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HomeMy WebLinkAbout2001-5648 Civil DERRIK G. AVEY, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. ACAMIE L. WILT, Defendant. 01-5648 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 EBERT, J., July 7,2006 -- In this child custody case, Defendant has filed an appeal to the Pennsylvania Superior Court following an order awarding primary physical custody of the child to the Plaintiff. The Defendant appeals for the following stated reasons: 1. The lower Court erred in transferring primary physical custody of the child from the Defendant/Appellant to Plaintiff/Appellee herein when it failed to consider the best interest of the child. 2. The lower Court erred in transferring primary physical custody [from] Defendant/Appellant to Plaintiff/Appellee herein in contravention of the child's preference. 3. The lower Court erred in transferring primary physical custody [from] Defendant/Appellant to Plaintiff/Appellee herein in contravention of the child's physical, intellectual and emotional well-being, the factors enumerated in 23 Pa. C.S.A. 5303(a)(1). 4. The lower Court erred in failing to consider which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child, the factors enumerated in 23 Pa. C.S.A. 5303(a)(2). 5. The lower Court erred in transferring primary physical custody of the child from Defendant/Appellant to Plaintiff/Appellee herein when it followed the opinion of an expert discounted at trial.1 This opinion is written in support of the Order pursuant to Pa. R.A. P. 1925 and is based on the following findings of fact. 1 Statement of Matters Complained of on Appeal, filed May 23,2006. FINDINGS OF FACTS 1. The subject of this custody litigation is six-year-old Keaton G. Wilt, born on April 30,2000. 2. A two day hearing was held on this matter on February 10, 2006, and March 9, 2006. 3. Keaton suffers from a number of physical and emotional problems, including high anxiety and depression, which manifest as psychosomatic ailments such as nausea, as well as anger and aggressive actions toward others. These behaviors are most manifest at times of custody exchange between the two parties. 4. The child's natural father, Plaintiff/Appellee Derrick G. Avey ("Father"), resides at 8916 McClay's Mill Road, Newburg, Cumberland County, Pennsylvania, with his wife, Kyline C. Avey, and their two minor children. 5. Father and his wife have been married since 2000 and have resided at their current address since April 2002. At the time of the hearing, Father had been employed at Volvo Powertrain in Hagerstown, Maryland, for 5 % months.2 Wife works as a medical transcriptionist out of their home.3 6. The child's natural mother, Defendant/Appellant Acamie L. Wilt ("Mother"), resides at 2962 Cook Road, Fayetteville, Franklin County, Pennsylvania, with her paramour, Chad E. Cook, and their minor son, Dayton. Mother has worked as a substitute school bus driver for two years.4 Chad Cook had not worked for 2 % 2 Notes of Transcript from hearing held on February 10, 2006 and March 9, 2006, p. 7 (hereinafter "NT "). 3NT 181. 4 NT 104. 2 years as a result of an injury he sustained at Lear Corp, but recently obtained employment at Grove Corp.5 7. Mother and Mr. Cook, who as recently as March, 2006, was still married to another woman, have been together since 2000 and have resided at their current address since January 2006. 8. Chad Cook has a criminal record which includes an arrest for felony car theft at the age of 17, and convictions for Accidents Involving Damage to Attended Vehicle (Hit and Run) in 1997, Driving Under the Influence in 1999; and Unsworn Falsification in 2002.6 9. Both the Mother and Mr. Cook admit that Mr. Cook has a temper. 10. Mother and Mr. Cook have moved at least five times since Keaton's birth, with the most recent move in January, 2006, disrupting Keaton's kindergarten year.? 11. In approximately 2003, the Mother and Mr. Cook occupied a residence at Grindstone Hill Road, Chambersburg, where they were without water for three months.8 12. In addition to the child in this case, Mother has a son, Dayton, age 3, with Mr. Cook. Dayton resides with them. Mother also has a daughter, Anneka, age 14, who is in the primary custody of the Mother's parents. Anneka suffers from cerebral palsy and is confined to a wheelchair. 13. In addition to his mental and emotional conditions, Keaton suffered from a brain tumor, which was removed in February, 2005, a significant articulation problem, and developmental problems with his feet and legs, for which he is to wear corrective inserts in his shoes. 5 NT 235. 6 NT 225-26 7 NT 16, 100-03. 