Loading...
HomeMy WebLinkAbout93-1060 CivilMARY REBECCA OVER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JONATHON SCOTT OVER, Defendant NO. 1060 CIVIL 1993 IN RE: CUSTODY ADJUDICATION BEFORE OLER J. ORDER OF COURT AND NOW, this 3T4 day of September, 1993, upon consideration of Plaintiff's Complaint for Custody of the parties' children, Brittany Rebecca Over (born April 24, 1986) and Jared Scott Over (born April 25, 1992), and of Defendant's Counterclaim for Custody, and following a hearing, it is ORDERED and DIRECTED as follows: A. The parties shall have shared legal custody of the children. B. Mother shall have primary physical custody of the Children, and Father shall have partial or temporary physical custody, every other weekend from 5:30 p.m. on Friday until 5:30 P.M. on Sunday; every Wednesday from 5:30 p.m. until 7:30 p.m.; on alternating Pennsylvania state holidays except as provided hereafter, from 9:30 a.m. to 7:30 P.M.; on Father's Day from 9:30 a.m. to 5:30 p.m.; on Christmas and Thanksgiving from 2:00 p.m. to 7:30 p.m.; and for two separate two-week periods during the summer. Mother's custody shall include Mother's Day from 9:30 a.m. to 5:30 p.m. C. Neither party shall contact the other party directly except in the event of a medical emergency involving the Children, nor shall either party harass the other. All exchanges with respect to custody shall take place across the street from the Carlisle Business Airport on Petersburg Road in Cumberland County. D. Nothing herein is intended to preclude the parties from deviating from the custody arrangements herein by mutual consent. This Order is premised upon Mother's remaining in Cumberland County, Pennsylvania, as opposed to relocating to North Carolina. In the event that Mother does effect such a relocation, primary physical custody of the Children shall be in Father, with reasonable partial custody to be awarded Mother following an additional hearing. BY THE COURT, Z. J. esley Oler J, William C. Vohs, Esq. Counsel for Plaintiff Philip H. Spare, Esq. Counsel for Defendant :rc MARY REBECCA OVER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JONATHON SCOTT OVER, Defendant NO. 1060 CIVIL 1993 IN RE: CUSTODY ADJUDICATION BEFORE OLER J. OPINION AND ORDER OF COURT This case is a custody action in which Plaintiff Mary Rebecca Over (Mother) and Defendant Jonathon Scott Over (Father) have filed a complaint and counterclaim respectively for custody of their minor children, Brittany Rebecca Over and Jared Scott Over (Children). A hearing on the matter was held before the undersigned judge on July 28, 1993, and August 23, 1993. Based upon the evidence presented at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered: FINDINGS OF FACT 1. Plaintiff is Mary Rebecca (Becky) Over, 27, residing at 351 Heiser's Lane, Carlisle, Cumberland County, Pennsylvania; she is employed as a quality technician at Carlisle Syntec. 2. Defendant is Jonathon Scott (Scott) Over, 29, residing at 9 Wood Lane, Carlisle, Cumberland County, Pennsylvania; he is employed as a supervisor at the Pennsylvania Department of Transportation. 3. Plaintiff and Defendant were married on September 22, 1985, in Wilson, North Carolina; they separated in August of 1992. 4. Two children were born of the marriage: Brittany Rebecca Over (d.o.b. April No. 1060 Civil 1993 24, 1986) and Jared Scott Over (d.o.b. April 25, 1992). 5. Mother was raised in North Carolina and many of her blood relatives remain in that state. 6. The Court accepts the testimony concerning certain parental misconduct toward Mother when she was a child, which is contained in the record and need not be here publicized, and the evidence tending to show that certain family members in North Carolina may have a casual attitude toward children and firearms, a habit of abusing alcohol, unkemptness and volatile relationships. 7. Mother has a tendency to lose her temper in stressful circumstances and to act irrationally and upon impulse. her. 8. In August of 1992, Father told Mother that he was no longer in love with 9. In response to Father's statement, Mother obtained a loaded gun, aimed it at her head, and threatened to commit suicide. 10. Father was eventually able to convince Mother to surrender the gun, and he attempted to calm her by talking to her. 11. Mother thereafter obtained a bottle of pills and threatened to kill herself by taking a drug overdose. 12. Father eventually was able to get the pills away from Mother. 13. Mother thereafter called Father at work and announced that she was going 2 No. 1060 Civil 1993 to commit suicide. 14. Finally, Mother agreed to voluntarily enter a hospital for psychiatric treatment, after being threatened with involuntary commitment proceedings. 15. Mother was admitted to Carlisle Hospital on August 12, 1992, and discharged on August 25, 1992, having suffered from major depression. 