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HomeMy WebLinkAbout2008-1919 DALE G. WICKARD, III, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, : PENNSYLVANIA : V. : : HEATHER WICKARD, : DEFENDANT : 08-1919 CIVIL TERM IN RE: CUSTODY OPINION Masland, J., May 23, 2012:-- I. BACKGROUND Dale G. Wickard, III, (Father) and Heather Wickard (Mother) are the natural parents of Logan Wickard, born May 10, 2005 and Jakob Wickard born January 3, 2007 (Children). Father initiated this custody action on March 26, 2008. Following at least three conciliation conferences the Honorable J. Wesley Oler, Jr., issued an order of court on July 14, 2010, which set forth the parties custodial responsibilities. Pursuant to that order the parties share legal custody with Mother having primary physical custody subject to Father’s partial custody. Father enjoys alternating weekends from Friday at 3:00 p.m. to Monday at 7:00 p.m., every Wednesday overnight from 3:00 p.m. to Thursday at 7:00 p.m. and every “off” Monday from 3:00 p.m. to 7:00 p.m. The current saga began on March 16, 2011 when Father filed a petition to modify custody. By order of court dated May 2, 2011, a hearing was scheduled for August 15, 2011 and the parties were directed to cooperate in obtaining a custody evaluation. Bruce Eyer, M.S. completed the evaluation and issued his report on August 5, 2011. 08-1919 CIVIL TERM A hearing was held before the Honorable J. Wesley Oler, Jr., on August 15, 2011, but was not completed, and a second hearing was scheduled for December 12, 2011. In the interim, on October 4, 2011, Mother filed a petition for special relief requesting the court to order both minor Children to attend counseling, for Jakob to have a speech evaluation and for a parenting coordinator to be appointed. At a conciliation conference on October 5, 2011, the parties agreed to the terms of an order of court that was dated October 31, 2011, which addressed Jakob’s speech evaluation and consolidated the remaining special relief issues for the December 12, 2011 hearing. Once again, the parties were unable to present their entire case to the court on December 12, 2011, and, with Judge Oler approaching retirement, the matter was transferred to the undersigned. Judge Oler issued an order on December 13, 2011, that maintained the prior orders of court, banned corporal punishment, required compliance with recommendations of Jakob’s forthcoming speech evaluation and permitted Logan to participate in extracurricular activities. Pursuant to the direction of Judge Oler, on January 19, 2012, the parties stipulated that the record of the August 15 and December 12, 2011 hearings before Judge Oler would be incorporated into the record of the hearing before this court. Finally, although Judge Oler did not address the issues of counseling for the Children and the request for a parenting coordinator following the December hearing, we advised the parties in our preliminary comments on April 4, 2012, that, contrary to Father’s contention, those issues remained open for -2- 08-1919 CIVIL TERM consideration. In considering the best interests of the Children, we will keep a full quiver of options, including counseling and parenting coordination. II. FINDINGS AND ANALYSIS Based on our review of the transcripts, the evidence presented on April 4, 2012, the recommendations of the custody evaluator and our review of the relevant custody factors, shared legal and physical custody is in the best interests of the Children. The accompanying order will provide for the same and also provide the parties with an opportunity to proceed with co-parenting counseling, and, perhaps, with a co-parenting coordinator. The following analysis will address the salient points that led to our decision. A. CUSTODY EVALUATOR The court’s first-hand experience with the parties on April 4, 2012, provided a much-needed third dimension to the transcripts, the evaluation and the filings. In short, our observations confirmed our initial reaction that “what we 1 have here is a failure to communicate.” Sadly, we have more than a mere failure to communicate properly, and Logan and Jakob are not actors who can move onto the next performance regardless of their fate on the screen. What we have is a communication gap that threatens to cripple these boys far more than a few warts on the feet. Thus, it was not surprising that when Mr. Eyer was queried with one of many hypotheticals, he redirected counsel and the parties to the real issue: I think the greater factor for their future wellbeing and development would be for their parents to communicate better on issues, even as big as this one, but certainly there 1 Cool Hand Luke, Warner Bros. (1967). -3- 08-1919 CIVIL TERM will be many other issues down the road for them to discuss and hopefully reach an agreement on. When the boys sense their parents communicating and reaching an agreement and being in agreement, as they probably haven’t over this past year or better part of a year, I think that goes a long way to settling them emotionally and giving them an emotional climate that is more peaceful and less strained. Still right now they probably sense that their parents are at odds in a pretty big way, and they probably don’t sense that their parents are communicating with each other or are on pretty even terms with each other and pretty comfortable in each other’s close proximity. For example, in exchanges of the boys’ care. This is an even more important fundamental factor then where they go to school next year, and I just wish the parents could find a way to compromise with each other, listen to each other, and make decisions, without, you know, the court having to do so for them, but that is not always 2 possible. The court could not agree more with the