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HomeMy WebLinkAbout98-5096 civilRICHARD W. POWELL, PLAINTIFF V. LEAANN POWELL, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-5096 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT BAYLEY, J., January 28, 1999:-- Richard Powell, age 44, and LeaAnn Powell, age 38, where married on August 19, 1995. They separated on July 24, 1998. They have two children, Rachelle, age 16, born September 13, 1982, and Alexandra, age 2, born July 17, 1996. The father filed the within complaint in custody on September 2, 1998. A custody hearing was conducted on December 16, 19987 The father initially sought primary physical custody of Rachelle and Alexandra, but at the hearing withdrew his request as to Rachelle who wants to live with her mother. The father and mother agreed, based on Rachelle wanting to live with her mother, to an award to her of the primary physical custody of Rachelle with the father having every other weekend periods of partial physical custody with consideration being given to Rachelle's activities. Both the mother and father seek primary physical custody of Alexandra. In the alternative, the father seeks shared physical custody. 1. On October 23, 1998, the father filed a petition for special relief seeking immediate transfer of the custody of Rachel and Alexandra to him on an allegation that the mother had moved the children from Cumberland County to Westmoreland County in violation of the requirements of Gruber v. Gruber, 400 Pa. Super. 171 (1990). We entered the following order: "Denied. A hearing has already been set on the merits of this custody case for December 16, 1998, at 1:30 p.m." 98-5096 CIVIL TERM The father lives in a four bedroom home in West Fairview, Cumberland County, which was the marital residence. The mother lives with Rachelle and Alexandra in a home she rents from her brother in Lower Burrel, Westmoreland County. The father is a network manager for AMP where he has worked for fourteen years. He works weekdays generally from 8:00 a.m. to 5:00 p.m. The mother is a licensed practical nurse. She works at a nursing home operated by Beverly Enterprises which is near where she lives. She has worked for Beverly Enterprises for almost six years and was working for a nursing home it operates in Camp Hill, Cumberland County, before she relocated to Westmoreland County in July, 1998. The mother now works three day and evening shifts each week. She is off every other weekend, otherwise her days off are during the week. Alexandra spends two mornings a week in day care and a day with her maternal grandmother. When the mother was living with the father in West Fairview, and after Alexandra was born on July 17, 1996, she worked on Fridays, Saturdays and Sundays. Alexandra went to day care on Fridays and the father took care of her on Saturdays and Sundays. The mother took care of her on Mondays through Thursdays. The mother and father dated in 1981 when they both lived in Westmoreland County. The mother testified that when she became pregnant she told the father that the child was his and that he denied paternity. He asked her to marry him but she refused. The mother further testified that she told the father that if he could not be a full-time father he should not see the child. The father testified that the mother told -2- 98-5096 CIVIL TERM him that he was not the father of the child and that she did not want him to be involved in the child's life. The father never saw Rachelle until the spring of 1995, after Rachelle told her mother that she wanted to meet him. By that time the mother had married, her husband had adopted Rachelle, and she was divorced. After Rachelle met the father, the parents reestablished their relationship which resulted in the mother moving from Westmoreland County to West Fairview in July, 1995, to live with the father. After they married in August, 1995, the father adopted Rachelle. The mother testified that he is Rachelle's natural father. Because Rachelle had been adopted by the mother's first husband, the father adopted her after he married the mother? The mother testified that Rachelle's relationship with her father has always been 'touch-and-go." They had many conflicts and the mother felt that she was constantly being put in the middle. The mother testified that the father was at times physically abusive with Rachelle. The father testified there were two incidents which both involved Rachelle "acting out." He spanked Rachelle the first time when the mother was present and supported that discipline. The second time Rachelle was talking back to him he physically grabbed her and sat her in a chair. In chambers, Rachelle said that her father hurt her on both occasions. She also stated that her relationship with her father is strained. 