HomeMy WebLinkAbout2009-2425 Civil
KYLE PHILLIP SAYERS, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
AMANDA SUE WEAVER, :
DEFENDANT : NO. 09-2425 CIVIL
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Ebert, J., April 13, 2010 –
Appellant, Amanda Sue Weaver, has filed an appeal to the Superior Court
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of Pennsylvania from a custody order entered in this case on February 4, 2010.
This opinion is written pursuant to Pa.R.A.P. 1925(a). Appellant has filed a
Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)
filed March 5, 2010. Appellant states her grounds for appeal as follows:
1. The Court’s determination that Defendant, Amanda Sue Weaver,
and Plaintiff, Kyle Sayers, exercise joint physical custody of their
minor child on a week on, week off basis commencing Friday,
May 21, 2010, is against the weight of the evidence of record and
is not in the best interest of the minor child.
2. The Court erred in discounting the uncontradicted expert testimony
of the custody evaluator, without competent evidence of record,
whose custody evaluation recommended that the Mother be
awarded primary physical custody of the parties’ minor son pending
further review of the minor child’s adjustment as well as a review of
the parents’ cooperation with co-parenting decisions, which would not
occur prior to December 31, 2010.
3. The Court erred in failing to consider and/or give proper weight to the
testimony of Mother, who articulated a rationally supported basis why
she desires primary physical custody of the parties’ minor child.
4. The Court erred in awarding shared physical custody of the parties’
minor child based on the Court’s personal views and experiences,
without any basis supported by competent evidence of record,
inconsistent with M.A.T. v. G.S.T., 989 A.2d 11 (Pa.Super. 2010).
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Order of Court, February 4, 2010.
5. The Court’s determination that the parties share physical
custody of the minor child commencing May 21, 2010 on a
week on/week off schedule with no mid-week partial custody
with the other parent is contrary to the best interest of the
child and contrary to the evidence of record.
6. The Court erred in failing to comply with the requirements in
shared custody determinations by discounting evidence regarding
lack of communication between the parents and minimal efforts
on the part of Father with respect to same, including his
reluctant participation in the custody evaluation process.
See Wiseman v. Wall, 718 A.2d 844, (Pa.Super 1998).
7. Pending the shared custodial schedule on an alternating
weekly basis, the Court erred in establishing a schedule
where Mother does not have one entire weekend with the
minor child, contrary to the evidence of record.
8. The Court erred in failing to include in its Order dated
February 19, 2010, a requirement that Father reimburse
Mother $1,800.00, representing one-half of the fees
incurred as a result of the custody evaluation completed
by Deborah L. Salem, CACD, LPC, even though the Court
stated on the record that Father was to contribute one-half
of the cost of the evaluation.
PROCEDURAL HISTORY
Plaintiff Father, Kyle Sayers, filed a complaint for custody on
April 17, 2009. A conciliation conference was held on May 29, 2009, with both
parents being present and represented by counsel. The parties agreed to entry
of a custody Order which was dated June 2, 2009. A second custody conciliation
telephonic conference was held on July 27, 2009. Again both parents were
represented by counsel and the Father sought expanded custody time with the
child. A new Order of Court was entered on July 29, 2009. A third custody
conciliation conference was held on September 22, 2009, before the custody
conciliator. Both parents were again represented by counsel. A third Order of
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Court was entered on September 30, 2009, which set a custody hearing before
this Court on December 3, 2009. Both parties filed pre-trial memorandum with
the Court prior to the custody hearing.
After hearing on December 3, 2009, the Court continued the hearing until
February 4, 2010, and in the interim ordered the following:
1. A professional custody report was to be provided by Deborah Salem,
Licensed Professional Counselor.
2. Father was directed to complete parenting class.
3. Very limited expanded custody was granted to the Father which for the
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first time included some overnight visitation.
Deborah Salem, Clinical Custody Evaluator, filed her report which was
dated November 30, 2009, with the Court on December 30, 2009. On February
4, 2010, the custody hearing on the case was concluded before this Court. The
Court then filed an Order in this case on February 19, 2010, which is the subject
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of this appeal. On March 1, 2010, Mother filed a Motion for Reconsideration.
The Court denied this Motion for Reconsideration by Order dated March 8, 2010.
