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HomeMy WebLinkAbout2004-3843 Civil STEVEN H. GREENE, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NISSA GREENE, DEFENDANT 04-3843 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., May 9, 2006:-- Steven H. Greene, age 37, and Nissa M. Greene, age 35, were married on December 27, 1997. They are the parents of Abigail Greene, age 7, born May 21, 1998, and Connor Greene, age 6, born October 7, 1999. In November, 2001, the parents, with Abigail and Connor, moved from an apartment into the home of the maternal grandfather in New Cumberland. The move was prompted because the father was laid-off from his employment and the mother was pursuing an education. In June 2004, while still living in the grandfather's home, the mother told the father, whom she viewed as controlling and abusive, that she "had enough," and that their marriage was over. The parents continued to live in separate sections of the home. On August 6, 2004, the father, without prior notice to the mother, separated and took the children with him to the home of the paternal grandmother in Newville. The day before he left, he filed a complaint for custody of Abigail and Connor. The father would not let the mother see the children except for one hour at a park where he had a police officer present. The mother filed a petition for emergency 04-3843 CIVIL TERM relief.1 On August 27, 2004, an interim order was entered providing that the children stay in the home of their father and be with their mother every weekend from Friday evening at 6:00 p.m., through Sunday at 6:00 p.m., or Monday at 6:00 p.m. if Monday is a holiday. Further interim orders were entered on October 2, 2004, setting a holiday schedule, and on June 14, 2005, setting a schedule for the summer of 2005 in which, with a couple of exceptions, the children alternated week to week in the homes of their parents. Another interim order was entered on November 22, 2005, setting a holiday schedule for Thanksgiving and Christmas for 2005. A custody evaluation was completed, and hearings on the merits were conducted on March 1 and April 12, 2006. The father continues to live in the home of his mother on a sixty-four acre family farm in Newville. His brother and his wife live with their two children, a girl age 6, and a boy age 1, in another home on the property. The father works an 11 :00 p.m. to 7:00 a.m. shift five days a week, which includes Saturday and Sunday nights, as a life skills worker for the South Mountain Cornell Abraxas Youth Detention Center. Abigail and Connor attend the Newville Elementary School in the Big Spring School District, where she is in second grade and he is in afternoon kindergarten. On weeknights during the school year when he is working, the father gets home in time to cook breakfast. The children then take a bus to school. He sleeps, and then picks the children up from 1 The father testified that the mother asked him to take the children and leave, and that she wanted a divorce. The mother acknowledged that she asked the father to leave, and told him she wanted a divorce. She denied that she asked him to take the children. Her immediate petition for emergency relief after he took the children gives credibility to -2- 04-3843 CIVIL TERM school and takes them to ballet lessons which they attend Monday through Thursday. He sleeps some more in the evening before he starts his nightshift at 11 :00 p.m. The mother met Chris Umberger, age 31, in the latter part of 2003, when she was working at Lowe's. Umberger has worked for Lowe's for almost thirteen years. She moved into his home in New Kingstown in March, 2005.2 They live with his two children, Dustin, age 12, and Alexandria, age 11. Since moving to New Kingstown, the mother has been a full-time homemaker. She has held several jobs, but does not intend to go back to work anytime soon. Her relationship with Umberger appears to be strong. The four children get along. New Kingstown is in the Cumberland Valley School District, where Dustin and Alexandria, who are both good students, attend. There is an elementary school approximately one mile from the home. The maternal grandparents see Abigail and Connor on many occasions when they are with the mother. Abigail and Connor are doing well in school. Both parents are involved with them at school, the father so much that Connor's kindergarten teacher said that he was "overly" involved, although he has improved. The teacher testified that the father has said disparaging things about the mother, especially in the beginning of the school year. The children, who started taking ballet classes when they lived with both the parents, now take ballet every afternoon after school except Fridays when they go with her testimony. 2 New Kingstown is about a 30 minute drive from Newville. -3- 04-3843 CIVIL TERM their mother. During the periods last summer when the father had them, they went to ballet lessons and swimming lessons each day. While the parents were living together, there were times when they both worked and other times when one or both were pursuing an education. In the earlier years, the mother was the primary caretaker. In the latter years, based on their various work and education schedules, they participated about equally in the care of the children. The father is actively involved in all aspects of the children's lives. He seeks shared legal custody of Abigail and Connor, and primary physical custody with the mother having them every other weekend. While he acknowledges that the mother is very close to the children, he maintains that he can better attend to their needs, and can better provide them stability. The mother seeks legal and physical custody based on the recommendation of Arnold Shienvold, Ph.D. Dr. Shienvold specializes in child clinical psychology and custody evaluations. He conducted an independent custody evaluation in this case. Dr. Shienvold testified that Abigail and Connor are close to and have bonded with both parents. They are strongly attached to the paternal grandmother. As a result of MMPI's and his clinical evaluations, he found that the mother and Chris Umberger are within a normal range, but the father exhibits elements of paranoia. He is suspicious, and has a hostile, angry component reflected by rigid thinking that projects blame upon others and deflects blame from himself. He lacks insight on how his anger towards the mother affects the children. He has been unwilling to have any -4- 04-3843 CIVIL TERM conversations with the mother involving decision making regarding the children.3 The father has acted unilaterally in many aspects of the children's lives.4 He tells the children that he loves them more than the mother, and that their mother cares more about Chris Umberger than them.5 He tells them that "the truth will make them free."6 He has planted seeds of alienation between the children and their mother. He is in need of extensive therapy in this regard. Dr. Shienvold found that the mother sees positive aspects in the father and in his family's involvement with Abigail and Connor. She recognizes her own weaknesses. Her involvement with Abigail and Connor is positive, and nothing, including what the children say about her, supports the father's many allegations against her. Dr. Shienvold has serious concerns that if a change in primary physical custody is not made, there is substantial potential for the father's conduct to damage the children's relationship with the mother as they grow older, especially around the ages of 8 and 10. He is of the opinion that primary physical custody and sole legal custody of Abigail and Connor should be awarded to their mother. He believes that she is the 3 The mother testified that the father will not talk to her about any matters concerning the children. Her phone calls with the children are "awful" because they are monitored, and the children are forced to stop talking after short periods. 