HomeMy WebLinkAbout2009-1351
MARA FREEMAN, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF, : CUMBERLAND COUNTY, PENNSYLVANIA
:
:
:
:
:
v. :
:
:
:
FARED REIBER, : NO. 09-1351 CIVIL
DEFENDANT
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Ebert, J., November 4, 2010 -
Appellant, Mara Freeman, has filed an appeal from a custody order entered on
September 30, 2010. This opinion is written pursuant to Pa. R.A.P. 1925(a). Plaintiff
has filed a Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P.
1
1925(b) and appeals on the following grounds:
1. The custody order calls for a drastic adjustment to the child’s normal
schedule, which will be very difficult for the child.
2. The trial court abused its discretion in ordering Mother to approve and
facilitate Father’s taking the child out of the country to Canada.
3. The trial court abused its discretion in permitting unrelated third parties to
have the ability to pick up the child and exercise custody over the child whenever their
work schedule allows.
4. The trial court erred in finding that its ultimate disposition of the case is in
the best interest of the children.
Procedural History
On March 4, 2009, Mother filed a Custody Complaint seeking primary physical
custody and shared legal custody of the child. By Order of Court on April 8, 2009, this
Court granted shared legal custody to the parties and primary physical custody to
1
Concise Statement of Matters Complained of on Appeal, filed Oct. 7, 2010.
Mother and partial physical custody to Father. Father was granted custody on
alternating Mondays and alternating weekends. A shared holiday schedule and custody
for periods of vacation was also ordered. On March 17, 2010, Father filed a Petition for
Modification of a Partial Custody Order. A hearing was held on August 25, 2010. A
Custody Order was entered September 30, 2010, granting shared legal custody to the
parties and shared physical custody on a weekly alternating 2 day/2 day/3 day
schedule. The parties were granted shared physical custody of the child during
holidays and were each permitted two non-consecutive weeks during the year for
vacation with 30 days written notice to the other parent. This appeal followed.
Findings of Fact
1. The subject of this custody case is Tucker J. Reiber, born May 7, 2008.
2. Defendant/Appellee is Jared Reiber, 685 Greg’s Drive, Harrisburg, Pennsylvania.
3. Plaintiff/Appellant is Mara Freeman, of 308 Stonehedge Lane, Mechanicsburg,
Pennsylvania.
4. The parties are the natural parents of the child. The parties have never married
nor have they ever lived together.
5. Mother lived with her mother when the child was born, and Father visited on
2
evenings during the week.
3
6. Mother currently works as a bookkeeper at the Pennsylvania Farm Bureau.
7. She lives with her boyfriend, Rob Davenport, who works as a store manager with
4
the Tractor Supply Company.
2
N.T. 20-21.
3
N.T. 35.
4
N.T. 90-91.
2
8. Father is currently receiving Unemployment Compensation and was last
5
employed on July 6, 2010. Father was scheduled to take a two week course in auto
6
accident appraisal and is actively seeking new employment.
9. Father lives with his fiancée, Trisha Erney. The couple plan to marry in June
7
2011.
10. Father’s fiancée holds a bachelor’s degree in biology and chemistry from the
University of Pittsburgh. She is currently employed at the Hershey Medical Center as a
secretary in the infectious disease office. Additionally, she is attending nursing school
at the Harrisburg Area Community College.
11. Both Rob Davenport, Mother’s boyfriend, and Trisha Erney, Father‘s fiancée, are
hardworking, intelligent individuals of excellent character.
12. Father is requesting a 2/2/3 shared custody which alternates weekly, requests a
modification to the holiday schedule, and requesting that the child be allowed to travel to
Canada on vacation with him and his fiancée.
13. Child is benefitting from involvement with both Mother and Father, as well as
from involvement with the extended family on both sides, and from involvement with
Father’s fiancée, her extended family, and Mother’s boyfriend.
14. Child is receiving educational and social benefits from attending day care.
15. There is no inordinate danger in allowing the child to travel to Father’s fiancée’s
family vacation home in Canada. The home is very modern and beautiful, and located
5
N.T. 8, 25.
6
N.T. 25.
7
N.T. 4.
3
in Westport, Ontario. The Court has determined that this location is approximately 400
8
miles from Cumberland County by direct use of Interstate 81.
16. Allowing the child to spend more time with Father and Father’s fiancée and her
family will benefit the child and allow the child to form a relationship with his future step-
mother and her family.
17. Father and Mother are very capable of communication and cooperation for
purposes of caring for the child.
18. Both Father and Mother are fit, loving parents and both provide a source of love
and support for the child.
