HomeMy WebLinkAbout94-6535 CivilJEFFREY R. FISHER,
Plaintiff
Ve
EVA J. SWAINCOTT,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-6535 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., March 19, 1996.
In this custody case the mother of a six-year-old boy has
appealed to the Superior Court pro sex from an order awarding her
shared legal and physical custody. The order appealed from
provides in pertinent part as follows:
AND NOW, this 3rd day of January, 1996,
... [i]t is ... ORDERED and DIRECTED as
follows:
1. Legal custody of the child[, Daniel
K. Fisher, born September 14, 1989,] shall be
shared by the parties.
2. Physical custody of the child shall
be shared by the parties as follows:
a. Mother shall have physical
custody of the child during his
period of summer vacation, with the
exception of two non-consecutive
weeks to be selected by the father;
on alternating weekends from Friday
at 8:00 p.m. until Sunday at 1:00
p.m.; and during the child's
Christmas vacation.
b. Father shall have physical
custody of the child at all other
times.
Appellant was represented in this court by Legal Services.
NO. 94-6535 CIVIL TERM
3. Transportation for the exchanges of
custody provided for herein shall be the
responsibility of the father.2
In a statement of matters complained of on appeal, the mother
has set forth the following bases for the appeal:
1. The evidence does not support a
transfer of the child from the mother's
custody during the school year for reasons
including the following:
a. The father has a history of
alcohol abuse including involvement
in a car accident while intoxicated
which resulted in a death, and he is
at risk of abusing alcohol in the
future.
b. The father attends at least
17 Alcoholics Anonymous meetings
each week, which minimizes the
amount of time he can spend with his
child.
c. The mother has been the
child's primary caretaker since his
birth.
d. The mother has consistently
provided for the child's emotional,
physical, spiritual, and educational
needs.
e. The mother is employed in
her home as a child care provider,
and she, therefore, is able to care
for her child every day.
Order of Court, January 3, 1996.
2
NO. 94-6535 CIVIL TERM
f. The father, despite having
adequate means to pay child support,
has chronically been delinquent in
his support obligation, evidencing
lack of regard for his child's well-
being.3
This opinion in support of the court's order is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
FINDINGS OF FACT
The subject of these proceedings is Daniel Kenneth Fisher, the
six-year-old child of Plaintiff and Defendant, born September 14,
1989.4 Plaintiff is Jeffrey Robert Fisher, 40 (d.o.b. February 16,
1956), who resides at 1402 East Moyamensing Avenue, Philadelphia,
Pennsylvania.s Defendant is Eva Swaincott, 48 (d.o.b. February 22,
1948), who resides at No. 1, 102 West Big Spring Avenue, Newville,
Cumberland County, Pennsylvania.6
Plaintiff father is an analyst for Coopers and Lybrand, a
public accounting firm, earning about $28,000.00 per year.7 He
3 Appellant's Statement of Matters Complained of, filed
February 8, 1996.
4 N.T. 5, 15-16 (September 26, 1995) (testimony of Jeffrey R.
Fisher); N.T. 77 (December 29, 1995) (testimony of Eva Swaincott).
s N.T. 4 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
6 N.T. 77, 129 (December 29, 1995) (testimony of Eva
Swainco~t).
7 N.T. 5, 121 (September 26,
Fisher); N.T. 44-45 (December 29,
Fisher).
1995)
1995)
(testimony of Jeffrey R.
(testimony of Jeffrey R.
NO. 94-6535 CIVIL TERM
served in the United States Navy for 13 years.8 He is a high
school graduate, and attended a community college in Richmond,
Virginia.9 He lives in a two-bedroom apartment in South
Philadelphia.1°
Defendant mother is on public assistance and supplements this
income by earning $90 or less per month babysitting in her home;
her rent of $430 per month is paid by HUD.~1 She most recently
worked for the Commonwealth of Pennsylvania for several months in
1994, but left this employment after allegedly being injured on the
job.~2 Her claim for workers' compensation was in litigation as of
a hearing in the present case on December 29, 1995.~3
Defendant's educational background was not testified to at the
hearing. She lives in a two-bedroom house in Newville.14
" N.T.
Fisher) .
9 N.T.
Fisher) .
10
Fisher) .
11 N.T.
Swaincott ) .
12 N.T.
Swaincott ) .
~3 N .T.
Swaincott ) .
14
5 (September 26, 1995) (testimony of Jeffrey R.
4-5 (September 26, 1995) (testimony of Jeffrey R.