This appeal followed.
FINDINGS OF FACT
After conclusion of the hearings in this case, the Court makes the
following Findings of Fact:
1. The child who is the subject of this custody case is Grady James
Weaver, who was born on June 11, 2008.
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Order of Court dated December 3, 2009.
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Order of Court dated February 4, 2010.
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2. The child was born out of wedlock. Mother never placed Father’s
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name on child’s birth certificate
3. The Mother of the child is Amanda S. Weaver, age 21. She is
unmarried and is attending Messiah College. She expects to graduate on May
15, 2010, with a degree in Family and Consumer Sciences. She aspires to be a
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middle school teacher.
4. The Father of the child is Kyle S. Sayers, age 22. Father is unmarried.
He has been employed with Frank Callahan Company as a branch manager for
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the past 3 years.
5. Father graduated from high school in 2005 and was a varsity athlete in
wrestling and baseball. He is an assistant baseball coach at the Carlisle High
School. Father has attended the Harrisburg Area Community College and has
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18 credits toward becoming a physical education teacher.
6. Mother currently resides with her parents, Shannon and Barbara
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Weaver in Mechanicsburg, Pennsylvania.
7. Father currently resides with his mother and step-father, Donna and
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Gregory Roe in Duncannon, Pennsylvania.
8. The homes in which both Mother and Father live are well maintained,
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single family dwellings located in nice neighborhoods.
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Notes of Testimony 12/3/09, Page 25, 84. (hereinafter N.T. p. _)
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N. T. 12/3/09, Page 60-61, 92-93
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N.T. 12/3/09, p. 3-4.
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N.T. 12/3/09, p. 4-5.
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N.T. 12/3/09, p. 60-61.
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N.T. 12/3/09, p. 6.
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N.T. 12/3/09, p. 6, 60-61;N.T. 2/4/10, p. 32.
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9. Both parents are fit parents. Each is capable of making rational child
rearing decisions and both are willing and able to provide love and care to their
child.
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10. Mother became pregnant while attending Shippensburg University.
11. Right after the child was born, Mother told Father that the Child was
not his. Mother would not let Father see the child until he got a DNA test proving
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paternity.
12. A DNA test completed by DNA Diagnostic Center dated
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June 25, 2008, revealed that Kyle Sayers is the Father of Grady.
13. From the date of the child’s birth until the Father filed for formal
custody on April 17, 2009, Mother and Mother’s family severely restricted
Father’s access to the child. Visits were generally supervised at the Mother’s
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home and were of very limited duration. (30 – 45 minutes up to 2 – 3 hours).
14. When Father filed a complaint for custody on April 17, 2009, Mother
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became very upset and she threatened to never let Father see the child again.
15. Mother’s father requested that Father relinquish rights to Grady and
place the child in guardianship. Father was told that the Courts would decide
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how much Father would have to pay in child support. Father would not agree.
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16. Mother responded by filing for child support on May 29, 2009.
Father had previously been paying child support voluntarily in the form of both
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N.T. 12/3/09, p. 9.
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N.T. 12/3/09, p. 12-14, 72-73.
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Plaintiff’s Exhibit 2.
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N.T. 12/3/09, p. 85-86.
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N.T. 12/3/09, p. 22.
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N.T. 12/3/09, p. 74-75.
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N.T. 12/3/09, p. 23.
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cash and checks since the child was born. The eventual court order for child
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support was set at $640.00 per month.
17. A conciliation conference was held on May 29, 2009, and an order
was entered on June 2, 2009, in which Mother retained primary physical custody
with Father having expanded visitation every Tuesday and Wednesday from 5:30
p.m. until 7:30 p.m. Father was also granted visitation with the child at his
grandmother’s residence every other Saturday from 3:00 p.m. until 6:00 p.m.
Additionally, beginning on June 6, 2009, Father was allowed to have
unsupervised custody of the child every other Saturday from 2:00 p.m. until 4:00
p.m.
18. Another conciliation conference was held with an Order entered on
September 30, 2009, which allowed Father to have unsupervised custody of the
child on Tuesday from 5:30 p.m. until 7:30 p.m., Friday from 4:00 p.m. until 7:00
p.m., Saturday from 12:30 p.m. until 6:30 p.m. and Sunday from 12:30 p.m. until
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6:30 p.m.
