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HomeMy WebLinkAbout2000-1116 Civil ANGELA MURPHY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 00-1116 CIVIL SCOTT MURPHY, Defendant IN RE: CUSTODY OPINION AND ORDER This case involves the custody of two very bright and talented lads, Logan, born October 21, 1993, and Connor, born May 18, 1995. Both parents seek primary physical custody. This case involves the classic difficulty presented when both the plaintiff and defendant are excellent parents. Unfortunately, equal shared physical custody is not possible because the mother resides in the Lancaster area and the father resides in Boiling Springs, Cumberland County. The parties were married in August of 1991 and separated in February of2000. The separation was extremely stressful, at times tumultuous. Following separation, the boys remained in the primary custody of their mother, the plaintiff Angela Murphy. The father, defendant Scott Murphy, had frequent and liberal periods of custody which were mutually agreed to by the parties. This arrangement continued until the mother expressed a desire to move to Iowa with the boys. Learning of the mother's desire to relocate, Mr. Murphy filed a complaint for custody. In the end, the mother's request to relocate was denied but she was awarded primary physical custody of the children. An order was entered in the spring of 2002 providing for primary physical custody in the mother during the school year, shared holidays and primary physical custody during the summer in the father. This order has remained in effect even though the mother has moved to the Lancaster area. The children continue to attend school in South NO. 00-1116 CIVIL Middleton Township, Cumberland County, with the mother providing transportation on those days when she has custody. Under the existing arrangement, the mother has more overnight custody than the father. This has prompted her to argue this case as a relocation matter governed by Gruber v. Gruber, 583 A.2d 434 (Pa.Super. 1990). In light of the plaintiffs arguments, the defendant counters that plaintiff has failed to meet her burden of proof with regard to the standards set out in Gruber. We believe, however, that this case involves more than the decision of a primary custodian to relocate. Instead, we take our guidance from the case of McAlister v. McAlister, 747 A.2d 390 (Pa. Super. 2000). Admittedly, McAlister involved a fifty/fifty overnight arrangement as opposed to the overnight situation presented here of fifty-eight percent to forty-two percent. This is a case, however, where both parents are equally involved in the lives of their children. In McAlister, the trial court considered the mother's request to relocate out of state. In doing so, it considered the Gruber factors only insofar as they related to the mother. The Superior Court observed, citing Thomas v. Thomas, 739 A.2d 206 (Pa.Super. 1999), that where there is an equal shared custody arrangement, there are essentially two primary family units and both must be scrutinized in the examination of competing custodial environments. McAlister at 392. The court went on to explain that the trial judge had erred in focusing entirely upon a Gruber analysis. The court noted: Finally, we conclude that the trial court has not adequately considered, ultimately, the best interest of the children. While the trial court acknowledged that the Gruber analysis is but a part of the "best interest of the children" test, the trial court failed to comprehensively examine the best interest of the children. "The trial court improperly limited its analysis to the Gruber factors, 2 NO. 00-1116 CIVIL improperly focused on Mother as a primary custodial parent, and failed to even consider the possibility of the children living with the Father." ... For instance, the trial court failed to make findings regarding Father's and Mother's fiance's fitness as parents. Moreover, aside from stating that Father takes the children to church on the weekends, the trial court failed to consider Mother's and Father's religions, their mental and physical status, or other factors which legitimately effect the children's physical, intellectual, moral, and spiritual well being. Similarly, we will consider this case in light of Gruber, but do so only as part of the overarching inquiry into the best interest of the children. The mother currently resides in Lititz, Lancaster County. She lives with her fiance, Rob Morgan. She moved in with Mr. Morgan when her lease, in South Middleton Township, expired and she experienced financial difficulty in obtaining another home locally. N.T. 15. She currently takes the children to and from school on days when she has custody. This is not a desirable situation since the commute is approximately one hour each way. Ms. Murphy proposes that she have primary physical custody during the school year and that her husband, Scott, have custody for most of the summer. N.T. 25-26. She observes that she has been the primary custodian of the children since separation. She describes herself as being very organized. This is particularly important for the child, Connor, who suffers from Asperger's syndrome. Connor requires structure and routine. He also benefits from physical activity and from sports at which he can succeed. N.T. 32. Connor takes medication both in the morning and the evening. Angela faults Scott for being less responsible than she is about Connor's medication. 