N.T. 4, 170 (September 26, 1995) (testimony of Jeffrey R.
91-93 (December 29, 1995) (testimony of Eva
87, 91 (December 29, 1995) (testimony of Eva
151-52 (December 29, 1995) (testimony of Eva
N.T. 89 (December 29, 1995) (testimony of Eva Swaincott).
NO. 94-6535 CIVIL TERM
Plaintiff father is a recovering alcoholic.~s In 1989 he was
involved in an automobile accident in which he was seriously
injured and the other driver killed.~6 He pled guilty as a result
of the accident to driving under the influence,~7 received a prison
sentence of 3 to 23 months, and served the sentence in an alcohol
rehabilitation facility.~B
The father has had nothing alcoholic to drink since the
accident in 1989.~9 He attends at least 10 AA meetings a week,
often at lunchtime.2°
Defendant mother has a history of mental illness2~ and several
~s N.T. 6 (September 26, 1995)
Fisher).
(testimony of Jeffrey R.
~6 N.T. 13 (September 26, 1995)
Fisher).
(testimony of Jeffrey R.
~7 The other driver was also drinking. N.T. 13 (September 26,
1995) (testimony of Jeffrey R. Fisher). Evidently, the
Commonwealth did not believe it could prove the element of
causation in a vehicular homicide or involuntary manslaughter
prosecution against Plaintiff. Id.
~B N.T. 14 (September 26, 1995)
Fisher).
(testimony of Jeffrey R.
~9 N.T. 15 (September 26, 1995)
Fisher).
(testimony of Jeffrey R.
20 N.T. 15 (September 26, 1995)
Fisher).
(testimony of Jeffrey R.
2~ N.T. 152-53, 155-57 (December 29, 1995) (testimony of Eva
Swaincott).
NO. 94-6535 CIVIL TERM
unsatisfactory relationships.2~ She has had at least eight
residences since the child's birth in 1989,23 in addition to three
hospitalizations for psychiatric treatment.24
The parties met around 1986, when Defendant was a friend of
Plaintiff's then-wife.25 When Plaintiff and his wife separated in
October of 1988, Defendant asked him to become her roommate.26
Plaintiff moved into Defendant's apartment in November of
1988.27 After a few weeks, Plaintiff realized that their
personalities were not compatible, and he suggested that she find
another roommate as soon as possible.~8 Defendant responded by
changing the locks on her apartment and notifying Defendant through
~ N.T. 9-10 (several-week residence with Plaintiff in 1988)
(September 26, 1995) (testimony of Jeffrey R. Fisher); N.T. 82-83
(six-month marriage in 1991), N.T. 84 (six-month residency with
fianc~ in 1992-93) (December 29, 1995) (testimony of Eva
Swaincott).
23 N.T. 19-26 (September 26, 1995) (testimony of Jeffrey R.
Fisher); N.T. 80-89 (December 29, 1995) (testimony of Eva
Swaincott).
24 N.T. 152-53 (December 29, 1995) (testimony of Eva
Swaincott).
2s Plaintiff's Exhibit 8, at 1; N.T. 7-8 (September 26, 1995)
(testimony of Jeffrey R. Fisher).
26 N.T. 7-8 (September 26, 1995) (testimony of Jeffrey R.
Fisher). Defendant had apparently secured the approval of
Plaintiff's wife before doing so. Id. at 7.
27 N.T. 10 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
28 N.T. 11 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
NO. 94-6535 CIVIL TERM
the police not to return to the residence.29
During their liaison of several weeks, however, the parties'
child was conceived.3° Their son was born on September 14, 1989.3~
Defendant mother named the child Daniel Kenneth Rogers (her
last name), listed the father as unknown on the birth certificate,32
and gave the child up to adoptive parents33 without Plaintiff's
knowledge.34 She then decided that she wanted the child back,
contacted Plaintiff, revealed his existence to the adoptive
parents, and succeeded after several months in getting the child
from them.3s
Defendant mother has been the child's primary caretaker during
most of his life.36 However, his childhood has been somewhat
troubled.
29
Fisher) .
30 N.T. 10 (September 26, 1995)
Fisher) .
3~ N.T. 15 (September 26, 1995)
Fisher) .
N.T. 11-12 (September 26, 1995) (testimony of Jeffrey R.
(testimony of Jeffrey R.
(testimony of Jeffrey R.
Swaincott ) .
~6 N.T.
Swaincott ) .
