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HomeMy WebLinkAbout2011-3280 DIANE SMELTZER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : HEATHER LONG, BRADLEY : LIGHTNER AND KEITH LONG, : DEFENDANTS : 11-3280 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Masland, J., February 3, 2012:-- I. PREAMBLE Rarely, is a court asked to make an initial custody determination when a child is 17 years old. Usually, there have been countless court orders and battle scars long before the final countdown to emancipation. To be sure, there was an action in western Pennsylvania filed in the late 1990s; however, it has lain dormant to dead for many years and is of no consequence in our decision. During that time, there has been a cold-war standoff with little face-to-face contact or hand-to-hand combat, but there are many scars nonetheless. What follows is an abbreviated account of the legal storms that a young lady has been forced to weather - storms created by the adults in her life. Given her maturity, this is written for Alyssa’s eyes as much as for her benefit. II. BACKGROUND The current action was initiated by the maternal grandmother, Diane Smeltzer (hereafter Grandmother), on March 25, 2011. She alleged in her complaint that her daughter, Heather Long (hereafter Mother) had “wrongfully refused to permit the maternal grandmother to see the children or communicate 11-3280 CIVIL TERM rd with them since August 23 of 2010.” The children are Alyssa Lightner (DOB January 23, 1995) and Sierrah Long (DOB August 30, 2000). In addition to Mother, Grandmother also named as defendants Alyssa’s natural father, Bradley Lightner (hereafter Father), and Sierrah’s natural father, Keith Long (hereafter Long). After the first conciliation conference on May 3, 2011, Grandmother filed a Petition for a Guardian Ad Litem (GAL) for the two girls, in which she alleged that “Mother was not willing to permit Maternal Grandmother to have any contact with the minor children.” She also asserted that Father “expressed a desire to see his daughter and for Petitioner Grandmother to see his daughter.” Over the protestations of Mother, on July 13, 2011, the court appointed Sean M. Shultz, Esquire to serve as GAL for Alyssa and Sierrah, with the services to be paid by Grandmother. We further directed the rescheduling of the August 1, 2011 hearing to enable the GAL to meet with the girls before a second conciliation conference. The second conciliation conference was held on August 30, 2011. The court signed the order recommended by the conciliator on September 3, 2012, which, among other things, granted Mother and Father shared legal custody of Alyssa. Father was granted partial custody with Alyssa on four separate dates leading up to a third conciliation conference. After a conference on October 19, 2011, the court, on November 2, 2011, modified the recommended order by adding a pretrial conference on January 6, 2012. The primary purpose of this conference was to afford the court an opportunity to meet with the children prior to the hearing scheduled for January -2- 11-3280 CIVIL TERM 20, 2012. Additionally, this order afforded Father periods of partial custody on alternating weekends beginning October 22, 2011, with the location to be alternated between Father’s residence in western Pennsylvania and central Pennsylvania. Father filed a Petition for Contempt on November 21, 2011, in which he alleged that Mother had thwarted his efforts to see Alyssa in violation of the November 2, 2011 order. On January 3, 2012, the conciliator held the fourth conference that was scheduled as a result of the contempt petition. This conference served to focus the issues solely on Alyssa, in large part because Grandmother could no longer afford to pursue her interests, leaving Father as the 1 only one seeking to enforce any rights. On January 6, 2012, the court met with Alyssa in chambers, along with the GAL and counsel for Mother and Father. After listening to Alyssa’s position and affording counsel the opportunity to question her, the court encouraged Alyssa to thth see her Father on January 7 and 8 as directed in the order of January 4, 2012 (issued following the last conference). Following the conference with Alyssa, Father filed a Counter Complaint for Primary Physical Custody. By order of January 13, 2012, we directed that Father’s Complaint be considered with the other pending matters at the hearing scheduled for January 20, 2012. Prior to that hearing, the court, the GAL and counsel met again with Alyssa. 