Discussion
Generally, Mother argues that the Court erred in finding that shared custody is in
the best interest of the now 2 ½ year old child, and that the Court abused its discretion
in requiring Mother to approve travel of the child to Canada for vacation with Father, and
in permitting Father’s fiancée and Mother’s live-in boyfriend to pick up the child from day
care on those days when that parent would have custody anyway. Mother also objects
on the basis that the custody order will be a “drastic” adjustment to the child’s schedule
and therefore will be difficult for the child.
A. Shared Custody is in the Best Interest of the Child.
While it is clear that there is no presumption in favor of shared custody, 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
8
N.T. 83, Plaintiff’s Exhibit #1 (Pictures of Canada).
4
after a separation… and the sharing of the rights and
responsibilities of child rearing by both parents...
23 Pa.C.S.A. §5301.
The factors to be considered for an award of shared physical custody are well-
established:
(1) both parents must be fit, capable of making reasonable child rearing
decisions and willing and able to provide love and care for their children;
(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; (4) a minimal degree of cooperation between
the parents must be possible. (citing Hill v. Hill, 619 A.2d 1086 (1993)).
Wiseman v. Wall, 718 A.2d 844, 848 (Pa.Super.1998).
It is well-settled that the paramount consideration in custody cases is the best
interest of the child. Jackson v. Beck, 858 A.2d 1250, 1252 (Pa. Super. 2004); see also
Swope v. Swope, 689 A.2d 264 (Pa. Super. 1997). Best interests of the child should
include consideration of all factors that legitimately affect the child's physical,
intellectual, moral and spiritual well-being. Swope at 265.
After evaluating all factors specific to this case, this Court has determined that a
shared custody arrangement is in the best interest of this child. Both parents are clearly
fit and capable of making reasonable child rearing decisions and are willing and able to
care for the child. Both parents have a genuine interest in being involved in the child’s
life and engage in activities that create positive learning and social experiences for the
child. Both parents also show a continuing, sincere desire for active involvement in the
child’s life.
Father’s involvement with the child since birth, his desire for increased custody
time, and his efforts in creating a relationship between the child and Father’s fiancée
shows that he has been and wants to continue to be a part of the child’s life. While the
5
child is too young to voice his opinions, this Court has no doubt that the child sees both
parents as a source of security and love. Both parents spend quality time with him, both
take him to and from day care, and both have taken care of him when he is sick.
Finally, this Court does find that the requisite degree of communication exists
between Father and Mother to allow for shared custody. Testimony by both parents
shows that Mother and Father can and do communicate with each other for purposes of
caring for the child, and it even appears that Mother can communicate with Father’s
fiancée when necessary and Father can communicate with Mother’s boyfriend. While
communication in this type of situation is often difficult, the parties here are
communicating at a level that is more than sufficient for an award of shared custody.
Mother’s claim that shared custody will be disruptive and therefore difficult for the
child does not outweigh the overwhelming benefits that this Court believes that the child
will receive by spending more time with his Father and soon-to-be stepmother so that
he develops a sense of equality between his parents, knowing each parent well and
knowing he can rely on the love of each one. The child is only two years old and it is to
his benefit to have adults in his life that provide love and security for him and provide a
nurturing environment. He is very fortunate to have two quality parents who can provide
these benefits for him. Shared custody will allow the child to continue to develop a
positive relationship with both parents. While a change in schedule will obviously result
in some adjustment for everyone involved, including the child, we firmly believe that the
adults in this case are willing and able to communicate and cooperate to make the
transition a positive one for the child.
6
Furthermore, the Court finds that the age of the child is such that he will be
capable of readily adapting to the new schedule that allows him to have quality time with
both of his loving parents. This change is not “drastic.” Mother and Father live only
about 20 minutes apart, so no extensive travel is required that could be considered a
severe disruption to the child’s schedule. The child will be able to remain in the same
day care with the same schedule. The schedule is not overly disruptive for the child and
the benefits of spending more time with Father make the overall change in custody in
the best interest of the child.
The Pennsylvania Superior Court has held that “[w]here the child's parents are
equally fit, or nearly so, . . . the fact that a stable, long-continued and happy relationship
has developed between the child and one of the parents may be of critical importance to
the formulation of an appropriate custody decree.” Wheeler v. Mazur, 793 A.2d 929,
935 (Pa.Super. 2002). While it is true that “the court must give attention to the benefits
of continuity and stability in custody arrangements,” John v. Cioci, 865 A.2d 931 (Pa.
Super. 2004), it is clear that this is just one factor to be considered in the broader
context of the best interest of the child. See Wheeler v. Mazur, 793 A.2d 929, 935 (Pa.