77-78 (December 29, 1995) (testimony of Eva
N.T. 127, 129-30 (December 29, 1995) (testimony of Eva
Swaincott).
N.T. 130 (December 29, 1995) (testimony of Eva Swaincott).
Id.
N.T. 93-94, 138, 140 (December 29, 1995) (testimony of Eva
NO. 94-6535 CIVIL TERM
At the age of two, Daniel was still unable to speak - he could
mutter only a few words.37 He was a beneficiary on a protection
from abuse order against a man whom Defendant married in 1991.38
By the summer of 1993, he was still not toilet trained; he was
running in front of cars, breaking toys, and telling Defendant he
wanted to kill her and cut off her head; and he could not be
controlled by Defendant.~9 In addition, Daniel's living conditions
were the subject of frequent alteration due to Defendant's changes
of residence and mental difficulties.4°
Eventually the child was diagnosed with oppositional defiant
disorder - 4~ a rare condition for a person so young.42 He has been
treated by a psychotherapist, among others,43 and his situation has
been reviewed by county children's agencies.~
3~ N.T. 33
Fisher).
38 N.T. 27
Fisher); N.T.
Swaincott).
(September 26, 1995) (testimony of Jeffrey R.
(September 26, 1995) (testimony of Jeffrey R.
82-83 (December 29, 1995) (testimony of Eva
N.T. 149 (December 29, 1995) (testimony of Eva Swaincott).
See text accompanying notes 21-24 supra.
N.T. 6 (December 29, 1995) (testimony of Georgetta
Anderson);
Closs) .
42
43
44
N.T. 14-15 (December 29, 1995) (testimony of Alissa
N.T. 16 (December 29, 1995) (testimony of Alissa Closs).
N.T. 18 (December 29, 1995) (testimony of Alissa Closs).
N.T. 14 (December 29, 1995) (testimony of Alissa Closs).
8
NO. 94-6535 CIVIL TERM
At this time, Daniel suffers from considerable anxiety.4s He
is abnormally self-conscious, and becomes humiliated at mistakes or
failures.46 He is also angry.47
Plaintiff father has made himself available to care for the
child when Defendant has been unable to be primary custodian.4g In
addition, he has persevered during the child's life in exercising
his rights of partial custody, notwithstanding difficulties with
transportation49 and a less than encouraging attitude on the part
of Defendant toward the father/son relationship.
Defendant has, for instance, failed to be at home for
Plaintiff's scheduled visitations,so refused to exchange greetings
with Plaintiff during custody transfers,s~ and instructed him not
~s N.T. 61 (September 26, 1995) (testimony of Dr. Pauline
Wallin).
46 N.T. 107 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
47 N.T. 39 (December 29, 1995)
Fisher).
(testimony of Jeffrey R.
4g N.T. 29-31 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
4~ See, e.g., N.T. 60-61 (December 29, 1995) (testimony of
Marilyn Berger).
s0 N.T. 21 (September 26, 1995) (testimony of Jeffrey R.
Fisher); N.T. 61 (December 29, 1995) (testimony of Marilyn Berger).
s~ N.T. 115-16 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
NO. 94-6535 CIVIL TERM
to come to her door during such transfers,s2 She once rejected a
letter from Plaintiff attempting to schedule visitation on the
ground that he had not addressed her by her newly married name; she
returned the letter to him with the notation, "Please submit a
correct name and at that time the above will be considered.''s3
Defendant has made disparaging remarks about Plaintiff in the
child's presence, such as calling him a liar and claiming that he
threatened to chop off her head.~4 She told the child that his
father had killed someone.~s She told him that his father should
be in jail because he did not pay child support,s6
The father's relationship with Daniel is a relatively good
one.~7 Significantly, he does not have difficulty exercising
control over his son.~B
~2 N.T. 115 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
~3 N.T. 32 (September 26, 1995) (testimony of Jeffrey R.
Fisher); Plaintiff's Exhibit 1. Plaintiff had been unaware that
Defendant's name had changed. N.T. 32 (September 26, 1995)
(testimony of Jeffrey R. Fisher).
~4 N.T. 54 (September 26, 1995) (testimony of Dr. Pauline
Wallin); Plaintiff's Exhibit 8, at 3.
s~ N.T. 54-55 (September 26, 1995) (testimony of Dr. Pauline
Wallin); N.T. 112 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
~ N.T. 113 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
~7 N.T. 63 (December 29, 1995) (testimony of Marilyn Berger).
sB N.T. 63 (December 29, 1995) (testimony of Marilyn Berger).