assessment of Mr. Eyer. Although, technically, the parties could each point to sections of his testimony and/or evaluation to show why each is the best parent, ultimately, those arguments amount to merely rearranging the deck chairs on the Titanic. Practically, this ship will sink if the parties do not learn to communicate. This leads to the issue of a parenting coordinator. Mr. Eyer stated the case succinctly at the close of his evaluation: It is strongly recommended that both parents identify a professional counselor who both feels comfortable meeting with and who is skilled and experienced in providing co- parenting counseling. It is recommended that both parents engage in co-parenting counseling for the purposes of (1) developing better communication and parenting their sons, and (2) strengthen their good faith cooperation and willingness/ability to reach compromises and agreements 2 Transcript of proceedings August 15, 2011, p. 36, 37. -4- 08-1919 CIVIL TERM with each other in the future, as their sons’ needs change 3 and develop with time. Just as we concurred in Mr. Eyer’s assessment of the problem, we concur with his assessment of the solution – co-parenting counseling. Perhaps, because Mother requested such counseling, Father remained steadfastly opposed to it? In any case, there was an obvious disconnect in Father’s case. How he and his witnesses could recount the repeated difficulties in communication and yet decline the offer of a possible solution boggles the mind. Perhaps, Father is aware of an insurmountable obstacle to co-parenting? Perhaps, we are wrong in concurring with the recommendation of Mr. Eyer? Regardless, we urge Father to consider the possibility that this counseling actually provides the best hope for the future. Against this backdrop from Mr. Eyer, the court heard extensive “updates” from the parties on matters previously testified to ranging from hygiene, health issues and clothing all the way to “heaven and the devil.” In a few short hours the court heard about this case “warts and all,” literally and figuratively. As noted in court following the hearing, we are less concerned about temporary dirtiness than we are about children considering the eternal resting place of one of their parents. Generally, questions of damnation do not come from children of such tender years unless there have been “suggestions” from the adults in their lives. Kids catch a lot of things from what adults say and do, and someone is making some unflattering statements regarding Mother. 3 Pl.’s Ex. No. 1, custody evaluation report of Bruce Eyer, M.S. -5- 08-1919 CIVIL TERM Ultimately, we found Mr. Eyer’s report to be helpful and persuasive. Father contended that “Mr. Eyer only saw the tip of the iceberg.” Certainly, the same can be said of our analysis. Nevertheless, we are satisfied that when holding Mr. Eyer’s report and the testimony up against the light of the custody factors, the best interests of the boys can and should be met by shared legal and physical custody. B. REVIEW OF CUSTODY FACTORS - 23 Pa.C.S. Section 5328(a) Although the court reviewed all sixteen factors, we summarize only those that were of critical importance to our analysis. Which party is more likely to encourage and permit frequent and (5328(a)(1)) continuing contact between the child and another party Neither party is particularly encouraging of contact by the other parent. However, the sense we get from the focus, tone and weight of Father’s case is that despite his claim that he encourages a positive bond with Mother, there is an underlying current that not only discourages such contact but suggests to the boys that their Mother is unfit. No doubt, when Jakob was asked to hold up his dirty right foot for a picture, the suggestion that Mother was bad for allowing him to go to nursery school in flip flops (after having warts removed) was as clear as 4 the expression on his face. Mother’s explanation that Jakob’s feet were swollen as a result of the procedure to remove the warts was more than satisfactory to the court. Unfortunately, this explanation was either not transmitted to or 4 Pl.’s Ex. No. 2. -6- 08-1919 CIVIL TERM received by Father. Had that two minute discussion taken place, the parties would have been spared an extra hour in court. All of this is not to say that Father, or his family, explicitly conveys negative feelings to the boys, but it is unlikely that they do a very good job of concealing them either. Nevertheless, we believe that both parties are capable of permitting frequent and continuing contact at least pursuant to a court order, if not on their own. The present and past abuse committed by either party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and (Section 5328(a)(2)) supervision of the child. Although the court received testimony regarding Father’s alleged use of a belt and duct tape as punishment, the concerns did not rise to a level that the court sensed a true risk of harm to the children. We do not condone or encourage corporal punishment, but note that, like Father’s concerns over warts and jogging pants, we have not been presented with any credible risk to the Children. The parental duties performed by each party on behalf of the (Section 5328(a)(3)) child We are comfortable that both parties are capable of adequately performing their parental responsibilities and have indeed done so in the past. The need for stability and continuity in the child’s education, family (5328(a)(4)) life and community life Both parties have provided a good foundation for the Children. Limiting Mother’s involvement, as proposed by Father, would be counter-productive to -7- 08-1919 CIVIL TERM their need for stability and continuity. Likewise, it would be unwise to limit Father’s involvement. Instead, we