HomeMy WebLinkAbout2010-2965
CHRISTINE FIELDS, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
BRIAN FIELDS, :
DEFENDANT : NO. 10-2965 CIVIL
IN RE: CUSTODY
OPINION OF COURT
Ebert, J. December 14, 2010 -
Plaintiff in this case is petitioning for primary physical custody of the minor
children. The current custody arrangement is shared legal custody and shared physical
custody with each parent alternating custody on a week on/week off basis.
PROCEDURAL HISTORY
This custody case originated in Perry County as part of a divorce decree entered
on October 18, 2004. A custody order was entered on October 14, 2004 based on a
stipulation of the parties where the parties shared legal custody of the children and
Mother had primary physical custody, and Father had partial physical custody of the
children during summer vacations and on alternating spring breaks and Christmas
holidays.
On August 3, 2007, Mother filed a petition in Perry County to modify the custody
order when Father moved back to Pennsylvania from California. Mother requested a
decrease in Father’s periods of physical custody during the summers. On August 9,
2007, Father filed a complaint for custody in Franklin County requesting shared physical
custody of the minor children. On September 5, 2007, Father filed a motion with Perry
County to transfer venue to Franklin County where the children then resided. Judge
Walsh declined the transfer and instead deferred to Perry County to hear the case in its
Custody Court on September 11, 2007. The Perry County Court issued a temporary
custody order after the parties met with the Perry County Custody Conciliator. On
October 19, 2007, Perry County Court transferred venue to Franklin County Court.
Judge Walsh entered a temporary Order on January 22, 2008, adopting the
Perry County Court’s Temporary Order of September 11, 2007, and scheduled a
custody conciliation conference for February 5, 2008. After the conference before
Conciliator David W. Rahauser, the Court issued a temporary Order on February 29,
2008 directing that the September 11, 2007 order, with modifications, would remain in
effect. The February 29, 2008 Order provided that Father would have partial custody on
alternating weekends from Friday evening through Sunday evening, every Thursday
evening and alternating Monday evenings, and that the parties would share custody in
the summer by alternating two week periods.
A two day hearing was held in August of 2008 before Judge Walsh which
consisted of over 300 pages of testimony, and included the testimony and custody
evaluation of Psychologist Eugene Stecher. On September 23, 2008, Judge Walsh
entered an order granting Mother and Father shared legal custody and shared physical
custody on a week on/week off basis. This Order has remained in effect since
September 23, 2008.
Both parents have moved to Cumberland County, and on March 15, 2010,
Mother petitioned to have the case transferred to Cumberland County. By Order dated
April 14, 2010, Judge Walsh granted the Petition and this custody case was transferred
to Cumberland County. On May 4, 2010, Mother filed a Petition for Modification of
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Custody. On July 13, 2010, Defendant filed a Petition for Custody Evaluation and
Testimony of Therapist. In an Order entered on August 4, 2010, this Court denied the
Petition to Compel the Testimony of Therapist, and deferred ruling on the Petition to
Order a New Custody Evaluation until after the conclusion of the hearing scheduled for
September 14, 2010. Hearing was held on September 14, 2010. The parties did move
to include the testimony of the hearing before Judge Walsh in August 2008 along with
the custody evaluation done by Psychologist Eugene Stecher on July 7, 2008 into the
record.
FINDINGS OF FACT
1. Christina Fields (“Mother”) and Brian Fields (“Father”) were married in 1996 and
separated in 2002.
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2. The minor children, Shannon, age 14, Grade 9 and Ian, age 12, Grade 7.
3. Father provides a stable and structured environment for the children and
implements discipline in the household.
4. Mother lives with her boyfriend, John Lewis, whom she has dated since
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November 2009, and who moved into her house in February 2010.
5. The children attend Shippensburg School District and would not have to change
schools if the 50/50 custody arrangement is maintained. Father has been driving the
children to school on his custody weeks, and would continue to do so under a 50/50
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custody arrangement.
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For clarification, we note that the date of the Custody Order referenced in the Petition for Modification of Custody,
¶ 4-5 should Sept. 23, 2008 and not Nov. 26, 2008.
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N.T. Sept. 2010 p. 62.
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N.T. Sept. 2010 p. 13.
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N.T. Sept. 2010 p. 19-20.
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6. Mother’s live-in boyfriend, John Lewis, exercised poor judgment and
inappropriate behavior when he called Children and Youth Services, without consulting
Mother, based only on information received from the children that they had some
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conflicts while in Father’s custody.
7. John Lewis also exercised extreme poor judgment when, without consultation
with Mother, he advised the children to call the state police when they had an argument
with their father over a minor issue and where any reasonable person would have
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known that the children were in no danger.
8. John Lewis’ motive for the actions listed in paragraphs #6 and #7 above, was
self-serving and not in the best interest of the children.
9. Psychologist Eugene Stecher performed a custody evaluation on July 7, 2008,
and testified in the August 2008 hearing before Judge Walsh as an expert in child
custody evaluations.
10. Psychologist Stecher stated findings from his report that the children would
benefit from the father’s involvement with regard to discipline and boundary setting,
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responsibility for homework, and behavioral management. Mr. Stecher also stated that
while both parents are capable of co-parenting, it would be more difficult for Mother and
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that the best scenario would be to have both parents share the responsibility.