10
NO. 94-6535 CIVIL TERM
Plaintiff father recognizes the importance of not undermining
the child's confidence in his mother.59 He understands that the
child should not be put in a position of making choices between his
parents.6° He realizes the value of the child's continued
relationship with his mother.6~
Although the Plaintiff has recently made regular child support
payments,62 accumulated arrearages appear to total about
$11,500.00.63 Part of the arrearage is attributable to a
retroactive application of the support order.64 However, another
part of it resulted from a conscious decision on the part of
Plaintiff to apply his resources - in an amount in excess of
$10,000.00 - to attorney's fees in connection with the custody
proceedings,65 and to his rationalization that his support payments
s9 N.T. 117 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
60 N.T. 128 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
~ N.T. 128 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
62 N.T. 124, 150 (September 26, 1995) (testimony of Jeffrey
R. Fisher).
63 N.T. 75 (December 29, 1995).
64 N.T. 124 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
65 N.T. 122 (September 26, 1995) (testimony of Jeffrey R.
Fisher). Of this amount, three thousand dollars remains a debt on
his credit card account. Id. at 123.
11
NO. 94-6535 CIVIL TERM
were going not to the child but to the welfare department.66
As the result of a communication from a Lebanon County
children's agency, Plaintiff filed a complaint for primary physical
custody of Daniel.67 Defendant moved to Cumberland County, and the
action was transferred to this court.68
At a custody conciliation conference in Cumberland County on
February 24, 1995, the parties agreed to submit themselves and the
child to an independent custody evaluation. Pending a report by
the evaluator and further order of court, the parties stipulated to
an order whereby they were to share legal custody of Daniel, the
mother was to have primary physical custody and the father was to
have temporary physical custody on alternating weekends.69
Dr. Pauline Wallin, a licensed clinical psychologist
associated with a cor~munity mental health center in Cumberland
County conducted the independent custody evaluation.7° Dr. Wallin
received her Ph.D. in clinical psychology from the University of
Fisher ) .
Fisher) .
Conference Summary Report).
~0 Plaintiff's Exhibit 8.
Plaintiff's Exhibit 8, at 5.
N.T. 38-40 (September 26, 1995) (testimony of Jeffrey R.
N.T. 41-42 (September 26, 1995) (testimony of Jeffrey R.
Order of Court, March 2, 1995 (and attached Conciliation
12
NO. 94-6535 CIVIL TERM
Minnesota in 1974.TM She has been in practice since that time, and
her practice involves evaluations in custody cases.72 Her
procedures in this case included the following:
1. Interviews with Danny alone, and with
each parent
2. Interviews with Danny's mother, Eva
Swaincott
3. Interviews with Danny's father,
Jeffrey Fisher
4. Play observations of Danny alone, and
with each parent
5. Psychological testing of each parent
(MMPI)
6. Interview with Danny's godparents,
Hank and Barbara White
7. Interview with Danny's paternal
grandmother, Marilyn Berger
8. Interview with Mr. Fisher's former
girlfriend, Pat O'Connor
9. Review of hospital records, county
records and parents' documents ~3
The Summary and Conclusions of Dr. Wallin's nine-page report
were as follows:
5-year-old Danny has been in his mother's
legal custody for most of his life, but not
necessarily in his mother's care. Mrs.
Swaincott has had several personal crises, and
although she claims that she has her life
under control, there are still questions about
her judgment and her ability to provide for
Danny's best interests. She maligns Danny's
father in the boy's presence without thought
7~ N.T. 47 (September 26, 1995) (testimony of Dr. Pauline
Wallin).
72 N.T. 47 (September 26, 1995) (testimony of Dr. Pauline
Wallin).
Plaintiff's Exhibit 8, at 1.
13
NO. 94-6535 CIVIL TERM
for his feelings. Danny seems more to serve
her own needs than vice versa.
While Mr. Fisher is not perfect, his life has
been more stable over the past few years. He
is more sensitive to Danny's feelings, and
better able to maintain consistency in the
boy's life.
If Danny stays with his mother, he will suffer
much ambivalence and conflict concerning his
feelings for his father. His mother has done
nothing to encourage a close relationship
between Danny and his father. To the contrary,
because of her own narcissistic needs, she
continually sabotages the relationship.
Furthermore, given her most recent history,
there is no evidence that her life is any more
stable for the long run, than it has been in
the past.
If Danny lives with his father, there will be
an adjustment period. Mr. Fisher leads a much
more structured and routinized life than does
Mrs. Swaincott, but this is what Danny needs.