hope to maximize the involvement of both. (Section 5328(a)(5)) The availability of extended family Logan and Jakob are fortunate to have caring family members on both sides of this battle. Hopefully, those individuals will realize that they too have an obligation to help the boys with their struggle to find love, joy and peace amidst the conflict. Perhaps, someone will step up and become a peacemaker? (5328(a)(6)) The child’s sibling relationships Viewing both the posed and candid photographs presented by Mother, it is evident that the boys enjoy their time with their extended family, including Mother’s daughter, Kenadee, born June 28, 2009. The focus on Kenadee related primarily to the relationship between Mother and her father, Mr. Kramer, whose testimony we found to be of little assistance. Even so, it was not disputed that she and her brothers have a good relationship. Given the age and gender differences, this sibling relationship is not an overwhelming factor, but it does tilt in Mother’s direction. The attempts of the parent to turn the child against the other parent except in the cases of domestic violence where reasonable safety (5328(a)(8)) measures are necessary to protect the child from harm As noted in our discussion of factor (a)(1), we are concerned about Father not only discouraging contact with Mother but also creating an atmosphere that encourages negative statements about Mother by the boys. The rhetorical -8- 08-1919 CIVIL TERM question was posed at the hearing -- do children say bad things about one parent just to say it? Sadly, the answer is an emphatic “yes.” Children say bad things about the other party when they know the parent to whom they are speaking either wants to or expects to hear that. Fundamentally, children want to please the parent they are with, and if they believe it is acceptable to say negative things about the other parent, they will do that readily. Although our focus is on Father and his family, this cautionary rebuke applies to both parents: you must create a “no-conflict zone” around the boys and speak about the other parent with respect whether you believe that is reciprocated or not! Which party is more likely to maintain a loving, stable and nurturing relationship with the child adequate for the child’s emotional needs (5328(a)(9)) Over the course of their lifetime, Mother has been the primary source of nurture for the boys. Nevertheless, it is clear that Father and his family are not only fit but have in fact become quite nurturing. This was adequately displayed not only through the testimony but also through the evaluation by Mr. Eyer. The parties should consider this mutual strength as a building block and refrain from attempts to tear down the building. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of (5328(a)(10)) the child. Because, both parties are able to attend to the needs of the boys and have been doing so throughout their lifetime, this factor does not weigh in either’s -9- 08-1919 CIVIL TERM favor. Just as we do not condone corporal punishment, we do not support giving young children the option to brush their teeth at night, as it appears Mother has done. Luckily, their check-ups have been good so far – regular hygienic practices will ensure that continues. As for Father’s concern with Jakob wearing jogging pants and super hero pajamas, ten years from now, the parties will pine for concerns of this magnitude. The proximity of the residences of the parties. (5328(a)(11)) Fortunately, Mother’s brief move to Lemoyne was followed by a wise decision to return to South Middleton. Because she moved back into close proximity with Father, we viewed Mr. Eyer’s evaluation in that context as opposed to circumstance where the parties live 15 to 20 miles apart. With the parties in close proximity and in the same school district, a shared physical custody arrangement should be relatively easy to implement. Each party’s availability to care for the child or ability to make (5328(a)(12)) appropriate child-care arrangements Similarly, Mother’s move back to South Middleton alleviated the need to transport the boys long distances, and enabled her to garner employment that is significantly closer to her residence than it was at the outset of this case. With Kenadee of age to attend the same childcare provider as the boys, arrangements should run smoothly for all. We conclude that the parties can adjust their schedules to accommodate the needs of their children, but they will need to stay nimble in this regard for many years to come. -10- 08-1919 CIVIL TERM The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect the child from abuse by another party is not evidence of unwillingness or inability to cooperate with (5328(a)(13)) that party We have alluded too much to the conflict between the parties and will not dwell on it anymore. It is our fervent desire that someday soon we may be able to refer to this conflict solely in the past tense. III. CONCLUSION Based on the foregoing factors, the court deems it in the best interest of the Children that the parties share legal and physical custody. Furthermore, we strongly believe that the parties must engage in co-parenting counseling immediately. Although we are tempted to make the giant step to a co-parenting coordinator, we refrain from doing so in our accompanying order. Instead, just as we have provided a brief space in time from the barbs of the hearing, we will provide the parties with some space to reach an agreement. If they fail or balk, the court will not hesitate to institute appropriate guidelines through a co- parenting counselor or a co-parenting coordinator. By the Court, Albert H. Masland, J. Lorin Andrew Snyder, Esquire For Plaintiff Susan Kay Candiello, Esquire For Defendant :saa -11-