3 NO. 00-1116 CIVIL Angela acknowledges that both she and her husband are active in the school life of their children. Scott is particularly capable in helping the children with their math and/or science homework. N.T. 36. She agrees that both parents take responsibility for doctor's appointments though she is more involved in other routine matters, such as haircuts. She takes the children to CCD classes (the family is Roman Catholic) but she agrees that Scott takes the children to church on a regular basis. She faults Scott as being unorganized and a procrastinator, and feels, therefore, that the boys would be better off being with Scott during non-school times which have fewer scheduling demands. Much to her credit, Ms. Murphy acknowledges that the children are doing well in the South Middleton School District. She has explained to the children that they might be going to school in Manheim, Pennsylvania, but has not pushed the issue. The boys are straight-A students. They have "very nice friends." They do well in sports. They are, in essence, thriving in their current schooling. N.T. 59. On cross-examination, Ms. Murphy underscored the fact that it would be impossible for her and her fiance to move to the South Middleton School District. This is because her fiance works in Philadelphia. Mr. Morgan also testified about these matters. He indicated that it would be far more convenient for him were he and Angela to reside in Philadelphia, but recognizes Angela's concern that this would place the children too far from their father. It is not clear to us, however, whether this statement of concern is grounded in a desire to foster the boys' relationship with their father or whether it is to make the mother's move more palatable in the context of the custody litigation. At any rate, Mr. Morgan enjoys a good relationship with 4 NO. 00-1116 CIVIL Connor and Logan. He does not, however, attend events with them when Scott Murphy is there. The boys, apparently, find that to be awkward. The children's father, the defendant in this case, resides in Boiling Springs, Pennsylvania. He has been living with a girlfriend, Sandra Knepper, for more than two years. Mr. Murphy testified with respect to the close connection between the children and the South Middleton School District. He has had the opportunity to compare it with the Manheim District and notes that South Middleton is much smaller. Staying in his current school will spare Connor, particularly, the "social introduction issues" which accompany Asperger's syndrome. N.T. 162. He is concerned that in a lager school district, his sons will not have the same leadership opportunities which they have enjoyed in South Middleton. Mr. Murphy went on to describe, at great length, the enormous success which his sons have enjoyed in school. He notes that, in addition to having excellent grades, Logan plays football, softball and wrestling and was elected student council president. It is clear that Mr. Murphy is heavily involved in the activities of his children. While it is clear that the mother, in this case, has tended to more of the routine details in the lives of her children, the father is involved on such a regular basis as to make him an equal influence on the children. He is at the heart of their sports activities which is particularly important for Connor. Mr. Murphy oversaw Connor's involvement in a track program which has been particularly important to his development. N. T. 178. It is difficult, if not impossible, to imagine how the relationship of the father with his sons could continue in its existing form were the children to move to the Manheim School District. 5 NO. 00-1116 CIVIL Mr. Murphy admits that he is sometimes less than punctual. He does not concede, however, that he is otherwise disorganized. Scott indicates that his two sons have a wonderful relationship with his girlfriend, Sandra Knepper. By the same token, Ms. Knepper and Angela apparently do not get along. Ms. Knepper describes the children as affectionate to her, noting that the children become concerned when their mother is critical of her. The children were interviewed. We give their preference significant weight. Our courts have held that where households are equally suitable, the preference of the child can tip the scale on the question of custody. See McMillen v. McMillen, 602 A.2d 845 (Pa. 1992). While both homes, in this case, are suitable, we do not regard them as equal because of the positive consideration which must be given to the mother as primary, or at least majority, caretaker. Nonetheless, the preferences of the children are extremely important in this case. Suffice it to say that they stated a strong preference to remain in their current school and surrounded by their current friends. They seem to understand that this would entail a change in the custody arrangement and appeared accepting of it. Both children are very mature for their ages. School officials testified that Connor is socially well adjusted in a class with students who are not only competitive academically but close personally. The children who supply part of Connor's support system would be his classmates likely through his senior year in high school. As noted in the brief filed on behalf of the defendant, Scott's work situation puts him in a good position to care for the children. His office is close to both his home and the boys' school. He is in a position to provide for the children after school and to get them off to school in the 6 NO. 00-1116 CIVIL mormng. Angela points to a time when she may not have to work. This would make her available to the boys during those times of the year when they are not in school. In the meantime, the travel time between Boiling Springs and Lititz is approximately seventy minutes. Transfer to Manheim would be the end of Scott's role as an after school coach. The standards set out in Gruber v. Gruber, 583 A.2d 434 (Pa.Super. 