noon on New Year's Day, and the mother shall have him from noon on New Year's Day until the father's next period of temporary 02-5525 CIVIL TERM physical custody. (c) Christopher shall always spend Mother's Day with his mother and Father's Day with his father. The father filed a direct appeal from this order to the Superior Court of Pennsylvania. This opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925. The mother and father were married on December 21, 1996. They moved to Carlisle, Cumberland County, from Harrisburg in May 2001. They separated on November 14,2002, and were divorced on November 2,2004. On November 27, 2002, when both parents lived in Carlisle, a temporary custody order was entered by stipulation providing them with shared legal custody of Christopher. The father was to have Christopher: (a) Every other weekend commencing Friday at 6:00 p.m. until Sunday at 8:00 p.m. Said weekend visitation to commence November 29,2002. (b) Every Tuesday, from after work until the commencement of work the following morning. Father shall pick the child up after daycare on Tuesday evenings and return the child to daycare on Wednesday morning. (c) Every Thursday from after work until 8:00 p.m. Father shall pick the child up from daycare on Thursday and return the child to mother. (d) At such other times as the parties may agree. The mother was to have Christopher at all other times. Following a custody evaluation, the parents agreed to a custody order entered by stipulation on July 10, 2003. They were awarded shared legal custody. The sharing agreement was entered for holidays, alternating one week periods in the summer until Christopher reached school age, and the following 50-50 shared arrangement during other periods: -2- 02-5525 CIVIL TERM a Alternate weekends. b. Alternate for four remaining days, with each party having two consecutive days. This schedule shall commence on Tuesday, July 8, 2003, with Father having custody per the schedule contained herein. A two week schedule would alternate according to subparagraphs (a) and (b) as follows: S M T W R [sic] F S Week 1 Father Mother Mother Father Father Mother Mother Week 2 Mother Father Father Mother Mother Father Father c. The party beginning herlhis period of custody shall pick-up the child from daycare, unless otherwise agreed to by the parties. Likewise, the party concluding herlhis period of custody shall drop-off the child at daycare, unless otherwise agreed to by the parties. d. If the daycare is closed or Christopher is not in daycare the parties shall refer to paragraph 2 (b) to determine the custodial parent, and transfer of custody as set forth in paragraph 2 (b) will occur at 8:00 am. by having the custodial parent pick Christopher up at the non- custodial parent's home. In the event that the non-custodial parent is available to assume custody and the custodial parent would otherwise place Christopher in daycare, or the custodial parent is not available to provide custody, the non-custodial parent may have the right of custody. The period of custody under this provision only shall occur from 8:00 am. to 5:00 p.m., unless the custodial parent becomes available prior to 5:00 p.m. The parties shall provide reasonable notice of their intent to exercise custody under this provision. Although not completely trusting of each other, the parents have been flexible with this schedule. Both parents are capable and loving to Christopher, and he loves them. He is a happy little boy. He gets along well with his step-parents. The parents initially enrolled him in a Magic Years daycare facility in May, 2001. At the time of the hearing in October, 2005, Christopher was in kindergarten at that facility.1 Both parents have been involved in the program. Christopher's speech can be difficult to understand, and has some difficulty with fine motor skills. He can be uncommunicative 1 This is his second year of kindergarten. He attended kindergarten at Magic Years when he was four years old. -3- 02-5525 CIVIL TERM with some people. The Capital Area Intermediate Unit in Cumberland County, after testing and review, relates this situation to slow maturation. The father remarried on June 11,2005. He purchased a home in Carlisle six months ago. If Christopher were to live with him he would go to the Mooreland Elementary School in Carlisle. The father works weekdays from 8:00 am. until 4:30 p.m. as a supervising attorney for the Pennsylvania Liquor Control Board in Harrisburg. His wife, Sara, age 37, is an associate art history professor at the Harrisburg Area Community College. The mother worked for the Department of Revenue for eleven and a half years. She married Dwight Mickey, age 46, on April 30, 2005. He operates a family owned orchard and retail farm market on ninety acres near Chambersburg in Franklin County. It is about a forty-five minute drive to the father's home in Carlisle. The mother moved to Mickey's home on June 11, 2005, just before ending her employment as a hearing examiner.2 She now is a housewife, and does not intend to return to outside employment. As a result of the order entered on October 28, 2005, Christopher was to transfer to afternoon kindergarten at the Hamilton Heights Elementary School which is right behind the property on which the mother lives. The mother intends to be a parent volunteer in Christopher's classroom. The father testified that one of the reasons he purchased a home in Carlisle was because he anticipated sharing physical custody of Christopher who would attend 2 The mother grew up in Mercersburg, Franklin County. The father's parents live in the -4- 02-5525 CIVIL TERM school in Carlisle where he thought the mother would continue living. The father wants Christopher to attend school in Carlisle. He testified that he believes that maximum exposure to both parents is good for Christopher. Because the mother moved to Chambersburg, he proposed that he have primary physical custody during the school year, with the mother having two of every three weekends and alternate weeks in the summer. The mother sought primary physical custody of Christopher. She notes that since she is no longer working she can provide him full-time care. She states that if she had primary physical custody, it would eliminate any requirement for a before and after school daycare program. Given Christopher's slow maturation, she believes that the stability of living in one home during each school week would be good for him, and that she could be actively involved at his school. Pauline Wallin, Ph.D., a psychologist, performed a custody evaluation in February-March, 2003, and did a re-evaluation in July-August, 2005. She believes that Christopher may have some challenges in his early school years. She testified that Christopher is close to both parents. She believes he should have frequent access to both. She recommended that Christopher live with the father during the school year, spending two out of three weekends with the mother and one night each week with her taking him to school in Carlisle the next day. In Swope v. Swope, 689 A.2d 264 (1997), the Superior Court of Pennsylvania Chambersburg area. -5- 02-5525 CIVIL TERM set forth the standard in Pennsylvania that "[t]he paramount concern in a child custody case is the best interest of the child, based on a consideration of all factors that legitimately affect the child's physical, intellectual, moral and spiritual well-being." We are to consider the opinion offered by an expert but are not obligated to follow that opinion. Rinehimer v. Rinehimer, 336 Pa. Super. 446 (1984). We did not treat this case as an intra-state relocation requiring an analysis under Gruber v. Gruber, 400 Pa. Super. 174(1990). See B.K. v. J.K., 823 A.2d 987 (Pa. Super. 2003). The distance between the current homes of the mother and father is no greater than the distance between Shippensburg in the western part of Cumberland County and Camp Hill in the eastern part of the county. This court has jurisdiction to resolve the current dispute between the parents. It is the fact that the parents now live in separate school districts that makes a continuation of the shared custody arrangements impracticable. This was not an easy case to resolve because both parents are capable and loving to Christopher. The shared custody arrangement worked during his early years. Although the mother now lives in Chambersburg, rather than Carlisle, we believe that given the probability that Christopher will have some difficulty in school weighs heavily in favor of his living in the home of one parent during the school week. Living in the mother's home eliminates the need for before and after school daycare. This will best provide the stability that Christopher needs. We provided the father with extensive periods of temporary physical custody - every two out of three weekends during the -6- 02-5525 CIVIL TERM school year, every two out of three weeks during the summer, and various holidays- that will ensure his continued active involvement in Christopher's life. For the foregoing reasons, the custody order of October 28, 2005, was properly entered. (Date) Edgar B. Bayley, J. Taylor Andrews, Esquire For Lisa G. Mickey Marylou Matas, Esquire For Rodrigo J. Diaz :sal -7-