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HomeMy WebLinkAbout2002-851 Civil TANYA VASQUEZ, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : REGINALD OBERTON, : DEFENDANT : 02-0851 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., March 14, 2006:-- Tanya Vasquez, age 35, and Reginald Oberton, age 35, are the parents of Mikaela Oberton, born May 16, 1992, age 13, and Reginald Oberton, II, born June 6, 1993, age 12. The mother lives in Steelton, Dauphin County. The father lives in Carlisle, Cumberland County. The parents’ disputes involving their December 10, 2002 children have been with us for awhile. On , when both parents were living in Mechanicsburg, Cumberland County, an order was entered inter alia: providing, (3) The parents shall have shared physical custody of the children as follows: (a) During each school year: (i) the mother shall have them from after school each Tuesday until noon each Sunday; (ii) The father shall have them from noon each Sunday until the beginning of school each Tuesday. (b) During school vacation each summer the parents shall have them for alternate weeks with an exchange each Monday at 7:00 p.m., except that each parent shall have a continuous two-week period with them with those periods set by agreement not later than fifteen days before the end of each school year. (c) They shall share holidays by agreement. February 12, 2004 On , the order was amended: 02-0851 CIVIL TERM 1. Paragraph 3(a) shall read as follows: During the school year: (i) the mother shall have them from after school each Wednesday until 4:00 p.m. on Sunday. (ii) the father shall have them from 4:00 p.m. on Sunday until the beginning of school each Wednesday. August 25, 2003 On , it was ordered that Mikaela and Reginald attend school in the Carlisle School District, which was the district in which the father 1 October 4, 2004 was living. On , following a hearing on the merits, the prior inter alia custody orders were vacated and replaced with an order providing, : (2) The mother, Tanya Vasquez, shall have primary physical noon, Saturday, October 9, 2004 custody of Reginald as of . (3) The father, Reginald L. Oberton, shall then have temporary physical custody of Reginald during the school year, as follows: (a) Starting on Friday, October 22, 2004, every other Friday from after school until Sunday evening or Monday evening if Monday is a school holiday. (b) Starting on Wednesday, October 20, 2004, every Wednesday from after school until 7:30 p.m. 1 (c) Such other times as the parties shall agree. (4) During each summer school vacation period, Reginald shall spend two weeks with his father and one week with this mother, on an alternating basis until school resumes. Transfers shall be on Fridays. 1 While there are additional reasons for the entry of this order, one of the most significant is that Reginald is no longer staying in the father’s home overnight during the school week. After this order was entered, the children attended school in the Cumberland Valley School District where the mother lived. The father filed the current petition to modify this order. He sought primary physical custody of March 3, 2006 Mikaela and Reginald. At a hearing on , he withdrew his claim for the physical custody of Mikaela on the basis that she wants to continue to live The mother was living in the Cumberland Valley School District. 1 -2- - 02-0851 CIVIL TERM with her mother. He pursued his claim for the physical custody of Reginald on the basis that he wants to live with him. In September, 2005, the mother moved from Cumberland County to Steelton to live with Lance Chisholm, age 47, whom she met a little over a year ago. They purchased a four bedroom home in which Chisholm’s sixteen-year-old son, Lance, lives. The mother enrolled her children in school in Steelton, where Mikaela is in the eighth grade and Reginald the seventh grade. Chisholm is a corrections officer at the Dauphin County Prison, where he works a 6:00 a.m. to 2:00 p.m. shift. He is also a longtime assistant football coach at Steelton Highspire High School. The mother is an insurance consultant for Aflac, where she works Monday through Fridays from 8:00 a.m. to 4:00 p.m. The father is engaged to Jody Ressinger, an occupational therapist, who lives with her son, age 13, and daughter, three and one-half, in the Borough of Carlisle. She has known the father for approximately two and a half years. The paternal grandmother, Debora Webb, and her husband Jesse, live a few blocks from Ressinger. The father stays in Ressinger’s home most nights, although he occasionally stays in the home of his mother. When the father has Reginald and Mikaela, they stay with him in Ressinger’s home, although Mikaela often stays in her grandmother’s home. Generally, the father spends more time with his son than with his daughter. The father works at CR Powers weekdays from 7:30 a.m. to 4:00 p.m. He testified that if physical custody of Reginald is awarded to him, they will live in his mother’s home until he marries Jody Ressinger, then in -3- - 02-0851 CIVIL TERM Ressinger’s home. Debora Webb and Jody Ressinger testified they would welcome Reginald living in their homes. Mikaela is intelligent, mature for her years, and doing well in school. Reginald seems immature for his years. She and Reginald state that they get along with each other. Reginald loves sports. He plays football, basketball and runs track at school. He has a significant number of tardies at school. His grades went down considerably this year, although he is now doing better. He acknowledged having difficulties in school, and when asked why, he said it is because he does not do his homework. He stated: I don’t know why I’m not doing my homework because I just go home and go to sleep because, like, I can’t really go outside because most of the kids down there that I’m friends with they do bad things, they smoke and stuff, and I don’t want to be a part of that. Q If you are inside, why don’t you do your homework? A I just go to sleep because, like, homework is boring. I just don’t like to do it. Reginald said that his mother gets upset when he does not do his homework. His teachers