1990) are well known. First, the relocating parent must demonstrate that the relocation will substantially improve the quality of life for both the parent and the children. Second, it must be established that the move is not motivated by any desire to deprive the children of the company of the person staying behind. Third, it must be demonstrated that there are realistic substitute visitation arrangements. We do not regard the move from South Middleton Township to Lititz to be one which will substantially improve the quality oflife for the children. We do not question Angela's motives in the move. It is clear that she will be happy living with Rob Morgan. Mr. Morgan's work situation necessitates the move and we do not suggest that the move is motivated by a desire to deprive the children of the company of their father. While substitute visitation is available, the relationship the children enjoy with their father would be radically altered by their relocation. We would not normally give such weighty consideration to the prospect of changing schools and the children's concerns in that regard. But in this case, involving two exceptionally capable parents, some factor must, of necessity, be decisive. The father has submitted two proposed orders in this case. The first order, which we will adopt with modifications, is slightly more generous to the mother than the second. Accordingly, we will enter an order similar to that proposed in our earlier hearing of October 21,2005. 7 NO. 00-1116 CIVIL ORDER AND NOW, this 7th day of April, 2006, after hearing, it is hereby ordered as follows: 1. The parties shall share legal custody of their children, Logan Thomas Murphy born October 21, 1993, and Connor Jacob Murphy born May 18, 1995. 2. The parties shall share physical custody of the children as follows: a. During the school year, the children shall reside with their father subject to the partial custody in their mother on the following schedule: (1) From alternating Thursdays after school until Monday morning when mother shall deliver the children to their schools or to their designated bus stop. (2) On the Monday following father's alternating weekend of custody from after school until Tuesday morning when she shall return the children to their schools or to their designated bus stop. (3) In the event that a school holiday falls on a Monday following a parent's custodial weekend, he or she may retain custody of the children until Tuesday morning. In the event that a school holiday falls on a Thursday or Friday during which a parent normally would have custody, he or she may commence their period of custody on Wednesday or Thursday after school. (4) At all other times, the children shall be in the custody of father and shall attend school in the South Middleton School District. b. During the summer, mother shall have custody of the children from the last day of school until the Sunday night preceding the resumption of school at 5 :00 p.m. Mother's period of summer custody shall be subject to the following: Alternating weekends with 8 NO. 00-1116 CIVIL father from Friday at 6:00 p.m. until Monday morning at 9:00 a.m. The party receiving custody of the children shall provide transportation. Further, the father shall enjoy seven (7) days of summer vacation with thirty (30) days' advance notice to the mother. c. The parties will alternate the Thanksgiving vacation break commencing on the day school is out until the morning when school resumes at which time the custodial parent shall return the children to school or to the designated bus stop. In 2006, Thanksgiving will be with the father. d. In 2006 and in following years, mother shall have custody of the children for their school's spring break beginning with the evening of the last day of school and continuing until mother drops the children off at school or at their bus stop on the first day of school following the holiday break. e. The children will be in the custody of father on Father's Day and with mother on Mother's Day from 5:00 p.m. on the day preceding until 8:00 p.m. on the day itself. f. The parties will alternate the fourth of July, with mother enjoying custody of the children from 8:00 a.m. until 10:00 p.m. in even-numbered years and father enjoying custody of the children at the same times in odd-numbered years. 9 NO. 00-1116 CIVIL Memorial Day and Labor Day will serve to extend the weekend for the parent who has custody. g. The parties will alternate blocks of time during the Christmas vacation each year. Block "A" shall be that period of time between the end of school and the middle of the Christmas break or December 26th, whichever is later. Block "B" shall commence on December 26th or the mid-point of the Christmas break, whichever is later, and end by the parent delivering the children to the school or to their bus stop on the first morning of school following the Christmas holiday. Blocks "A" and "B" will alternate with mother having Block "A" in even- numbered years and Block "B" in odd-numbered years, and father having Block "A" in odd-numbered years and Block "B" in even-numbered years. 