19. Father attempted to get loans to pay for the services of Deborah
Salem, a licensed professional counselor. He was unsuccessful and Ms.
Salem’s total fees in the amount of $3600.00 have been paid by Mother’s
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family.
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N.T. 12/3/09, P. 99-100.
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N.T. 2/4/10, p. 107.
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N.T. 12/3/09, p. 97, Order of Court dated 9/30/09.
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N.T. 12/3/09, p. 78; N.T. 2/04/10, p. 8.
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20. Father has completed the six hours of parenting classes required by
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the Court’s Order of December 3, 2009.
21. Deborah Salem, a family therapist, who is a Licensed Professional
Counselor, but not a licensed psychiatrist or psychologist, was retained to
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prepare what she described as “a short form evaluation.”
22. Both parents genuinely want continuing active involvement in their
child’s life.
23. Mother and Father, being bright, articulate, and hardworking are
capable of minimum cooperation with each other.
24. Given the gradually increased visitation with the Father beginning with
the first Court Order dated June 2, 2009, through the overnight visits ordered by
the Court through January 2010, the child has formed a relationship with his
Father. The Court finds that the child recognizes both parents as a source of
security and love.
DISCUSSION
In a custody dispute, a trial court must determine what arrangement is in
the best interest of the child, conducting a “searching inquiry into all the facts and
circumstances” having an impact on the child’s physical, intellectual, moral and
spiritual well being. Johnson v. Lewis, 870 A.2d 368 (Pa.Super. 2005). The
discretion employed by a trial court in custody matters should be accorded the
utmost respect, given the special nature of the proceeding and the lasting impact
the result will have on the lives of the parties concerned. It has been said that
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N.T. 2/4/10, p. 99, Plaintiff Exhibits No. 10 & 11.
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N.T. 2/04/10, p. 10-11, 14, Defendant Exhibit #5.
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the knowledge gained by a trial court in observing the witnesses in a custody
proceeding cannot adequately be imparted to an appellant court by a printed
record. Jackson v. Beck, 858 A.2d 1250 (Pa.Super. 2004).
In reviewing the Mother’s Statement of Matters Complained of on Appeal,
her basic objections may be summarized as follows:
(1) The award of shared custody goes against the weight of evidence,
(2) The Court did not accept the expert custody evaluator’s
recommendation in total,
(3) The Court did not give proper weight to the Mother’s desires regarding
custody,
(4) The Court based its decision to award shared custody on its own
personal views and experiences,
(5) The Court did not award any mid-week visitation to either party during
the week on/week off schedule,
(6) The Court improperly discounted evidence regarding lack of
communication between the parents,
(7) The Court erred in failing to give the Mother one “entire weekend”
during the transition period from February 19 to May 21, 2010, and
(8) The Court did not enter a formal order reimbursing Mother’s family for
one half of the fee incurred for the abbreviated custody evaluation submitted by
Deborah Salem.
Prior to beginning a purely legal review of this case, this Court finds that
certain factors are influencing both the Mother and the Father. First, both
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parents are still acting somewhat like children themselves. The “Facebook”
evidence submitted by both parties establishes this point. They both still live at
home with their parents. They are both financially dependent on their parents.
They both allow their parents to control their actions with regard to this custody
matter. This Mother and Father are bright, reasonable, and capable of raising a
well balanced child if given the proper opportunity. One cannot overlook the fact
that for almost the entire first year of this child’s life, Father was accorded very
limited visitation. It wasn’t until the child was over 18 months old that the Father
even got the right to have the child for one overnight during December 2009.
Such limited involvement with a child by a fit, hardworking Father cannot be in
the best interest of the child.
A. Weight of the Evidence
As pointed out in Zummo v. Zummo, 574 A.2d 1130 (Pa.Super. 1990)
there is no presumption for or against shared custody. However, it is important
to note that the Pennsylvania legislature has recognized the value of shared
custody in appropriate cases. The legislature has proclaimed that:
it is the public policy of this Commonwealth, when
in the best interest of the child, to assure a reasonable
and continuing contact of the child with both parents
after a separation… and the sharing of the rights and
responsibilities of child rearing by both parents...