16. She continues to receive psychological counseling, but is much improved. 17. Mother remains bitter and angry with respect to Father. 18. In confrontations with Father, Mother makes little attempt to avoid exposure of the Children to her hostility toward Father, and on occasion employs histrionics, such as pretending that Father has knocked her to the ground. 19. Mother has announced her intention to move with the Children to North Carolina; the Court believes that the primary motivation for this decision is to punish Father by withdrawal of the Children. 20. Although Mother claims to have obtained assurances of employment and housing in North Carolina, these assertions were not otherwise verged, and the Court does not accept either prospect as firm at this point; Mother is presently a highly valued employee at Carlisle Syntec, earning $24,400 per year, with medical benefits. 21. On May 7, 1993, a temporary custody order was entered upon agreement of the parties by the Honorable George E. Hoffer, providing inter alia as follows: A. The children shall be in the temporary custody of 3 No. 1060 Civil 1993 their father, the Defendant, Jonathon Scott Over, every other weekend from 5:30 p.m. on Friday until 5:30 p.m. the following Sunday, commencing on Friday, April 30, 19931 and every Wednesday from 5:30 p.m. until 7:30 p.m. In addition, the father shall have temporary custody of the children on Memorial Day in 1993 by extending his weekend from Friday at 5:30 p.m. through Monday at 5:30 P.M. In addition, the father shall have temporary custody of both children for the period from 25 June 1993 at 5:30 p.m. until the same time on 4 July 1993. B. At all other times, the children shall be in the temporary custody of the mother. In addition, the children shall be in the mother's temporary custody, exclusive of any periods of time with the father, from 5:30 p.m. on Friday, July 9, 1993, until 5:30 p.m. on Sunday, July 18, 1993, so that the mother can take the children with her to North Carolina to visit her family. 22. The temporary order agreed upon also provided as follows: With the exception of the two week-long periods of temporary custody set out above, neither of the parties will 4 No. 1060 Civil 1993 take the children outside of the Commonwealth of Pennsylvania without the prior consent of the other party or further authority from this Court. 23. On the weekend of June 4, 1993, Mother intentionally violated the order by taking the Children to North Carolina after failing to obtain Father's consent and after unsuccessfully seeking Court authorization for the trip. 24. Following a hearing on July 28, 1993, Mother was adjudicated in contempt and fined $300 for the violation. 25. Father used marijuana as recently as 1982 or 1983, once tried cocaine, and was treated for anxiety in 1990. 26. Mother has been the Children's primary caretaker, but Father has been actively involved in raising them. 27. Both parties love the Children, and both are fit parents. 28. The Children's paternal grandmother lives in Cumberland County and has had a close relationship with them; the Children have no established ties to North Carolina. DISCUSSION Statement of law. "[T]he guiding polestar in a custody matter is what is in the best interests of the child." Frank & Gale, Pennsylvania Family Practice Manual §9.02(B), at 328 (1990). One of the factors to be considered in a child custody case 5 No. 1060 Civil 1993 such as the present one is who has been the primary caretaker. Id., §9.02(B)(2), at 334. [W]here two natural parents are both fit, and the child is of tender years, the trial court must give positive consideration to the parent who has been the primary caretaker. Not to do so ignores the benefits likely to now to the child from maintaining day to day contact with the parent on whom the child has depended for satisfying his basic physical and psychological needs. Commonwealth ex rel. Jordan V. Jordan, 302 Pa. Super. 421, 425, 448 A.2d 1113, 1115 (1982). In addition, "[i]t is a well-settled policy of this Commonwealth that, where possible, siblings should be reared together." Beers v. Beers, 342 Pa. Super. 