Super. 2002); see also Wiseman v. Wall, 718 A.2d 844, 847 (Pa. Super. 1998)). It must
be noted that the children involved in the Wheeler v. Mazur case were in the primary
care of the Mother for over 11 years. In this case, we are dealing with a child who is
only two years of age and has shown that he can form loving bonds with both his
parents.
In Wiseman v. Wall, the Pennsylvania Superior Court determined that a shared
custody arrangement was not in the best interest of the child when the mother was
7
clearly the primary caretaker and most of child’s waking hours when in Father’s custody
were spent in day care, and the father had limited involvement with the child in the early
stages of the child’s life. Father in Wiseman had limited involvement with the child for
the first six months of his life, and initially contested paternity. Additionally, the Court
found that
because the father had enrolled the child in a day care program and
enlisted the aide of his girlfriend in providing physical care for the child,
while not necessarily evidence of an unstable environment, creates a
persuasive argument that shared custody, which does not in fact result in
the full involvement of the father during the time he has custody, defeats
the underlying reason for shared custody and does indeed, for a child of
15 months, create more involvement with non-parental care takers than is
necessary or desirable.
Wiseman v. Wall, 718 A.2d 844, 847 (Pa.Super. 1998).
This case is drastically different from Wiseman in a number of ways. Father in
this case has been involved in this child’s life since the beginning. He has shown a
desire to have increased time with his son. A shared custody arrangement would not
result in more involvement with non-parental caretakers but would instead allow the
child to have more time with his Father and extended family. In this case, while Mother
may currently have more actual time with the child, she herself admits that “the amount
of actual physical quality time that we have with our son is about even. It’s almost
9
exactly the same, barring the time that he’s in day care.” Even though Mother has
primary physical custody, the child spends much of the time while in Mother’s care in
day care, and an increase in custody time with Father would result in more actual time
with a parental caretaker. The goal of a change in custody should be to increase the
9
N.T. 44.
8
child’s time with the other parent. See Johnson v. Lewis, 870 A.2d 368, 375 (Pa. Super.
2005). This is the effect of the shared custody arrangement in this case.
The Court in Wiseman also noted that in that case shared custody was not in the
best interest of the child because it was clear that the mother would always be there for
the child and that the child also had the support of the maternal grandmother, while the
father had an unpredictable relationship with his girlfriend. Thus, this case can also be
distinguished from Wiseman because both parents and their respective significant
others are meaningfully involved in Tucker’s life and presumably will continue to be
involved. Father is engaged and Mother testified that her relationship with her live-in
boyfriend was serious and that they hope to marry. Both parents genuinely have a
desire to be involved in Tucker’s life and both have extended family members who love
and care for the child and are positive factors in the child’s life.
Clearly, this Court understands that this young mother, who has had primary
custody of the child since he was born, really does not want to give up one extra minute
of her custodial time. Basically, her testimony revealed that she is very content with the
child only visiting with his Father every other weekend and Monday from 9:00 a.m. to
10
7:00 p.m. until the child is in middle school. Thus, the child would remain in her
primary custody until age 10-11. Doing the simple math, Father would have the child
approximately 27% of the time while Mother would have him 73% of the time for the
next 8 years. At this point, after Father has had minimal time with the child during his
11
most formative years, Mother proposes that the child then “tell us what he would like.”
This Court finds that this approach is simply not in the best interest of this little boy.
10
N.T. 61, Mother’s Proposed Custody Schedule filed pursuant to Court Order on September 3, 2010.
11
N.T. 62.
9
“… [I]n matters of custody and visitation, the ultimate consideration for the Court is a
determination of what is in the best interest of the child, and all other considerations are
deemed subordinate to the child’s physical, intellectual, moral, and spiritual well-being.
Nonnenman v. Elshimy, 615 A.2d 799, 801 (Pa.Super. 1992) (citing Lee v. Fontine, 594
A.2d 724 (1991); see also Zummo v. Zummo, 574 A.2d 1130 (1990). This trial Court
was required to focus on the best interest of the child, not the best interest or desires of
the Mother.
B. Allowing the Child to travel to Canada was not an abuse of discretion.
Mother’s concern with the child going to Canada seems irrational. On one hand,
she says that her main reservation is that if he got sick or there was a major medical
incident, she is concerned that the Canadian health care system is not adequate. Then,
she says that she just wants the child to be older so he can “tell [her] that he’s okay
12
before I let him go out of the country.” While health care availability is certainly a
factor in considering the best interests of the child, this Court finds no evidence to
support Mother’s opinion that proper health care would not be available to the child
while in Canada.