have told the mother that he is a bright kid, but lazy. When asked why he wanted to live with his father, Reginald stated: A Because I know more people over here, and like the school in Steelton it’s like Steelton school is like there’s always fights and stuff. It’s always in the newspaper, and kids just like to pick on people for no reason, and not all the teachers, but like one or two of them were weird, well, not weird but mean, but that’s just teachers. Q Have you gotten in any fights yourself since you have been over there? A Yes. Q How many? A Like two. Q Were you in any fights in school before you ever went over there? A Before? -4- - 02-0851 CIVIL TERM Q Yeah. A Not at Wilson, not Cumberland Valley, but I think like in fifth grade last time I got in a fight at Carlisle. Q These two fights over there, did you win them or lose it or was it a draw? A A teacher stopped them. Reginald stated that he gets along well with Chisholm’s sixteen-year-old son, but not as well with Chisholm. He said: Well, [Chisholm] is, like, he’s always mean to me. I don’t know why. Like, I think it’s because like I’ve disrespected him before because he was, like, he was like – I keep saying like. He was, like, he was rude, and he’s been rude lately because I’m not sure why but he’s just been rude to me a lot. My mom’s been like – she’s been mad at like – if I say one thing, she just started yelling at me for no reason, but my sister says stuff and she never gets in trouble. I always get in trouble if I just say the wrong thing. Chisholm testified that he took Reginald to a football camp for several days last summer, and he really enjoyed the experience. When asked about it in chambers, Reginald had no memory of it. The mother and Chisholm testified that Reginald does fine in their household until it is time to go with his father. His whole persona changes before and after those visits. The father complained that the mother sometimes interferes with his every other weekend periods of physical custody. The mother testified that the father does not always show up to get Reginald for those periods, and that she has refused him his next weekend when that happens. She demands that he take both children for his periods of physical custody. Reginald testified that the weekend before the hearing he chose to go to a party rather than spend it with his father. In the summer of 2005, the father exercised none of his periods of physical custody with his children, which were to be two weeks with him and one week with the mother on -5- - 02-0851 CIVIL TERM an alternating basis until school resumed. When asked about that, Reginald said that he did not remember much about the summer of 2005. The father did resume his every other weekend periods with both children when school resumed last fall. A determination of a child’s best interest is on a case-by-case basis, and is to be premised upon consideration of all facts that legitimately affect the child’s Alfred v. Braxton, physical, intellectual, moral and spiritual well-being. 442 Pa. Super. 381 (1995). The preference of a child in a custody case, although not controlling, is a factor to be considered as long as it is based on good reasons. EAL v. LJW, 662 A.2d 1109 (Pa. Super. 1995). The child’s maturity and Cardamone v. Elshoff, intelligence must be considered. 659 A.2d 575 (Pa. Watters v. Watters, Super. 1995). In 757 A.2d 966 (Pa. Super. 2000), the Superior Court of Pennsylvania stated: . . . where possible, siblings should be raised together absent “compelling reasons” to do otherwise. Pilon v. Pilon, 342 Pa.Super. 52, 492 A.2d 59, 60 (1985). In examining the meaning of the term compelling reasons, this Court asked a question pertinent here, that is, “did the evidence indicate that it was ‘necessary’ to separate the children, was the evidence ‘forceful’ in this regard, or was it, in other words, ‘compelling.’” Id. However, this policy is a consideration in rather than a determinant of custody arrangements. Wiskoski v. Wiskoski, 427 Pa.Super. 531, 639 A.2d 996 (1993) . . . In the present case, the animosity between the parents is high. They have little communication regarding their children. Having been involved with them over the years, our impression is that there is limited hope for improvement. Reginald needs counseling, and firm parental control. Simply changing schools and the custodial arrangement is not the answer at this point. We find it -6- - 02-0851 CIVIL TERM inexplicable that the father is now seeking to be a full-time parent and to separate his children when he failed to exercise any of his extensive periods of temporary physical custody last summer. The evidence is not that forceful that it is necessary to separate the children. The father is reacting, understandably, to his son’s stated desire to move to Carlisle. However, there is potential harm that can result from the disruption of established patterns of care and emotional bonds that underscores the need for continuity and stability to custody agreements. It is not in Reginald’s best interest to transfer his custody to the father at this time. For the foregoing reasons, the following order is entered. ORDER OF COURT IT IS ORDERED: AND NOW, this day of March, 2006, (1) The petition of Reginald Oberton to modify the custody order of IS DENIED. October 4, 2004, (2) The parents shall undertake together not less than three sessions of counseling devoted to improving their parenting skills and cooperation involving the care of their children. The mother shall arrange for these sessions at InterWorks, 4335 N. Front Street, Harrisburg, Pennsylvania, when they are both off work, and they shall divide the cost. (3) The mother shall arrange for general counseling for Reginald to deal with his various difficulties. Both parents shall sign any consents necessary to obtain this counseling, and shall participate to the extent requested by the counselor. To the extent such services are not covered by insurance by either the mother or father or both, the parents shall divide the costs. -7- - 02-0851 CIVIL TERM By the Court, Edgar B. Bayley, J. James Nealon, Esquire For Plaintiff Paul Orr, Esquire For Defendant :sal -8- -