1 Grandmother’s counsel filed a Petition for Leave to Withdraw on December 1, 2011, alleging Grandmother’s inability to pay counsel’s fees. Further, at the hearing on January 20, 2012, Mother testified that Mr. Long had moved in with her, Alyssa and Sierrah, thereby removing any need to address Sierrah’s best interests. Just as we are spared from making that determination, we encourage Mother, Grandmother and Mr. Long to cooperate and spare Sierrah from further anguish in the years ahead. -3- 11-3280 CIVIL TERM III. FINDINGS We limit our findings to those matters that address the issues directly. The parties and Alyssa have endured sufficient punishment and inflicting further pain by elaborating on the facts runs contrary to our motives. Unfortunately, our findings and conclusions will still cut deeper than desired. That is sadly unavoidable in a case of this nature. With respect to Father’s Counter-Complaint for Custody, although neither he nor his counsel argued for a change in primary physical custody, we will address some of the broader factors for the purpose of providing context. A. Custody Factors 1. Alyssa’s desire to exercise more control over her visits with both Father and Grandmother was a well-reasoned and maturely-stated preference, based in part on the following: a) her belief that at age 17 she is capable of making these decisions; b) her circle of friends and activities as an active, outgoing junior in high school; c) her belief that after years of little or no contact from Father she should not be forced to spend time with him in western Pennsylvania. 2. Alyssa’s preference was confirmed and validated by her therapist, Harold Posey. 3. Mr. Posey noted that Alyssa is old enough and bright enough and therefore needs to feel she has a voice in this matter. 4. Mr. Posey explained that it was not unnatural for Alyssa to feel fearful or anxious about visits with Father. -4- 11-3280 CIVIL TERM 5. Although Mr. Posey did not state that Mother overtly pressured Alyssa to not visit with Father, he noted that Alyssa might not feel “safe” visiting Father because it may imply disloyalty to Mother. 6. Mr. Posey felt that forcing Alyssa to see Father against her will would continue to create anxiety for her. 7. Aside from the earliest years of Alyssa’s life when Father shared by responsibilities, Mother has performed all of the parental duties on behalf of Alyssa. 8. Mother has attended to Alyssa’s daily physical, emotional, developmental and educational needs and provided a loving, stable, consistent and nurturing relationship. 9. Neither party is likely to encourage or permit any significant contact with the other. 10. Although we do not discount Father’s claims that economic circumstances prevented him from doing more, Father failed to follow through with custody proceedings in Westmoreland County in the late 1990s. 11. Father did not see Alyssa from approximately 2000 until 2008, at which time Alyssa was accused of an act that later proved to be unfounded. 12. Had Grandmother not filed her complaint for custody in 2011, it is unlikely that Father would have taken steps to do so. 13. Father’s efforts throughout this process to reestablish a relationship with Alyssa appear to be based on a sincere desire to make up for past failures. -5- 11-3280 CIVIL TERM 14. Mother claims to have taken a neutral stance with respect to contact between Father and Alyssa; however, she harbors a high degree of antagonism towards Father, which is undoubtedly apparent to Alyssa. B. Contempt 1. Although we cannot determine if Mother actively thwarted Father’s attempts to see Alyssa beginning in the year 2000, she willfully failed to comply with the order of court of November 2, 2011. 2. Mother failed to ensure that Alyssa would be available for the alternating weekends that were to begin on October 22, 2011. 3. In light of the court order, it was inappropriate for Mother to, at best, take a neutral stance and leave things up to Alyssa or, at worst, clearly convey her desire that Alyssa not see Father. 4. Mother acted willfully in failing to communicate with Father regarding the ordered visits. C. Payment of Guardian ad Litem 1. The court relied on Grandmother’s assertion that she was “willing to contribute towards the costs of the Guardian Ad Litem.” 2. The services of the GAL were helpful to the court through his support of Alyssa and the clarification of the issues. 