Loading...
HomeMy WebLinkAbout97-4599 civilROBERT TODD LINDSAY, PLAINTIFF V. LORI E. JONES, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-4599 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT BAYLEY, J., January 19, 1999:-- Robert T. Lindsay, age 26, and Lori E. Jones, age 23, are the parents of Collin T. Lindsay, age one, born April 7, 1997. The parents did not marry. The father lives with his parents in their home in Newville, Cumberland County. The mother lives with her parents in their home in Carlisle, Cumberland County.1 The parents met in February of 1993. A month before Collin was born in April, 1997, they began living together in an apartment. The mother took six weeks of maternity leave and then worked part-time at a Dairy Queen. The father took two weeks of paternity leave. On August 8, 1997, the mother moved into her parents' home with Collin. A short time later the father moved into his parents' home. Following their separation, the mother allowed the father to see Collin only inside her home at limited times. The father testified he found a picture of Collin with Kevin Wiley, and a paper on which was written "Collin Wiley."2 That prompted him to 1. Also living in the home where the mother lives is her brother who is a senior in high school and a sister who is a sophomore in high school. Another brother who is attending Penn State lives in the home during the summer. 2. The mother is now engaged to be married to Kevin Wiley on September 11, 1999. 97-4599 CIVIL TERM have a paternity test conducted. The test determined that he is Collin's father. He sought custody of Collin and the parties entered into a stipulated custody order of January 12, 1998. The order provided that the father and mother have shared legal custody of Collin, that the mother has primary physical custody, and that the father has temporary physical custody on the following schedule: During January 1998, the Father shall have custody of the Child for one four-hour period each week. During February 1998, the Father shall have custody of the Child during alternating weeks, beginning the first week in February, for two four-hour periods and during the interim weeks for one four- hour period. During March 1998, the Father shall have custody of the Child, during alternating weeks, beginning the first week of March, for one twenty-four hour period and during the interim weeks for one eight-hour period which shall be scheduled during the daytime on a weekday. Beginning in April 1998 and thereafter on an ongoing basis, the Father shall have custody of the Child, during alternating weeks for one forty-eight hour period, beginning the first week in April, and during the interim weeks for one eight-hour period which shall be scheduled during the daytime on a weekday. The order also set a schedule for holidays which has been modified by an order of November 19, 1998. The father now regularly sees Collin under the provision of paragraph 3 D of the order of January 12, 1998, during alternating weeks for one forty-eight hour period and during the interim weeks for one eight-hour period during the daytime on a weekday. The father now seeks an award of shared physical custody of Collin on an alternate week basis. The mother opposes any change to the current custody orders. A hearing was conducted on January 14, 1999. The mother works Monday through Friday from 8:30 a.m. to 5:00 p.m. as a -2- 97-4599 CIVIL TERM medical assistant for the Physicians for Womens Health Service in Lemoyne, Cumberland County. The father is employed full-time by Cumberland County as a 911 dispatcher. He works a 3:00 p.m. to 11:00 p.m. shift on a four week schedule. In weeks one and two he has Sunday and Monday off, in week three he has Tuesday and Wednesday off, and in week four he has Friday and Saturday off. This schedule provides him four days off in a row every four weeks on Friday and Saturday of week four and the Sunday and Monday of week one. The father also works as a part-time police officer for the Mid-Cumberland Valley Regional Police Department. He has been averaging about twelve to fifteen hours most weeks working one to two shifts which are normally at night. During the week when the mother has Collin she takes him to a sitter in Carlisle at 8:00 a.m. There are three other children that the sitter takes care of in her home. The sitter, who has been baby-sitting Collin since he was six months old, now has him three days one week and four days the next week from approximately 8:00 a.m. until 5:20 p.m. The father has Collin on the other weekdays as well as some weekend days. The father is totally involved with Collin when he has him. The father's sister lives near his home and she has children ages 5 and 2 who often play with Collin when he is with his father. The father receives his monthly schedule from Cumberland County about two weeks before the beginning of the next month. He and the mother then set the days that he is to have Collin during the next month consistent with the custody order. -3- 97-4599 CIVIL TERM Both parents testified that the communication between them to set the schedule has at times been less than cooperative. The mother believes that the current custody order provides the father sufficient time with Collin consistent with his work schedule. She also believes that Collin is well-adjusted to his current routine and that it should not be disrupted. When asked whether she believed the relationship between the father and his son was important, she answered "to some extent." The father testified that he has been frustrated with the mother's unwillingness to allow him to see more of Collin which he believes is in Collin's best interest. He seeks shared physical custody on an alternate week basis. The paternal grandmother works weekdays from 8:00 a.m. until 4:30 p.m. and is home by 5:15 p.ml The paternal grandfather works Tuesday through Thursday so he is home