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HomeMy WebLinkAbout2005-4004 JASON D. GORDON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 05-4004 CIVIL JENNIFER J. GORDON, : Defendant : IN CUSTODY IN RE: DEFENDANT’S MOTION TO MODIFY CUSTODY OPINION AND ORDER This is a case in which the defendant mother has filed a petition to modify custody. The most recent hearing in the matter was held in early October and we have, since then, given considerable thought to this perplexing case. Because it is important that we not delay, further, the announcement of a decision, we will today only briefly outline the reasons for our disposition. The current custody order in this case has been in effect since July of 2006. Five years ago, the mother, Jennifer Gordon, now Jennifer Stark, chose to move to the state of Texas. After hearing, custody of the two children, Dakota and Noah, was awarded to their father with the understanding that they would spend holidays and the summer with their mother in Texas. The mother is ideally situated to visit the children as her current husband is a long distance truck driver and she is able to travel to Carlisle at various times during the year. In the meantime, the father has acted as the primary caregiver for the children during the school year. The children are doing fairly well in school though there is general agreement that Dakota is something of an underachiever. Both boys are active in their church. Towards the end of the past school year, the father had some concerns with respect to Dakota’s performance at school and sought mother’s help. She took his plea for help as a sign that he was willing to give up custody of the children. At our recent hearings, mother indicated that she was waiting for the “right time” to petition for a change in custody and that, for some reason, now is the “right time.” The petition sub judice was filed around the time the children were spending a very pleasant summer vacation in Texas. Dakota spent the first few weeks traveling around in the cab of the truck being driven by his stepfather. Noah spent the time with his mother. It is clear that, during the summer, both children enjoyed themselves, developed a preference to live in Texas and, in fact, have formulated a view of “family” which does not include their father. During the summer, there was almost no contact with the father that was initiated by the children or their mother. We are satisfied that father is willing and able to continue to be the main caregiver for the children. The boys’ extended family lives in this general area and neither father nor mother have any family who live in Texas. We agree with the argument advanced by the father that should mother have primary physical custody of the children, the arrangement would effectively take father and the rest of the family out of the children’s lives. In the meantime, we see no particular benefit of moving the children to Texas. To the contrary, given the estrangement which we believe will develop, the move would be, in fact, detrimental. Father has good employment and has maintained a nice home for the children. He does not seek to diminish the contact between the mother and the boys. It is clear that both Dakota and Noah have developed a desire to move to Texas. While the express wishes of a child in a custody action are not controlling, they constitute an important factor that must be considered carefully by the trial judge when determining the child’s best interests. Graham v. Graham, 794 A.2d 912 (Pa.Super. 2002). The weight to be accorded a 2 child’s preference, of course, varies with the age, maturity and intelligence of the child together with the reasons given for the preference. Moreover, as children grow older, more weight will be given to the preference of the child. D.C.S. v. J.A.S., 994 A.2d 600 (Pa.Super. 2010). We discussed this case, at great length, with both boys in Chambers. We found both of the boys to be articulate and relatively mature. We had, however, the unmistakable impression that they intentionally colored their testimony to favor their mother and were not able to articulate a cogent or compelling reason as to why they desired to move. In short, we do not find the stated preferences of the children controlling. ORDER th AND NOW, this 16 day of December, 2011, the motion of the defendant to modify custody is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Mark A. Mateya, Esquire For the Plaintiff Michael Scherer, Esquire For the Defendant :rlm 3 JASON D. GORDON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 05-4004 CIVIL JENNIFER J. GORDON, : Defendant : IN CUSTODY IN RE: DEFENDANT’S MOTION TO MODIFY CUSTODY ORDER th AND NOW, this 16 day of December, 2011, the motion of the defendant to modify custody is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Mark A. Mateya, Esquire For the Plaintiff Michael Scherer, Esquire For the Defendant :rlm