4 For example, he spitefully did not place the mother's name as an emergency contact person on school information forms. 5 This was reported to Dr. Shienvold by the children, but denied by the father. 6 He acknowledges saying this to the children. -5- 04-3843 CIVIL TERM more sensitive and nurturing parent, that she is completely capable of caring for the children, and clearly more capable of encouraging the children's relationship with the other parent. Jeffrey L. Lensbower, a psychologist, reviewed Dr. Shienvold's report for the father. He did not meet the children, the parents, or conduct a custody evaluation. Based on Dr. Shienvold's report, Lensbower was of the opinion that both parents would benefit from co-parent counseling, and that the father should be ordered to receive anger management therapy. Kenneth G. Small, Ph.D., a psychologist, talked with the father and reviewed Dr. Shienvold's report for him. He did not meet with the mother or the children. He primarily deals with the treatment of children and families in split family situations. He does not conduct custody evaluations. Dr. Small was of the opinion that the father does not need anger management counseling at this time. The father told him that the mother was a good mother, and that there are no problems with her parenting skills. Dr. Small was of the opinion that the recommendation for custody by Dr. Shienvold was not supported by his data or clinical evaluation. He stated that the data indicates that the father interprets things with some suspiciousness, but does not exhibit traditional paranoia. He believes that at some point the father's suspiciousness will alleviate. A determination of a child's best interest is on case-by-case basis, and is to be premised upon consideration of all facts that legitimately affect the child's physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381 -6- 04-3843 CIVIL TERM (1995). We are to consider the testimony of expert witnesses, but are not under an obligation to accept their conclusions. See Murphey v. Hatala, 350 Pa. Super. 433 (1986). In the case sub judice, the mother and father are capable, loving parents. Each has the ability and desire to provide the care necessary to meet the needs of Abigail and Connor. The father is bitter about the breakup of his marriage, and seemingly does not understand his deficiencies which contributed to that breakup. We agree with Dr. Shienvold that his conduct and unwillingness to cooperate with the mother creates a risk to the children. Notwithstanding, at this time there has been no significant harm. Ideally, these capable parents should share physical custody of their young children to the extent reasonably possible, considering that they live in different school districts. We will frame such an order, and further direct that the parents attend co-parenting counseling. If the father does not cooperate with the mother to make this custodial arrangement work in the best interests of the children, andlor continues conduct that results in any alienation of their children with their mother, we will on petition and proof thereof, consider changing the order to provide the mother primary physical custody and sole legal custody. AND NOW, this ORDER OF COURT day of May, 2006, IT IS ORDERED: (1) All prior custody orders are vacated and replaced with this order. (2) Steven H. Greene and Nissa Greene shall have shared legal custody of Abigail Greene, born May 21, 1998 and Connor Greene, born October 7, 1999. -7- 04-3843 CIVIL TERM (3) During the school year, the children shall stay in the home of their father and be with their mother on the following continuing weekend scheduled: On the first weekend from Friday at 6:00 p.m. through Monday at the beginning of school, or Tuesday at the beginning of school if Monday is a school holiday. On the second weekend, from 6:00 p.m., Saturday through Monday at the beginning of school, or Tuesday at the beginning of school if Monday is a school holiday. On all weekends, if allowed by the school, the mother shall deliver the children directly to school, otherwise, she shall deliver them to the father's home in time for them to take a school bus. (4) Thanksgiving day shall alternate. In 2006, the mother shall have the Thanksgiving day, and in 2007 the father shall have Thanksgiving day. In any year in which the mother has the children on Thanksgiving day, her time with them shall start at 9:00 a.m. and extend to the beginning of school after the Thanksgiving break. (5) The Christmas period shall have two segments: Segment A: December 24 at 9:00 a.m. to December 28 at 9:00 a.m.; Segment B: December 28 at 9:00 a.m. to 6:00 p.m. on the day before school resumes. The mother and father shall alternate these segments. In 2006, the father shall have Segment A and the mother shall have Segment B. In 2007, the mother shall have Segment A and the father shall have Segment B. (6) During each summer school vacation period, starting on the first Saturday at 6:00 p.m. after school ends until the last Friday at 6:00 p.m. before school begins, the -8- 04-3843 CIVIL TERM mother shall initially have the children for a continuous three week period, with the father having the next week. This three week - one week cycle shall continue for the remainder of the summer school vacation period. All transfers shall be on Fridays at 6:00 p.m. (7) The parent relinquishing the children shall always deliver them. (8) The parents, without their children, shall obtain co-parenting counseling with InterWorks, 4335A North Front Street, Harrisburg, Pennsylvania 17110 (236-6630). At a minimum, they shall each attend one session individually, and thereafter four sessions together. To the extent that any costs are not paid by their medical insurance providers, they shall divide the costs equally. They shall forthwith cooperate together in securing this counseling. By the Court, Edgar B. Bayley, J. Samuel L. Andes, Esquire For Plaintiff Jeanne Costopoulos, Esquire F or Defendant :sal -9-