on Monday. The paternal great-grandmother, who is active and in her seventies, lives about a mile and a half away. The father would try not to work his part-time police job during the weeks he would have Collin, which may be possible. On days that he is working his 3:00 p.m. to 11:00 p.m. shift for Cumberland County, he would take care of Collin until he went to work. On Mondays the paternal grandfather would take care of Collin when the father left for work at approximately 2:30 p.m., both paternal grandparents would do the same on Saturdays and Sundays when he works. On Tuesdays through Fridays when he works his paternal great-grandmother will take care of Collin until the paternal grandmother comes home from work. Collin is a healthy, happy one-year-old. Both parents love Collin, are fit, and -4- 97-4599 CIVIL TERM have much to offer him. Collin has loving maternal and paternal grandparents who provide stability and support to the mother and father who both still lack some maturity. We are satisfied from all of the evidence that Collin is as comfortable in the home of his father as he is in the home of mother.3 The father is as devoted to Collin as is the mother. In a custody proceeding the paramount concern is the welfare and what is in the best interest of the child and all considerations, including the rights of the parents, are subordinate to the child's physical, intellectual, moral, spiritual and emotional well-being. Plowman v. Plowman, 409 Pa. Super. 143 (1991). In In re Wesley J.K., 299 Pa. Super. 504 (1982), the Superior Court of Pennsylvania stated: 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. It was difficult to develop healthy relationships to a child where their role may have been limited to a weekend parent whose counsel was not sought in decisions affecting the child. Shared custody allows both parents [sic] input into major decisions in the child's life. (Footnote omitted.) In Wesley, the Court suggested guidelines for determining when shared custody is appropriate. Both parents must be fit and capable of making mature child-rearing decisions, and must be willing to provide care and love for their child. Both must express a desire for continued active involvement in the child's life. The child must recognize both parents as sources of love and security. A minimal degree of cooperation between the parents is necessary, although this feature does not 3. Both parents expressed what is a universal complaint by parents in a custody case that Collin is agitated when he returns from being with the other parent. -5- 97-4599 CIVIL TERM translate into a requirement that the parents have an amicable relationship. All of these elements are present in the case sub judice. The routine that has been established for Collin with the mother's baby-sitter does not outweigh the benefit to Collin that will come from a more significant and stable relationship with his father. An alternate week shared custody arrangement will also remove the difficulty the parties have experienced in scheduling the father's time with Collin. We will enter a shared alternate week custody award with the holiday schedule that the parties agreed to in the prior orders. ORDER OF COURT AND NOW, this day of January, 1999, IT IS ORDERED: (1) The custody orders of January 12, 1998 and November 19, 1998, are vacated and replaced with this order. (2) Lori E. Jones and Robert Todd Lindsay shall have shared legal custody of Collin T. Lindsay, born April 7, 1997. (3) Lori E. Jones and Robert Todd Lindsay shall have shared physical custody of Collin on alternate weeks with the transfer being on Thursday afternoons at a time and place set by the parties for their convenience. (4) The parties shall start the alternate week schedule as of Thursday, January 21, 1999, consistent with the father's alternate week every fourth week falling on the weekend that he is off work from Friday through Monday. (5) The following holiday schedule shall supersede the regular schedule: -6- 97-4599 CIVIL TERM A. Christmas: The Christmas holiday shall be divided into Segment A, which shall begin on Christmas Eve at 12:00 noon and end on Christmas Day at 3:00 p.m., and Segment B, which shall begin on Christmas Day at 3:00 p.m. and end on December 26 at 7:00 p.m. The Mother shall have Collin during Segment A in even numbered years and during Segment B in odd numbered years. The father shall have Collin during Segment A in odd numbered years and during Segment B in even numbered years. B. Thanksgiving: The father shall have Collin on Thanksgiving Day, from 10:00 a.m. until 3:00 p.m. in odd numbered years and from 3:00 p.m. until 8:00 p.m. in even numbered years. The mother shall have Collin on Thanksgiving Day, from 10:00 a.m. until 3:00 p.m. in even numbered years and from 3:00 p.m. until 8:00 p.m. in odd numbered years. C. Easter: The father shall have Collin on Easter Sunday in even numbered years from 10:00 a.m. until 3:00 p.m., and in odd numbered years from 3:00 p.m. until 8:00 p.m. The mother shall have Collin on Easter Sunday in odd numbered years from 10:00 a.m. until 3:00 p.m., and in even numbered years from 3:00 p.m. until 8:00 p.m. D. Memorial Day/July 4th/Labor Day: The mother shall have Collin every Memorial Day and the father shall have him every Labor Day at -7- Rebecca R. Hughes, Esquire For the Plaintiff 97-4599 CIVIL TERM times to be arranged by them. The parents shall share time with Collin on July 4th every year, with each party to have a comparable amount of time to be arranged by them. E. Mother's Day/Father's Day: The mother shall have Collin every Mother's Day and the father shall have him every Father's Day at times to be arranged by them. F. Collin's Birthday: Each year on April 7th, the parents shall each have Collin for a comparable amount of time to be arranged by them. By the Court, ~'~ J Edgar B. Bayl~y,'J,~ James J. Kayer, Esquire For the Defendant :saa -8-