3. Mother is represented by pro-bono counsel leading the court to question her ability to assist in the compensation of the GAL. -6- 11-3280 CIVIL TERM IV. DISCUSSION The path of least resistance for the court would have been, with respect to both the custody and contempt issues, to tell everyone to go home because a mature 17-year-old has stated her position in a compelling fashion. While accurate, doing so would be a disservice not merely to the parties but more so to Alyssa. Therefore, in spite of Father’s failures over the years, which no doubt caused Alyssa great pain and anguish, we feel compelled to give him one more opportunity to restore his relationship with Alyssa. Let there be no mistake, we do this for Alyssa, not for Father. In Alyssa, we see a beautiful young woman on the verge of adulthood, who has been forced to make an extremely difficult decision. Does she risk harming the relationship with Mother, her primary source of physical and emotional support for 17 years, by attempting to resurrect a relationship with her biological Father, a man who Mother clearly dislikes? Alyssa’s therapist, Harold Posey, deemed this question to be a major source of anxiety in Alyssa’s life. Sadly, neither parent appreciates his or her own involvement in creating this intensely difficult situation for their daughter. Instead, Father ignores Alyssa’s pleas and plunges ahead with a last-ditch effort, while Mother makes it patently clear that if Alyssa enjoys her visits with Father, she does so without Mother’s blessing. The fallacy is that both parents see this as a “zero-sum” game, in which any joy Alyssa experiences with Father subtracts from her joy with Mother and vice versa. This need not be the case. In fact, the reality is that -7- 11-3280 CIVIL TERM the animosity between Mother and Father (and also between Mother and Grandmother) saps any joy from Alyssa’s life. Under the best scenario, Alyssa would invite her Father back into her life, with her Mother’s blessing. It is clear to the court that that will not occur without reunification counseling. Perhaps, it is too later for such counseling to work. Nevertheless, we will take an optimistic approach (some would call it Pollyannaish) and direct Father, at his own expense, to proceed with that effort. We will direct Mother and Alyssa to cooperate with the counseling. However, no matter how much directing we may do, we are unable to mandate reconciliation or forgiveness. What haunts us is the image of a young woman ravaged by emotions that all of the parties could have prevented. There may be legitimate grounds for everyone’s anger. But hatred and the lack of forgiveness come with a great price. As Anne Lamott described in Traveling Mercies, “not forgiving is like drinking rat poison and waiting for the rat to die” Mother, Father and Grandmother have been waiting for the rat to die – I urge them to spare Alyssa that cup. To do so, they must remove the poison from their own lives. ORDER OF COURT AND NOW, this day of February, 2012, following a hearing on January 20, 2011, and upon consideration of the desires of the minor child, Alyssa Lightner, we find that it is in her best interest to enter the following order: 1. Mother shall have primary physical custody and sole legal custody of Alyssa. -8- 11-3280 CIVIL TERM 2. Father may enjoy rights of partial custody pursuant to the following guidelines: a. Within fifteen (15) days of the date of this order Father shall arrange for reunification counseling services through Alternative Behavioral Consultants (ABC), 224 South Hanover Street, Carlisle, PA 17013, telephone number 1-866-470-8477. Father shall be responsible for all costs associated with reunification counseling and shall enter into an appropriate payment plan with ABC. b. Father, Mother and Alyssa shall cooperate with the reunification services and attend all sessions until such time as ABC determines that the services are no longer necessary or productive. c. If the reunification services are successful, a schedule of visitation that is compatible with Alyssa’s plans and activities shall be established. d. If the reunification services are not successful either party may petition the court for relief, which will be addressed without further hearing unless good cause is shown. We find that Mother is in contempt of the order of court of November 2, 2011, and direct that she pay the sum of $150 on account of counsel fees and costs to Tabetha Tanner, Esquire, within thirty (30) days of the date of this order. No further relief is granted regarding the contempt. -9- 11-3280 CIVIL TERM Finally, with respect to the payment of the fees of the Guardian Ad Litem, the court apportions the bill as follows: 1. Diane Smeltzer shall pay Sean M. Shultz, Esquire, 26 West High Street, Carlisle, PA 17013, the sum of $1,000 within thirty (30) days of this order or enter into a payment plan acceptable to Mr. Shultz. 2. Bradley Lightner shall pay Sean M. Shultz, Esquire, 26 West High Street, Carlisle, PA 17013, the sum of $500 within thirty (30) days of this order or enter into a payment plan acceptable to Mr. Shultz. 3. Cumberland County shall pay the sum of $1,000 to Sean M. Shultz, Esquire. By the Court, Albert H. Masland, J. Drew Deyo, Esquire For Heather Long Tabetha Tanner, Esquire For Bradley Lightner Sean Shultz, Esquire Guardian Ad Litem -10- 11-3280 CIVIL TERM Diane Smeltzer 2701 River Road Vandergrift, PA 15690 Alternative Behavioral Consultants 224 South Hanover Street Carlisle, PA 17013 Court Administrator :saa -11-