23 Pa.C.S.A. §5301.
The concept of shared legal custody has been discussed extensively by
our Appellate Courts, especially when confronted with “that most difficult of
custody determinations – the choice between two very competent and loving
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adults.” Hill v. Hill, 619 A.2d 1086, 1088 (Pa.Super. 1993). “The philosophic
premise of shared custody is the awarding to both parents of responsibility for
decisions and care of the child. In the past non-custodial, conscientious parents
have been frustrated by the second class status to which the law has assigned
them.” Id. at 1088. The criteria established for shared physical custody are: (1)
both parents must be “fit,” capable of making reasonable child rearing decisions,
and willing and able to provide love and care for their child; (2) both parents must
evidence a continuing desire for active involvement in the child’s life; (3) both
parents must be recognized by the child as a source of security and love, and (4)
a minimal degree of cooperation between the parents must be possible. Id.
As is always the case, “the trier of fact is free to believe all, part, or none
of the evidence” presented. Johnson v. Lewis, 870 A.2d 386 (Pa.Super. 2005).
In this case, after hearing over 230 pages of testimony, this Court has found as
fact that the above stated criteria have been established. The Court’s decision
was not against the weight of the evidence in this case.
Mother however relies heavily on the case of Wiseman v. Wall, 718 A.2d
844 (Pa.Super. 1998), for the proposition that given her role as the child’s
primary caretaker to date, and what she perceives as the inability of her and the
Father to cooperate to dictate that she maintain primary custody. But as stated
in Johnson v. Lewis, 870 A.2d 368 (Pa.Super. 2005), Wiseman must be viewed
in the context of its specific facts. The work/school schedules of these two
parents are very comparative. Even now, the child spends a good amount of
time in daycare given the Mother’s student teaching responsibilities and her work
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at the Giant Delicatessen. Accordingly, she is not in the same situation as the
Mother in Weisman who was home during the day and the major waking hours of
the young child. While not directly stating as much, Mother is in essence relying
on the “tender years doctrine” to establish that she should be the sole primary
caretaker of the child. Initially, given the fact that the Mother was breast feeding
the child, her having primary custody was logical. But now, the child is
approaching two years old and eating solid foods and drinking regular milk. (N.T.
12/3/09, p. 21; N.T. 2/04/10, p. 102).
This Court finds that on this record, the Father has attempted to become
involved in this child’s life from the beginning but was thwarted by Mother and
Mother’s parents’ efforts. Unlike in Weisman, where the Father initially contested
paternity, here Father has had to have a paternity test to prove that he was the
Father just to get some visitation.
Finally, having seen both of these parents in court and having heard the
testimony of Deborah Salem, Licensed Professional Counselor, the Court finds
that these parents can and will cooperate in the raising of this little boy.
Specifically, on both occasions when the parents were in court, and the Court
was addressing them directly, they both nodded in agreement that it was
important for them to cooperate, not disparage each other and work together to
raise this child. Immediately after they leave the courtroom, and return to the
tutelage of their own parents does the non-cooperation resurface. The Court
specifically asked Counselor Salem “at any time during the sessions that you
had, did you see any outright hostility between them, name calling, any of that?”
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Ms. Salem answered, “They get along extremely well sitting in the office together
that is confounding to me about being here I genuinely felt we were moving
toward an agreement, they are very respectful with each other. They don’t agree
but, actually, they do better than a lot of older folks who are so entrenched...”
(N.T. 2/4/10, p. 23)
B. Court Use of the Expert Testimony
No fair reading of this transcript indicates that this Court discounted
Counselor Salem’s testimony. In accordance with the stated policy of the
legislature highlighted above, Ms. Salem was specifically asked the following by
Father’s attorney:
Q: As a person with experience with early childhood
development you would agree that it is important
for a child’s development to have a full and loving
relationship with each parent, correct?
A: Absolutely true.
Q: To achieve that goal which is a full and loving
relationship with the parent, there has to be a
willingness on the part of each parent to recognize
the importance that the other parent plays in that
child’s life?
A: That is true also.
N.T. 2/04/10, p. 36.
Ms. Salem additionally testified that “Oddly, my perception was that my
evaluation came mostly in favor of what Kyle was asking for and less what
Amanda was asking for. I simply thought for development mentally, Grady
needed a graduated schedule.” (N.T. 2/04/10, p. 22).