At first he will probably rebel, but will
eventually settle down.
Mr. Fisher emphasized that if he retains
custody of Danny, he would encourage Danny to
maintain a close relationship with Mrs.
Swaincott. He would also allow Mr. and Mrs.
White (Danny's godparents) to visit. In
addition, he would like to get Danny more
involved with his aunts and uncle, and be part
of an extended family.TM
The court was impressed with the report and testimony of this
experienced expert in custody and psychology. In recommending that
Defendant father be awarded primary physical custody of Daniel, Dr.
Wallin testified that her opinion was a firm one, and that she did
Plaintiff's Exhibit 8, at 9.
14
NO. 94-6535 CIVIL TERM
not regard the matter as a close case.?s
In evaluating the testimony of the parties, the court found
Plaintiff's statements, including those concerning his motivation
in this proceeding, to be credible. It found his interest in the
child's welfare to be unselfish and genuine. And it found his
concerns with respect to the child's progress while in the mother's
care to be well-founded.
The testimony of Defendant, while leaving no question that she
loved the child and was deeply attached to him, did not compare in
terms of candor with the father's, in the court's view. The court
did not believe, for instance, that Defendant did not have "any
problem at all" with her son's having a close relationship with his
father.TM It did not believe that she had tried to be friends with
the father "for Daniel's sake.''7~ It did not find credible
Defendant's testimony that her signature had been forged on an
agreement temporarily transferring custody to the father.TM
Defendant's answers in her testimony were also at times
evasive or misdirectional:
75
Wallin) .
77
N.T. 64-65 (September 26, 1995) (testimony of Dr. Pauline
N.T. 124 (December 29, 1995) (testimony of Eva Swaincott).
N.T. 125 (December 29, 1995) (testimony of Eva Swaincott).
N.T. 78-79 (December 29, 1995) (testimony of Eva
Swaincott); Plaintiff's Exhibit 8.
15
NO. 94-6535 CIVIL TERM
Q Were you ever diagnosed with bipolar
disorder?
A
79
Not by anyone I've ever seen, no.
Q Ail right. Did you tell [Plaintiff]
where you were going to be [for a certain
hospitalization]?
A
I was.
Uh-huh. The White's also knew where
Q I didn't ask you - I'm sure they
did. I'm asking you about Jeff. You had
testified that Danny came home from that visit
angry and you were upset at that. Do you
remember that?
A Also, sir, while I was in the
hospital, I had asked Jeff to bring Daniel to
see me. And he finally agreed. My son, who
was about three years old, came to see me
while I was in the hospital, and he acted like
he didn't even know me. He acted like he
hated me. I had gifts for him that I had made
him. He didn't want them.8°
Q And you didn't tell Mr. Fisher about
Danny's counseling at the Helen Stevens Mental
Health Center [in Cumberland County]?
A No. Sir, we were ordered by
Children and Youth to go through certain
procedures as a service of Children and Youth.
Mr. Fisher had to go to classes for parenting.
79 N.T. 156 (December 29, 1995) (testimony of Eva Swaincott).
Defendant later conceded that a psychiatrist had diagnosed
her as having bipolar disorder. N.T. 157 (December 29, 1995)
(testimony of Eva Swaincott).
80 N.T. 154 (December 29, 1995) (testimony of Eva Swaincott).
16
NO. 94-6535 CIVIL TERM
I had to go to classes for parenting. I had
to take Daniel to a therapist. I had to see a
therapist. Different things like that.
now?
Q
Are you talking about Lebanon County
A Yes. 8~
During cross-examination, Defendant posed the question,
"Shouldn't [Plaintiff] call his son up to say hello?""2 This was
revealed to be less than ingenuous, when she later conceded that
her attorney had instructed Plaintiff not to call her residence
except to leave a message on the answering machine."3
The Plaintiff father is versed in the care of children through
his custodial periods with Daniel,"~ babysitting with other people's
children,ss and completion of parenting classes provided by a
community agency.86 His residence in South Philadelphia is in a
neighborhood with many children."7
N.T. 146 (December 29, 1995) (testimony of Eva Swaincott).
N.T. 168 (December 29, 1995) (testimony of Eva Swaincott).
N.T. 169-70 (December 29, 1995) (testimony of Eva
Swaincott).
~4 See,-e.g., N.T. 31 (September 26, 1995) (testimony of
Jeffrey R. Fisher).
.s N.T. 39 (December 29, 1995) (testimony of Jeffrey R.