3. It is intended that both parties be supportive of the activities of the children and transport them to and from such activities in time that the children are able to fully participate in those events. Both parents shall cooperate in providing transportation for a child to his activity. The custodial parent shall not be required to take the children to an activity if the custodial parent and the children are participating in a scheduled vacation or other family event. This order shall become effective as the parties shall agree and if they cannot agree same shall be effective on the first school day following April 16, 2006. BY THE COURT, Kevin A. Hess, 1. 10 Sandra Meilton, Esquire F or the Plaintiff Carol 1. Lindsay, Esquire F or the Defendant :rlm ANGELA MURPHY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 00-1116 CIVIL SCOTT MURPHY, Defendant IN RE: CUSTODY ORDER AND NOW, this 7th day of April, 2006, after hearing, it is hereby ordered as follows: 1. The parties shall share legal custody of their children, Logan Thomas Murphy born October 21, 1993, and Connor Jacob Murphy born May 18, 1995. 2. The parties shall share physical custody of the children as follows: a. During the school year, the children shall reside with their father subject to the partial custody in their mother on the following schedule: (1) From alternating Thursdays after school until Monday morning when mother shall deliver the children to their schools or to their designated bus stop. (2) On the Monday following father's alternating weekend of custody from after school until Tuesday morning when she shall return the children to their schools or to their designated bus stop. (3) In the event that a school holiday falls on a Monday following a parent's custodial weekend, he or she may retain custody of the children until Tuesday morning. In the event that a school holiday falls on a Thursday or Friday during which a parent normally would have custody, he or she may commence their period of custody on Wednesday or Thursday after school. (4) At all other times, the children shall be in the custody of father and shall attend school in the South Middleton School District. b. During the summer, mother shall have custody of the children from the last day of school until the Sunday night preceding the resumption of school at 5 :00 p.m. Mother's period of summer custody shall be subject to the following: Alternating weekends with father from Friday at 6:00 p.m. until Monday morning at 9:00 a.m. The party receiving custody of the children shall provide transportation. Further, the father shall enjoy seven (7) days of summer vacation with thirty (30) days' advance notice to the mother. c. The parties will alternate the Thanksgiving vacation break commencing on the day school is out until the morning when school resumes at which time the custodial parent shall return the children to school or to the designated bus stop. In 2006, Thanksgiving will be with the father. d. In 2006 and in following years, mother shall have custody of the children for their school's spring break beginning with the evening of the last day of school and continuing until mother drops the children off at school or at their bus stop on the first day of school following the holiday break. e. The children will be in the custody of father on Father's Day and with mother on Mother's Day from 5:00 p.m. on the day preceding until 8:00 p.m. on the day itself. f. The parties will alternate the fourth of July, with mother enjoying custody of the children from 8:00 a.m. until 10:00 p.m. in even-numbered years and father enjoying custody of the children at the same times in odd-numbered years. Memorial Day and Labor Day will serve to extend the weekend for the parent who has custody. g. The parties will alternate blocks of time during the Christmas vacation each year. Block "A" shall be that period of time between the end of school and the middle of the Christmas break or December 26th, whichever is later. Block "B" shall commence on December 26th or the mid-point of the Christmas break, whichever is later, and end by the parent delivering the children to the school or to their bus stop on the first morning of school following the Christmas holiday. Blocks "A" and "B" will alternate with mother having Block "A" in even- numbered years and Block "B" in odd-numbered years, and father having Block "A" in odd-numbered years and Block "B" in even-numbered years. 3. It is intended that both parties be supportive of the activities of the children and transport them to and from such activities in time that the children are able to fully participate in those events. Both parents shall cooperate in providing transportation for a child to his activity. The custodial parent shall not be required to take the children to an activity if the custodial parent and the children are participating in a scheduled vacation or other family event. This order shall become effective as the parties shall agree and if they cannot agree same shall be effective on the first school day following April 16, 2006. BY THE COURT, Kevin A. Hess, 1. Sandra Meilton, Esquire F or the Plaintiff Carol 1. Lindsay, Esquire F or the Defendant :rlm