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This Court did in fact provide the couple with a graduated schedule. Ms.
Salem in fact pointed out that her report provided “guidelines” not the rigid
absolute schedule Mother deems essential. Since she had not seen the couple
since completing her report on November 30, 2009, she had no information as to
how the Christmas and January overnight visits went. Basically, Ms. Salem’s
testimony came down to the fact that at the time she was actually seeing the
couple, the child had so little time with his Father that repetition of visitation was
what was required. While the Court accelerated the rate of repetitive visits
somewhat, it cannot be said that this Court totally discounted her expert
testimony. As is always the case, “the trier of fact is free to believe all, part, or
none of the evidence” presented. Johnson v. Lewis, 870 A.2d 368 (Pa.Super.
2005). Here in fact, the Court accepted Ms. Salem’s clinical impression “that
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there were no barriers to the parents ultimately sharing custody of Grady.”
While she noted that she felt that they had a lack of understanding of co-
parenting needs and poor skills at conflict resolution, the Court’s impression
based on the parents’ testimony, intelligence and demeanor, showed that these
things could be overcome without the necessity of spending more money on
additional counseling. Money which neither of them has, and money which must
then be provided by the grandparents which reinforces their belief that they have
the right to interfere.
C. Mother’s Testimony
Mother maintains that the Court did not consider or give proper weight to
her testimony which she feels “articulated a rationally supported basis why she
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Defendant’s Ex. 3, p. 2.
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deserves primary physical custody.” Again, a fact finder is free to believe all, part
or none of the evidence presented. A trial Court’s credibility determinations are
to be given considerable weight and a Court’s factual conclusions, deductions
and inferences will only be overturned where they are unreasonable in light of the
factual findings and represent a gross abuse of discretion. Johnson v. Lewis,
870 A.2d 368 (Pa.Super. 2005). Here the Court has found that the Mother is a
bright, loving parent, who will soon be graduating from college and hopefully
beginning her career as a middle school teacher. This having been said, she is
also somewhat immature and significantly under the influence of her parents both
emotionally and financially.
Mother has basically controlled the custody of Grady since the day he was
born. While Mother formally recognizes that the child needs a solid relationship
with both parents (N.T. 2/4/10, p. 95), any reading of her testimony reveals that
she wants to control and dominate custody of this child for as long as possible.
Mother has breast fed this child, slept in the same bed with this child until
immediately before the December 2009 hearing (N.T. 2/04/10, p. 86), and
basically excluded the Father from having any meaningful relationship with the
child for the first 18 months of his life.
Mother generally agrees with the idea that the Father needs more time.
The conflict between these two parents is when the Father should get that extra
time. Interestingly at the December 2009 hearing, Mother was agreeable to
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starting overnights in March 2010. The Court advanced this schedule slightly
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N.T. 12/3/09, p. 103.
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and gave the Father six overnights between December 12, 2009 and January 26,
2010. In essence this schedule amounted to Father having several evening
hours with the child once per week, and overnights every other weekend. At the
February 2010 hearing, in response to the question from her counsel, “Are you
agreeable to the existing schedule that is now in place according to the
December [3, 2009 order]? Mother responded “absolutely.” This was after she
testified to how negatively the child reacted to the Father at exchanges, that the
child smelled, that he looked grungy, that there was “a purple ring about his
penis, and that he trashes around.” (N.T. 2/4/10, p. 71-80). Previously at the
December 3, 2009 hearing, Mother testified that after the few exchanges they
had had up to that time, when the child came back from a visit with Father, he
had “become violent,” the child started hitting, slapping, biting, kicking, pulling
hair. (N.T. 12/3/09, p. 76-77). Mother did however state “I don’t want to pin that
on Kyle.”
Father of course denied all of these negative observations, and said that
once the child was past the exchange he was very pleasant and happy in his
presence. This is clearly supported by the 16 photographs in Plaintiff’s Exhibit 6,
showing the child interacting pleasantly with Father. While the Court will not say
that the Mother is deliberately distorting the truth with regard to her observations,
it is clear that she has a motive for saying negative things about Father’s care
and accordingly the Court gave significantly less weight to this negative
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testimony. The Court finds as fact that both Father and Father’s mother were
clean and well groomed. The photographs of the home in which Father lives
show that the house is neat and well kept. Deborah Salem in fact, testified to the
appropriateness of the Father’s house when she visited the child.