2. The mother did not name a father on Rachel's birth certificate and he was not notified when the mother's first husband adopted her. -3- 98-5096 CIVIL TERM When Rachelle was in fifth grade and the mother was living in Westmoreland County she enrolled her in the Milton Hershey School in Hershey, Dauphin County. She saw Rachelle on weekends, holidays and during the summer. Rachelle attended Milton Hershey for four years. For ninth grade, the mother and father had her attend school in the East Pennsboro School District in Cumberland County. Rachelle is now in tenth grade in a public school in Westmoreland County. She is an excellent student who is involved in many activities. She loves her little sister and sometimes baby-sits for her. Alexandra is a typical two-and-a-half-year-old who is becoming communicative. The father maintains that he is more sensitive and aware of her needs than the mother and that he can take better care of her. The mother maintains that she takes good care of both of their children, that the children have a loving sister relationship, and that they should live with her and not be separated. The father has hepatitis C which adversely affects his liver although he lives a normal life. He testified that his understanding of the disease, which cannbt be cured, is that it can only be transferred by blood to blood contact. The mother testified that it is her understanding that there have been some reported cases of the disease being transferred through non-blood exposure. There is no vaccination for hepatitis C. The mother is upset that the father allows Alexandra to sometimes eat food from his fork, and that he will take bites from the same food she is eating. The father acknowledges this practice and maintains that it poses no risk for Alexandra. The mother is also upset about the father's handling of blood when he is cut. The father -4- 98-5096 CIVIL TERM testified that he has done nothing that would ever put Alexandra at risk of contacting his hepatitis C. Despite these concerns, the mother testified that the father is a good father to Alexandra and has always been attentive to her. We do not believe that the father will place Alexandra at risk of contacting hepatitis C. We do believe that he should respect the concerns of the mother regarding his handling of the child's food. Following a conciliation conference, a temporary custody order was entered on October 30, 1998, that set a holiday schedule and provides the father with temporary physical custody of Alexandra and Rachelle every other weekend on Friday through Sunday. On the father's weekends, the parents have been meeting to exchange the children on both Friday and Sunday at either the Bedford or Breezewood exits on the Pennsylvania Turnpike. The total driving time between West Fairview and Lower Burrel is about three and one-half hours. When the mother and father were experiencing marital difficulties, the father maintains that she moved and took the children to Westmoreland County without giving him prior notice. The mother maintains that she told the father she was leaving with the children a week before July 14, 1998, when she moved into the home of her mother in Westmoreland County. The mother's sister, two brothers and grandparents live in that area.3 The mother's current home, which is about two miles away from her mother's home, is still being remodeled. The father expressed concern about the 3. The father's parents live in Jefferson County, Pennsylvania. -5- 98-5096 CIVIL TERM condition of the home. We are satisfied that it is adequate for the needs of the mother and the children. In Gruber v. Gruber, 400 Pa. Super. 174 (1990), the Superior Court of Pennsylvania set forth factors for a trial court to consider in determining whether a custodial parent shall be permitted to relocate children at a geographical district from the non-custodial parent: 1. the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent; 2. the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; 3. the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. In Beers v. Beers, 710 A.2d 1206 (Pa. Super. 1998), allocatur denied 1998 P.A. LEXIS 2279, a mother informed the father that she planned to move with their two children from Lehigh County to Chester County, a drive of about one hour and forty-five minutes. The father filed a petition for emergency relief which resulted in an order preventing the relocation pending the outcome of a custody conference. At the conference, the parties agreed upon a shared custody arrangement, pending trial, with the children spending one week at a time with each parent. The trial court, after determining that the matter was governed by the principles set forth in Gruber v. Gruber, supra, held that the mother failed to meet her burden that her proposed move was in the best interest of the children. The Superior Court stated that it had -6- 98-5096 CIVIL TERM consistently held that Gruber "[r]efines upon, but does not alter the basis and determinative inquiry as to the direction in which the best interests of the child lie." determining whether Gruber applies to an intrastate relocation as contrasted to an interstate relocation, the Superior Court stated that "It]he trial court must first ask whether the parent/child relationship will be affected in any negative, material way, and in its discretion determine whether such an inquiry is appropriate in a given case." The Court concluded that