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HomeMy WebLinkAbout2007-1159 Civil HOLLY D. KENNEDY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : JOSHUA A. KENNEDY, : DEFENDANT : NO. 07-1159 CIVIL TERM MEMORANDUM OPINION AND ORDER OF COURT Masland, J., July 16, 2010:-- Before the court is the petition of mother, Holly D. Kennedy, for modification of the custody of the minor child, Deanna Elizabeth Kennedy, born December 5, 2005. The Honorable Edgar B. Bayley issued an order of court dated March 5, 2008, providing for shared legal custody and shared physical custody on a week on/week off basis. With Deanna approaching school age and both parents believing she would benefit from a Headstart program in 2010-2011, this matter was presented to the court in order to determine Deanna’s primary residence in anticipation of her commencing formal education. At a hearing on June 7, 2010, the court heard testimony from the mother and her fiancé, Troy Swartz, and from the father, Joshua Kennedy, his fiancée, Mekayla Sewell, and his mother, Patricia Kennedy. At the conclusion of the hearing, the court directed the parties to address the issue of the necessity of immediately modifying the existing order over one year prior to Deanna entering kindergarten. Following a status conference on June 23, 2010, the parties submitted written argument in support of proposed orders of court. 07-1159 CIVIL TERM DISCUSSION Regarding the threshold issue of “why now?,” the court is satisfied from the testimony of the parties and argument of counsel that it is in Deanna’s best interest to enroll in a Headstart program for the 2010-2011 school year. Unfortunately, because of scheduling, residency, and transportation issues with respect to enrollment in Headstart, it is not feasible for the parties to continue the week on/week off arrangement while the child is enrolled in a Headstart program in either Shippensburg, home of the father, or Carlisle, home of the mother. Therefore, it is in everyone’s interest to establish a home base for Deanna at this time, which, barring any change of circumstances, will also establish where Deanna will enter the public school system in 2011. As the court noted at the conclusion of the hearing, it is faced with a decision that it is both easy and difficult. It is easy because regardless of who is the primary custodian of Deanna, she will be in good, capable, and loving hands. Yet, the court recognizes that one set of loving hands is likely to be disappointed, and for that reason this is difficult. Although the court must select a primary custodian for Deanna, its selection should not be interpreted as a criticism of the parenting skills of the individual not selected. If the parties maintain their focus on Deanna’s best interests, there will be no “losers” in this case. To the contrary, both families can and should work to ensure that all are winners and that Deanna’s life is not a patchwork quilt of abrupt exchanges, but rather a seamless tapestry of loving support. -2- 07-1159 CIVIL TERM The court declines to issue a series of findings that compare and contrast the strengths and weaknesses of the parties. Suffice it to say the court finds the parents, their significant others, their respective extended families, and their proposed school districts, to be essentially equal in many respects. Nonetheless, the court must now determine, based on Deanna’s best interests, which parent will have primary physical custody. Although father has made great strides as a parent over the past year, in large measure due to Mekayla’s positive influence, the court finds that mother’s long-term nurturance, coupled with the presence of Deanna’s half-sister, Hannah, make the mother’s home the better of two good living arrangements. Even Mekayla noted Deanna’s affection for Hannah and that she “would never hinder it.” The court is confident that Mekayla will be supportive of the sisters’ relationship; however, the best way to support that bond is to keep the siblings together. Accordingly, the court enters the following order: ORDER OF COURT AND NOW,this _____ day of July, 2010, upon consideration Mother’s petition for modification of custody, the evidence presented by both parties at a hearing on this matter and the arguments set forth by counsel for the parties, it is hereby ORDERED as follows: Legal Custody 1. : Mother and Father shall share joint legal custody of Deanna Elizabeth Kennedy, born December 5, 2005. Mother and Father agree that major decisions concerning Deanna, including, but not necessarily limited to, Deanna’s health, welfare, education, religious -3- 07-1159 CIVIL TERM training and upbringing shall be made jointly, after discussion and consultation with each other, with a view toward obtaining and following a harmonious policy in Deanna’s best interest. Mother and Father agree not to impair the other party’s rights to shared legal custody of Deanna. Mother and Father agree not to attempt to alienate Deanna’s affections from the other party. Each party shall notify the other of any activity or circumstance concerning Deanna that could reasonably be expected to be of concern to the other. Day-to-day decisions shall be the responsibility of the party then having physical custody. With regard to any emergency decision which must be made, the party having physical custody of Deanna at the time of the emergency shall be permitted to make any immediate decisions necessitated thereby. However, that party shall inform the other of the emergency and consult with the other as soon as possible. In accordance with 23 Pa.C.S.A. § 5309, each party shall be entitled to complete and full information from any doctor, dentist, teacher, professional or authority and to have copies of any reports or information given to either party as authorized by statute. Mutual agreement should be made, in advance, regarding the following matters: enrollment or termination in a particular school or school program, advancing or holding Deanna back in school, authorizing enrollment in college, authorizing Deanna’s driver’s license or purchase of an automobile, authorizing employment, authorizing Deanna’s marriage or enlistment in the armed -4- 07-1159 CIVIL TERM forced, approving petition for emancipation, authorizing foreign travel, passport application or exchange student status. 