The Court finds the child’s negative response to the exchange, is to be
expected simply because he has not gotten to know his Father. The child has
been in his Mother’s care his entire life and she has persisted in attempting to
minimize Father’s role in the child’s life. At this child’s age, the Court finds that
more repetitious visits with the Father will allow the child to adjust appropriately.
The fact remains, that since the Father filed the complaint for custody,
which angered Mother, the child has had a very gradual increase in the time he
spends in Father’s custody. This was the exact approach which was generally
recommended by Counselor Salem, and requested by Mother when she stated
on December 3, 2009, “Over the next month or so keep with the consistent
schedule, add more time every month, month and a half, starting overnight
around March and go from there.” (N.T. 12/3/09, p. 103)
D. Role of the Court’s Personal Views and Experiences
Mother claims that the Court interjected its own personal views and
experiences and used these to formulate its opinion unsupported by any
competent evidence in the record. This Court will be the first to admit that after
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Mother brought up the fact that Father had a Driving Under the Influence arrest. The Court
counseled Father that this type of activity was unacceptable. The Court does take judicial notice
of its Court’s records which indicate the Defendant negotiated a plea agreement with the
Commonwealth whereby he pled to a non-vehicle code misdemeanor for which he was
sentenced to a $300 fine and six months unsupervised probation on February 18, 2010. Given
this resolution and consideration of the Father’s work history and coaching activities, the Court
did not find that the DUI arrest detracted from the Father’s fitness.
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30 years experience in law, most of which involved trying cases, that one does
consider their personal experiences in life to evaluate the human situation. In
essence, this is what we instruct fact finders in every jury case when we state “In
deciding the facts you may properly apply common sense and draw upon your
own everyday practical knowledge of life.” Pa.SSJI (Civ.) 20.00 Para. 4.
Statements were made by the Court that it understood that young people
sometimes make mistakes (referring to Father’s DUI arrest, the various
Facebook entries by both parties), and that young people are frequently
remaining longer in their parents’ homes. These insights had nothing to do with
the final outcome of this case.
The Court did state one view to the effect that “I have heard it countless
number of times, from Phds who come in here and testify in cases like this, the
best interest of the child are always promoted by the fact that a child has a good
working relationship with both parents. So that is absolutely essential.” (N.T.
12/3/09, p. 103-104). However, it cannot be said that this view was unsupported
by the evidence. As stated above, it was in fact the view of the licensed
professional counselor, Deborah Salem. Moreover, it has been recited by the
legislature that “it is the policy of this Commonwealth, when in the best interest of
the child, to ensure a reasonable and continuing contact of the child with both
parents after a separation… 23 Pa.C.S.A. §5301.
Mother’s reliance on M.A.T. v. G.S.T., 989 A.2d 11 (Pa.Super. 2010) here
is misguided. In that case, the trial court granted primary physical custody of a
child to the ex-husband. The case’s holding is founded on the core idea that the
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trial court applied an evidentiary presumption against a lesbian mother. The trial
court actually rejected Deborah Salem’s report, (the same counselor who
testified in the case at bar), who was then recommending shared custody. The
Court disregarded Salem’s recommendation for shared custody and instead
awarded primary physical custody of the child to the Father who was a
heterosexual. The Court stated “it’s based on my many years on the bench, my
own personal experience as a parent, a grandparent, and a foster parent” that in
his view shared custody is seldom, if ever, in the best interest of a school age
child.
In all candor M.A.T. v. G.S.T. has absolutely no application to the facts
presented in this case. This Court in fact accepted most of what Deborah Salem
recommended and did not substitute its personal views in total contravention of
what the evidence established.
E. No Mid-week Custody
One cannot lose sight of the fact that by the time set to begin week
on/week off custody on May 21, 2010, Mother has clearly had the vast majority of
custody of this child. Given the distances between the homes of the Mother and
Father, the Court found that the child’s best interest would be promoted by
settling into a routine without excessive travel. Contact between the child and
the noncustodial parent is easily facilitated by the telephone and the internet. It
is obvious from this record that both parents seem to know how to place pictures
of themselves on the internet and transmit them to others for viewing.