the trial court was correct in applying the Gruber criteria, and stated: Appellant also argues that Gruber requires an order awarding primary physical custody to be in place before any determination of whether a proposed move should be permitted, since it is the child's best interest in the context of the primary family unit which must be considered. The absence of such an order neither impedes a Gruber inquiry prior to a custody decision, nor prevents our assessment of whether a proper award of primary physical custody was made in this case. Rather, we must simply analysis the current family units to evaluate the effects of the trial court's decision. The Superior Court, nevertheless, reversed the trial court, finding it to be in the children's best interest that the mother have primary physical custody despite the distance of the move to Chester County.4 In 4. Judge Montemuro authored the court's panel opinion. Judge Cavanaugh dissented, stating that he would affirm on the opinion of the trial court although he concluded that "[t]he Gruber analysis applies when there is a significant proposed relocation from one community to another which entails different educational facilities, cultural, religious, and commercial environments regardless of whether or not a state line is crossed." Judge Schiller concurred, stating that: "In my view a Gruber analysis is necessary only when the party who has previously been awarded custody by a court is seeking to relocate. In such a situation the Gruber paradigm will aid the trial court in reevaluating the factors which first resulted in the award of custody to the -7- 98-5096 CIVIL TERM In the case sub judice, we believe it is appropriate to make a Gruber analysis. In the summer of 1998, the mother found herself in a deteriorating marriage that was also adversely affecting Rachelle. Although the mother had a good job in this area, she was able to transfer with her same employer to Westmoreland County where she moved and had the support of her family. She lived temporarily with her mother and is now renting a home from her brother. The move to Westmoreland County is an improvement to the mother in psychological terms. While it does not substantially improve her material quality of life or that of her children, it was made for legitimate reasons and not simply to thwart the father's relationship with his children. The father now agrees that Rachelle should be in the primary custody of her mother in her home in Westmoreland County. As to Alexandra, there is a realistic, substitute visitation arrangement which will adequately foster an ongoing relationship between her and the father. Both parents love Alexandra and are capable of caring for her. The father can obtain day care for Alexandra when he works the same way the mother now does. 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 relocating parent. However, I see no need to employ this separate analysis when the trial court is operating on a clean slate. Thus, the planned relocation of a custodial parent and a voluntary custody arrangement will not evoke Gruber, but that relocation will necessarily be a factor in arriving at the conclusion of what is in the best interest of the children." -8- 98-5096 CIVIL TERM 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 translate into a requirement that the parents have an amicable relationship. All these elements are present in the case sub judice. We find that it is in the best interest of Alexandra to award shared custody on an alternate week basis. There is a substantial age difference between Rachelle and Alexandra, and this arrangement will still maintain a bond between them while giving Alexandra the benefit of a close bond to both of her capable, caring, and loving parents. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this '~'~"-day of January, 1999: (1) The temporary custody order entered on October 30, 1998, is vacated and replaced with this order. (2) The mother, LeaAnn Powell, and the father, Richard W. Powell, shall have -9- 98-5096 CIVIL TERM shared legal custody of their children Rachelle Powell, born September 13, 1982, and Alexandra Powell, born July 17, 1996. (3) The mother shall have primary physical custody of Rachelle with the father having temporary physical custody every other weekend from Friday through Sunday at times agreed by them with consideration given by the father to Rachelle's activities. (4) The mother and father shall have shared physical custody of Alexandra in alternate weeks. All transfers shall be made by the parties at times agreed by them at approximately half way between the mother's home in Westmoreland County and the father's home in Cumberland County. (5) In light of this order, the parties shall make special arrangements for each of them to see both children during the Thanksgiving and Christmas holiday periods. If they are unable to reach agreement, they should both submit written proposals to amend this order to provide for specific periods of time. Edgar B. Bayley, J. / Debra Denison Cantor, Esquire For the Father Jacqueline Verney, Esquire For the Mother ;saa -10-