11. Psychologist Stecher indicated that children had more episodes of “traumatic
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behavior” at Mother’s house than at Father’s house. The children demonstrated better
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N.T. Sept 2010 p. 91-94.
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N.T. Sept. 2010 p. 93-94, 98
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Notes of Testimony, Custody Hearing before Judge Walsh, August 7, 2008, p 11. (hereinafter N.T. Aug. 2008 p.
___)
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N.T. Aug. 2008 p. 9-10.
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N.T. Aug. 2008 p.14.
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self-control at Father’s home, and the children were more “emotionally extreme” at
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Mother’s home.
12. Mr. Stecher testified that in his opinion, based on his evaluations of the family, the
children’s best interests are served by spending equal or close to equal time with both
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parents. This Court finds the testimony and opinions presented by Psychologist
Stecher to be credible and accurate.
13. Mother’s household has lacked stability. She met her current boyfriend in
November 2009 and he had moved in with her by February 2010. He has not held
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steady employment. They have moved twice within the past year.
14. John Lewis has three children of his own who visit him at Mother’s home
periodically and have caused conflicts with both Shannon and Ian in the past, including
conflicts resulting from a dating relationship between Shannon and Kyle, one of John
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Lewis’s children.
15. Father has been married to his current wife, Melisa, since August 2005 and holds
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a steady job which allows him to work from home.
16. After the August 7, 2008 hearing, the Order of Court dated August 29, 2008
giving Mother and Father shared physical and legal custody of the minor children on a
week on/week off basis was based upon consideration of all testimony in the case
which indicated that the children would benefit from equal involvement from both
parents.
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N.T. Aug. 2008 p.15.
11
N.T. Aug. 2008 p.17.
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N.T. Sept. 2010 p.27-28.
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N.T. Sept. 2010 p.27.
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N.T. Sept. 2010 p.25-26.
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N.T. Sept. 2010 p.38-39.
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17. Neither child articulated any meaningful reason to support their preference for an
arrangement that reduced amount of time with Father.
18. Neither child articulated any reason whatsoever to indicate that Father’s
household is unsafe or inadequate in any way.
19. There has been no change of circumstances that would dictate that the best
interests of the children would be served by a modification to the current custody
schedule.
DISCUSSION
The Pennsylvania Superior Court has consistently held that “in any custody
determination, the paramount consideration 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.
One of Mother’s concerns with equal joint custody seems to be that such
an arrangement would be disruptive to the children and that it would somehow
provide an unstable environment for them. However, Mother points to nothing
that indicates that Father’s household is unsuitable for the children or that
suggests that Father’s household creates an unstable environment. To the
contrary, all testimony shows that Father provides a structured environment for
the children in which he enforces rules and monitors their schoolwork. All
evidence presented supports this Court’s finding that Father should have equal
time with the children. Many of the issues raised in Mother’s complaint were
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either exaggerated or misrepresented, or have since been resolved. Father does
not prohibit the children from having contact with Mother during his periods of
custody, and complaints about disparaging comments made about Mother by
Father and his wife have markedly decreased. Father has agreed to allow the
children to attend counseling.
Mother’s other major reason for wanting to regain primary physical
custody is that the children have requested it. While the express wishes of a
child are not controlling in custody decisions, such wishes do constitute an
important factor that must be carefully considered in determining the child's best
interest. Cardamone v. Elshoff, 659 A.2d 575, 582-583 (Pa. Super. 1995) (citing
McMillen v. McMillen, 602 A.2d 845, 847 (Pa. 1992)). The child's preference,
however, must be based on good reasons, and the child's maturity and
intelligence must be considered. Id. (citing McMillen, 602 A.2d at 847). Shannon
is a very bright and thoughtful child, and Ian is also very bright and seems to be
heavily influenced by Shannon. Both children had positive things to say about
each parent, and neither child could articulate meaningful reasons why they
preferred to live with Mother.
The children’s preferences are not the prevailing factor to be used in
determining their best interests. While both parents do provide an adequate
environment for the children, it is clear that Mother’s household provides, at least
in the children’s minds, a more lenient and “laid back” environment. Mother
provides less punishment and does not monitor schoolwork as closely as Father.
It is no surprise that the children at their current ages might express a preference
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to live with Mother in an atmosphere which affords them less scrutiny of their
behavior.
Because Father has only recently begun playing a larger role in the
children’s lives, it is not surprising that they may sometimes react negatively to
new discipline and structure that is different than when they are in Mother’s
custody. While we take the children’s preferences into account, in this particular
case we do not find that the children’s preferences necessarily reflect their best
interests. Allowing the children to spend time with both parents equally will
provide the best possible environment for these children.
CONCLUSION
The children in this case are benefiting from the involvement of both parents.
While the transition to Father’s involvement seemed to cause some difficulty at first, it is
clear that Father and his wife are committed to making improvements and that they are
willing to continue counseling to help create a positive atmosphere. The children are
better served by having equal time with both parents. Therefore, we find that the
current custody arrangement with shared legal and physical custody is in the best
interests of the children in this case.
By the Court,
M. L. Ebert, Jr., J.
Edmund J. Berger
2104 Market Street
Camp Hill, PA 17011
Attorney for Plaintiff
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Jennifer L. Spears
10 East High Street
Carlisle, PA 17013
Attorney for Defendant
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