465, 472, 493 A.2d 116, 119 (1985). With respect to child custody, "relocation" cases present special difficulties for the courts. See Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). "[I]n every relocation dispute the following interests must be accommodated as nearly as possible: the custodial parent's desire to exercise autonomy over basic decisions that will directly affect his or her life and that of the children; a child's strong interest in maintaining and developing a meaningful relationship with the non-custodial parent; the interest of the non-custodial parent in sharing in the love and rearing of his or her children; and, finally, the state's interest in protecting the best interests of the children." Id. 0 No. 1060 Civil 1993 at 184, 583 A.2d at 439.1 The Pennsylvania Superior Court has stated the resultant rule in relocation cases as follows: [I]n order to justify a relocation of the children by the custodial parent, the custodial parent must demonstrate (1) that the move is likely to significantly improve the quality of life for the parent and the children; (2) that the move is not motivated simply by a desire to frustrate the visitation rights of the non-custodial parent or to impede the development of a healthy relationship between the child and the non-custodial parent; and (3) the feasibility of creating substitute visitation arrangements to ensure a continuing, meaningful relationship between the children and the non- custodial parent. Kaneski v. Kaneski, 413 Pa. Super. 173, 179, 604 A.2d 1075, 1078 (1992). In assessing a custodial parent's motivation for relocating, a court must be careful "not to equate a former spouse's desire to escape from unpleasant confrontations with the non-custodial parent or from the turmoil which may result from a failed marriage with a desire to defeat visitation rights."' In addition, the court should consider "the degree to which [it] can be confident that the custodial spouse will comply cooperatively with alternate visitation arrangements which the move may necessitate." Gruber v. Gruber, 400 Pa. Super. 174, 185, 583 A.2d 434, 439 1 "In terms of the best interests of the child the primary physical custody family must be viewed as the family central and most important to the child's best interests.... "When relocation is likely to result in a substantially enhanced quality of life for a custodial parent, often the child's best interests will be indirectly but genuinely served." Gruber v. Gruber, 400 Pa. Super. 174, 182-83, 583 A.2d 434, 438 (1990). z Gruber v. Gruber, 400 Pa. Super. 174, 185 n.9, 583 A.2d 434, 439 n.9 (1990). h No. 1060 Civil 1993 (1990). Application of law to facts. In this case, the Mother's history as primary caretaker of the Children, as well as the basic fitness of both parents and the advisability of keeping siblings together where possible, militate in favor of a continuation of Mother's status as custodial parent for both Children, with provision for liberal partial custody in favor of Father, as provided for in the existing temporary custody order. Mother has not met her burden of showing that a proposed relocation to North Carolina at this time would be likely to significantly improve the quality of life for her and the Children, that the move is not motivated by a desire to frustrate Father's visitation rights, or that substitute visitation arrangements are likely to be successful. The Mother's instability at times of stress, bitterness toward Father, and prior willingness to violate the custody order are considerations which can not be overlooked in this regard. For these reasons, the following Order of Court will be entered: ORDER OF COURT AND NOW, this 1�f�day of September, 1993, upon consideration of Plaintiffs Complaint for Custody of the parties' children, Brittany Rebecca Over (born April 24, 1986) and Jared Scott Over (born April 25, 1992), and of Defendant's Counterclaim for Custody, and following a hearing, it is ORDERED and DIRECTED as follows: A. The parties shall have shared legal custody of the No. 1060 Civil 1993 children. B. Mother shall have primary physical custody of the Children, and Father shall have partial or temporary physical custody, every other weekend from 5:30 p.m. on Friday until 5:30 p.m. on Sunday; every Wednesday from 5:30 p.m. until 7:30 p.m.; on alternating Pennsylvania state holidays except as provided hereafter, from 9:30 a.m. to 7:30 P.M.; on Father's Day from 9:30 a.m. to 5:30 p.m.; on Christmas and Thanksgiving from 2:00 p.m. to 7:30 p.m.; and for two separate two-week periods during the summer. Mother's custody shall include Mother's Day from 9:30 a.m. to 5:30 p.m. C. Neither party shall contact the other party directly except in the event of a medical emergency involving the Children, nor shall either party harass the other. All exchanges with respect to custody shall take place across the street from the Carlisle Business Airport on Petersburg Road in Cumberland County. D. Nothing herein is intended to preclude the parties from deviating from the custody arrangements herein by .01 No. 1060 Civil 1993 mutual consent. This Order is premised upon Mother's remaining in Cumberland County, Pennsylvania, as opposed to relocating to North Carolina. In the event that Mother does effect such a relocation, primary physical custody of the Children shall be in Father, with reasonable partial custody to be awarded Mother following an additional hearing. William C. Vohs, Esq. Counsel for Plaintiff Philip H. Spare, Esq. Counsel for Defendant :rc BY THE COURT, J. esley Oler, Jr. 10