Fisher).
"6 N.T. 42 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
.7 N.T. 127 (September 26, 1995) (testimony of Jeffrey R.
Fisher).
17
NO. 94-6535 CIVIL TERM
There is a playground a block away.88 A learning center called
Discovery Schools lies across the street, and another center known
as Yellow Brick Road is nearby; both of these facilities provide
services through the first grade.89 There is a parochial school in
the neighborhood as well.9°
On balance, the court believed that Plaintiff father had a
clearer view of the child's needs at this time in his life, and a
better ability and stronger desire to meet those needs. It also
felt that the father displayed more ~of a willingness to encourage
a continuation of the child's relationship with the other parent.
DISCUSSION
The Pennsylvania Superior Court has expressed the
responsibility of a court in a child custody case in the following
terms:
The paramount concern in a child custody case
is the best interests of the child. A
determination of the best interests of the
child is based on consideration of all factors
which legitimately have effect upon the
child's physical, intellectual, moral and
spiritual well-being. The court in a custody
action has the obligation to consider all
relevant factors that could affect the child's
well-being.
88 N.T.
Fisher) .
"9 N.T.
Fisher ) .
90 N.T.
Fisher) .
127 (September 26,
1995)
169 (September 26, 1995)
169 (September 26, 1995)
(testimony of Jeffrey R.
(testimony of Jeffrey R.
(testimony of Jeffrey R.
18
NO. 94-6535 CIVIL TERM
E.A.L, Sr. v.L.J.W., Pa. Super. __, , 662 A.2d 1109, 1112
(1995) (citations omitted); see Hicks v. Allport, No. 95-2646 Civil
Term (Cumberland Co. February 29, 1996) (Bayley, J.).
"[W]ho should have custody of a child is a legal decision for
the court alone to make, not for a psychiatrist or psychologist."
L.D. v. B.D., 291 Pa. Super. 589, 600, 436 A.2d 657, 663 (1981).
On the other hand, the testimony of an expert in a custody case is
a proper subject for consideration by the court. Rinehimer v.
Rinehimer, 336 Pa. Super. 446, 485 A.2d 1166 (1984).
"Positive weight is [also] to be given to the primary care
provider .... " Hicks v. Allport, No. 95-2646 Civil Term
(Cumberland Co. February 29, 1996) (slip. op. at 6) (Bayley, J.);
see R.A.R. v. T.M., 434 Pa. Super. 592, 644 A.2d 767 (1994).
However, the Pennsylvania Supreme Court "has held that custody can
be changed without proof of substantial change in circumstances
when it is shown that the change is in the best interest of the
child." Moore v. Moore, 535 Pa. 18, 30, 634 A.2d 163, 169 (1993).
Another important factor for a court's consideration in
custody cases, particularly where the parties reside at some
distance from each other, is which parent would best encourage and
foster a continuing relationship with the other parent. See Moore
v. Moore, 535 Pa. 18, 634 A.2d 163 (1993). In addition, the
salutary effect of a stable environment upon a child should not be
disregarded. See Cardamone v. Elshoff, 442 Pa. Super. 263, 659
19
NO. 94-6535 CIVIL TERM
A.2d 575 (1995).
In the present case, a number of considerations led the court
to conclude that the best interests of Daniel would be served by an
order awarding the parties joint legal custody, and prescribing a
physical custody arrangement whereby the mother would have physical
custody during most of the summer, on alternating weekends during
the school year, and during Christmas vacation; the father would
have physical custody during the majority of the school year; and
transportation for custodial exchanges would be the responsibility
of the father. These considerations included the following:
1. The desirability of a continuation of
the relationship between the child and mother,
heretofore his primary caretaker, through
substantial periods of physical custody;
2. The enhanced likelihood of a more
stable environment in the father's home;
3. The difficulties which the child has
experienced while primarily in the mother's
care;
4. The greater willingness on the part
of the father to encourage the relationship
between the child and other parent;
5. The father's more perceptive
understanding of the child's needs at this
time; and
6. The well-supported opinion of the
independent custody evaluator, whose report
was sought by both parties in this case.
20
NO. 94-6535 CIVIL TERM
Thomas J. Williams, III, Esq.
10 East High Street
Carlisle, PA 17013
Joan Carey, Esq.
Legal Services, Inc.
8 Irvine Row
Carlisle, PA 17013
Eva Swaincott
No. 1, 102 West Big Spring Avenue
Newville, PA 17241
Defendant, Pro Se
: rc
21