2. Mother shall have primary physical custody of the child. Father shall have periods of partial physical custody of the child as follows: a. While Child is Enrolled in Capital Area Headstart: i. Each week whereby Father shall have Deanna on Friday after Headstart until Monday morning when Headstart begins. ii. Father will be responsible for ensuring that Deanna is at Headstart on time on Monday mornings. If Father is late getting Deanna to Headstart on more than two occasions within a period of three months, then all exchanges will take place on Sunday night at 8 p.m. The times for the custody exchanges may be adjusted due to work, or other schedules, but not unilaterally except in emergencies or under circumstances beyond the control of the parties. iii. Father shall have additional periods of time, subject to the mutual agreement of the parties. b. Beginning with Child’s Enrollment in Kindergarten: i. On a four week cycle starting the first weekend after school begins, Father shall have Deanna three weekends in a row from Friday at 5 p.m. until Sunday at 8 p.m. -5- 07-1159 CIVIL TERM ii. Mother shall have custody on the fourth weekend of the cycle. iii. The parties shall share custody of Deanna during the Winter Break from school to ensure that both parties are able to spend additional time with Deanna. c. Summer: i. Regardless of Deanna’s enrollment in Headstart or once she has started Kindergarten, the Parties shall share custody during the summer on a week on/week off schedule. Father’s week will begin the Sunday after the last day of school with exchanges taking place every Sunday at 3 p.m. d. Such other times and dates as the parties may from time to time mutually agree. 3. Holidays: a. Mother and Father shall alternate custody of Deanna for the th Holidays of Memorial Day, July 4, and Labor Day. b. Thanksgiving: Even numbered years Father shall have custody of Deanna from 8:00 a.m. until 8 p.m. on the Thanksgiving Holiday. Odd numbered years Mother shall have custody of Deanna from 8:00 a.m. until 8 p.m. on the Thanksgiving Holiday. c. Christmas: Odd numbered years Father shall have custody of Deanna from Christmas Eve at noon until December 26 at noon. -6- 07-1159 CIVIL TERM Even numbered years Mother shall have custody of Deanna from Christmas Eve at noon until December 26 at noon. d. Easter: Even numbered years Father shall have custody of Deanna from 8:00 a.m. until 8 p.m. on the Easter Holiday. Odd numbered years Mother shall have custody of Deanna from 8:00 a.m. until 8 p.m. on the Easter Holiday. e. Mother’s Day: Mother shall always have custody of Deanna from 8:00 a.m. until 8 p.m. on Mother’s Day. f. Father’s Day: Father shall always have custody of Deanna from 8:00 a.m. until 8 p.m. on Father’s Day. g. If either Mother or Father is to be married, the parent who is to be wed shall have custody of Deanna from noon the day before the ceremony until noon the day after the ceremony. h. The holiday schedule outlined above will take precedence over the regular custody schedule. All other holidays not outlined above are subject to the regular custody schedule or other agreement of the parties. 4. Vacations: With thirty (30) days notice, each party shall be allowed to choose two non-consecutive weeks for a summer vacation time period with Deanna. 5. Transportation: During the Headstart school year, Mother shall be responsible for transporting Deanna to Father on Friday and Father shall be responsible for getting Deanna to Headstart on Monday mornings or -7- 07-1159 CIVIL TERM returning Deanna to Mother on Sunday at 8 p.m. If Father is late getting Deanna to Headstart on more than two occasions within a period of three months, then all exchanges will take place on Sunday at 8 p.m. Upon that change taking place, transportation will be the responsibility of the receiving party. For the summer exchanges and subsequent exchanges once Deanna is enrolled in Kindergarten, the receiving party shall be responsible for transporting Deanna. 6. Both parties shall be entitled to reasonable telephone access to Deanna while she is with the other party and neither party shall frustrate the other party’s reasonable telephone access to Deanna. 7. The parties shall make their best efforts to maintain open communication between each other, through telephone, email or other such communication, so that such communication is directed between the parties, and not through Deanna or significant others. This shall not preclude communication between either party’s subsequent spouses, significant others, or other relatives, but is meant to encourage direct communication between the parties. 8. The parties shall immediately notify the other of any changes of address or telephone number. 9. The parties shall not move Deanna from a 30 mile radius of their current address without the written consent of the other party or the order of Court. -8- 07-1159 CIVIL TERM 10. Neither party shall use illegal drugs or alcohol to the point of intoxication in the 24 hours prior to their custodial time with Deanna or during their custodial time with Deanna. Both parties shall keep Deanna away from third parties who are intoxicated or using illegal drugs. 11. Neither party shall smoke cigarettes in the residence when Deanna is present for her custodial periods or in a vehicle when transporting Deanna. Both parties shall keep Deanna from third parties using cigarettes in the residence or vehicle when Deanna is present. 12. This Court shall retain jurisdiction over this matter for purposes of enforcement and modification, unless both parties agree in writing to transfer jurisdiction to any other appropriate court. By the Court Albert H. Masland, J. Jessica Holst, Esquire For Plaintiff Nathan C. Wolf, Esquire For Defendant :sal -9-