This court takes judicial notice of the fact that Canada is a highly industrialized
country with modern conveniences and does not find credible Mother’s opinion of the
Canadian health care system. Allowing the child to travel to Canada poses no
extraordinary risk whatsoever to the child. Canada is hardly a third-world country and
has no known major deficiencies in its services. This Court finds that this vacation
home is a very suitable place for the child to spend vacation. Father’s fiancée’s family
vacation home is located in Westport, Ontario, about forty-five minutes to an hour over
12
N.T. 49.
10
the Canadian-U.S. border directly north on Interstate 81. The vacation home is a
beautiful home located directly on a lake and consisting of over 100 acres. The child
would be there with many family members, any of whom this Court is confident would
be able to find adequate medical attention for the child if needed. Frankly, this whole
objection to Canadian travel is really just another manifestation of this Mother being
incapable of letting go of this child.
C. Involvement of Third Parties
Mother appeals in part based on the Court’s decision to allow third parties to pick
the child up from day care and exercise periods of custody over the child. It is important
to clarify that the “third parties” to which Mother refers are Father’s fiancée and Mother’s
own boyfriend, both of whom are specifically named in the custody order. The Court
carefully evaluated the specific facts of this case and determined that Mother’s
boyfriend and Father’s fiancée should be allowed to pick the child up from day care and
spend the day with the child if that day is that parent’s overnight custody period. This
was included in the order as a matter of convenience for the parties in order to allow
them some flexibility in complying with the custody order. Furthermore, the Court
recognized that these were both significant people in the child’s life, and it was not
inappropriate to consider their roles when finalizing the custody order.
In Andrews v. Andrews, 601 A.2d 352, 357 (Pa. Super. 1991), the Pennsylvania
Superior Court found that the trial court erred when it excluded evidence related to
appellee’s boyfriend, who spent nearly every evening between 6 p.m. and 11 p.m. at
appellee’s residence and accompanied appellee and child on family outings. The Court
stated that
11
As this individual clearly spends a significant amount of time in [child’s]
presence, his effect upon her is a factor in determining the award of
custody herein. As we have already stated, the court is obligated to
consider “all relevant factors” in making its decision. Clearly, the character
and habits of a man with whom [child] has almost daily contact in her own
home bear upon whether proximity to this person is in the child's best
interests.
Andrews v. Andrews, 601 A.2d 352, 357 (Pa.Super. 1991) (internal citations
omitted).
Similarly, in this case, this Court correctly included testimony of Father’s fiancée
and properly took into account the child’s relationship with Father’s fiancée and her
extended family, as well as Mother’s boyfriend and Mother’s extended family because
those are all people who play a significant role in the child’s life.
As a result, the Court recognized that, for matters of convenience and facilitating
the custody arrangement, Mother’s live-in boyfriend and Father’s fiancée could be
resources that could be used to pick up the child from day care, thereby facilitating the
transition of the child from day care to home. Upon reflection, the wording of this
paragraph, Number 5 of the Custody Order may be somewhat inartful. It is implicit in
the wording that the actual parent who is requesting the significant other to pick up the
child approved the pickup and that the decision was not to be made unilaterally by the
significant other. Equally important is the fact that this clause is very tangential to the
real purpose of this Order which is to provide for shared physical custody of this child.
These two significant other people are currently and will presumably continue to spend
a great deal of time with the child, and it is not unreasonable to make accommodations
to include them in such a minor way in the custody arrangements. Furthermore, Mother
testified that if Father could not be there to pick up Tucker, he could call the day care
and let them know that he has an “emergency pick up person.” Therefore, the Court did
12
not order anything that was not already presumably permitted by the day care facility or
acceptable to the parties. It is not an abuse of discretion for the Court to facilitate the
custody exchange of the child by including this permission in its custody order. In any
regard, this one sentence could be stricken from this Order and not in any way alter the
physical custody arrangement found appropriate to serve the best interest of this child.
Conclusion
For the reasons discussed above, the best interests of this child are served by
shared physical custody on a 2 day/3 day/2 day schedule alternating weekly as detailed
in the September 30, 2010, Order. These parents are both fit and reasonable parents,
and the child will benefit most from a shared custody arrangement. The Court
considered all of the relevant factors and the best interests of this child will be served by
equal involvement of both parents. The Court did not err in this determination, nor did it
abuse its discretion in providing details in the custody order relating to vacation time and
picking the child up from day care that would facilitate the custody arrangement.
By the Court,
M. L. Ebert, Jr., J.
Kara W. Haggerty, Esquire
Attorney for Plaintiff
Charles E. Petrie, Esquire
Attorney for Defendant
13