Additionally, given the Mother’s new career, and her statement that she needed
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to get out of school, graduate and get a job, the Court felt that her personal
interest would be facilitated by reliance on a schedule that did not require extra
interaction between her and Father. In the most concise manner in which it can
be stated, it is now time for these two young people to parent equally.
F. Lack of Communication Between Parents
The Court has found as fact that these two parents can cooperate.
Deborah Salem said they can cooperate. The Court viewed their demeanor and
found that without their parents’ influence, they are capable of cooperating. It is
true that Father has been somewhat reluctant to engage Mother, but this is
definitely based on his resentment about the way he has been treated with
regard to custody to date. The Court has recommended to the couple that they
keep a notebook with regard to feedings, health problems, etc., in order to
promote their exchange of information about the child. More importantly, when
both accept their role as an equal parent, cooperation will be forthcoming. These
parents are bright, energetic, and hard working. Once the tension of who has
what advantage over whom is eliminated, they will settle down into a life of
cooperation which will be required for the next 16 years.
G. No Entire Weekend for Mother from February 19 to May 21, 2010
Again, the Mother has had almost exclusive custody of this child from his
birth until February 19, 2010. For a period of two months, in order to expand the
repetitious exposure of the child to his Father, the Court did not give Mother a full
weekend. Suffice it to say, she does have one weekend evening every other
week. Even more compelling is the fact that Mother seems to totally ignore the
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fact that she has continued primary custody of the child every weekday every
week. The logic of this allegation or error escapes this Court.
H. Payment of Deborah Salem’s Bill
Deborah Salem, the licensed professional counselor, submitted a bill for
what she called a “short form evaluation” for $2800.00. (N.T. 2/04/10, p. 14, 26).
Additionally, she charged $800.00 to appear pursuant to Mother’s request and
testify at the hearing on February 4, 2010. (N.T. 2/04/10, p. 27). Initially, it was
agreed that the parents would split the $2800.00 evaluation fee. All of the fees to
date have been paid to Ms. Salem by Mother’s parents. Mother maintains that
this money was a loan to her from her parents and that she will have to pay this
money back. (N.T. 2/04/10, p. 94). At the conclusion of the December 3, 2009
hearing, given the Father’s limited income and the fact that he was paying
$640.00 a month child support, the Court ordered the Father to prepare a
payment plan to reimburse the Mother for the evaluation cost after he had
completed the 6 parenting classes he was ordered to attend. These classes
were an additional expense to Father not shared by Mother. At the conclusion of
the February 4, 2010 hearing, after argument over whether Father was
responsible for the additional $800.00 for Ms. Salem’s testimony that date, the
Court agreed to divide the total cost in half for a total of $1800.00 to each party.
This was done because Ms. Salem testified that it was her perception that her
“evaluation came mostly in favor of what Kyle was asking for and less what
Amanda was asking for.” (N.T. 2/04/10, p. 22).
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During the hearing, Father indicated that he had tried to get loans to pay
for these expenses but was unsuccessful. Mother is correct that the Court did
not formally enter into the custody order of February 19, 2010, that the Father
pay the $1800.00 which is in essence owed to her parents. The Court has stated
on the record that Father owes the $1800.00, and that final payment of the
$1800.00 will be required. Since this issue did not affect in any way the Court’s
decision regarding what was in the best interest of the child it was not placed in
the custody order. This matter will be easily and formally resolved after the
custody issue is settled, and the Father’s ability to pay, based on his employment
and child support obligations are determined.
CONCLUSION
Based on all of the above, this Court has determined that the best interest
of this child will be promoted by shared custody on a week on/week off basis
between these two equally fit, bright, and industrious parents. This matter will
have to be revisited when the child begins his mandatory education and an
appropriate full time school district will have to be determined.
Until then the child will have at least three years to develop a loving,
supportive relationship with both of his equally fit parents. Shared custody in this
case is in the best interest of Grady. This Court committed no error in this case.
By the Court,
M. L. Ebert, Jr., J.
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Lisa Marie Coyne, Esquire
Attorney for Plaintiff
Christine T. Brann, Esquire
Attorney for Defendant
bas
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