8Id. 3 14. Keaton's test results show that he is a child of above-average intelligence, with a "superior" ability to comprehend social information.9 15. This case began in 2001, when the Father initially sought shared custody in order to establish a relationship with his then-infant son. 16. The child, parents, and parents' significant others underwent court-ordered evaluations by psychologist Jeffrey Lensbower, who issued reports to this Court in February, 2005,10 and January, 2006.11 17. Jeffrey Lensbower is a Psychologist who has been licensed to practice in Pennsylvania since 1992. Psychologist Lensbower has worked with Keaton since 2004 and is extremely knowledgeable about the case. The Court finds his testimony and analysis of the family dynamics in this case very credible and gives it great weight. Counsel for the Mother stipulated to Psychologist Lensbower's expertise. 18. Psychologist Lensbower issued a follow-up letter on March 31, 2006, with the recommendation that primary custody be transferred to the Father, which prompted Father's Petition for Special Emergency Relief. 19. Primary custody was transferred to the Father by court order dated April 4, 2006, which is the subject of this appeal. 20. The parties agree that custody exchanges are a problem for everyone involved. 21. At the exchanges, the child kicks and screams at the Father, refuses to go with him, cries for the Mother, or tells the Father he hates him. However, once the child is with the Father - and out of the presence of the Mother - this behavior quickly subsides and the child engages in a normal, warm relationship with his father. 9 Plaintiff's Exhibit #6, p. 5. 10 Report of Psychologist Jeffrey Lensbower, February 5,2005 (hereinafter "2005 Report"). 11 Report of Psychologist Jeffrey Lensbower, January 20,2006 (hereinafter "2006 Report"). 4 22. According to Psychologist Lensbower, who observed the Father and child interact on December 2, 2005, the child's behavior with his father when away from his mother, was "spontaneously affectionate." The child placed his head on his father's shoulder, leaned into his father, sat very close to his father, and did not appear apprehensive. These behaviors are not typically observed when a child is interacting with someone he fears or despises.12 23. In contrast, when the child was in the presence of both parents, the child's posture "grew much more rigid and his behavior far more cautious.,,13 24. The most notable difference in the child's behavior when in his mother's presence was his reference to his father as "Derrick" instead of "Dad.,,14 25. The child stayed physically far from his father while in his mother's presence and ignored his father's requests for affection. 26. According to Psychologist Lensbower, the behavior described in paragraphs 21 to 25 above appeared very familiar, as though such interactions had taken place before.15 27. A previous observation, made as part of Psychologist Lensbower's February, 2005, report, describes how the child was at first hesitant around his mother when he learned that his father would be picking him up, but "became increasingly more excited to see his father." 16 12Id. 13Id. 14 This was noted by others at the hearing; both the Father and Psychologist Lensbower stated that the child called the Father "Daddy" while not in the Mother's presence. Mrs. Avey stated that the child told her that the Mother told the child not to call the Father "Dad." NT 16,28,44, 184. 15Id. 162005 Report, p. 10. 5 28. When the Mother seemed "attentive and warm" regarding the child's hesitations to go with his father, the child "seemed a little surprised by her responses... especially when she was very supportive of the exchange.,,17 29. In January 2005, as time for the exchange grew near, the child became "increasingly more excited to see his father" and was obviously happy to see his father when he arrived. 30. The child went back to talk to the Mother before leaving with the Father, and Psychologist Lensbower observed: Keaton returned to say goodbye to his mother and was very reassuring that he would be okay with his father. It seemed apparent to Keaton that Ms. Wilt misses him very much when he is visiting his father. He told her that he would be back several times, very reassuringly, as if there was question to his return. Keaton's hesitation was marked and indicates that he sees leaving his mother as very sad and hurtful for her. He tries to buffer her sadness. It is likely that Keaton tells Ms. Wilt that he does not want to see his father in an attempt to alleviate her sadness and worry. Ms. Wilt takes what he says to heart and feels that he does not want to go with his father. This causes stress between Ms. Wilt and Mr. Avey and Keaton which upsets Keaton. This cycle has likely been going on for some time.18 31. Psychologist Lensbower further observed the child referring to his father as "Derrick" only when the mother was within earshot, and checking the walls of the testing room to make sure that he could not hear through them. Once satisfied that he could not be heard outside the room, he referred to his father as "Dad" and to Mr. Cook as "Daddy Chad.,,19 32. Psychologist Lensbower's most recent report of January 20, 2006, following observation and evaluations of the child, the parents, and the parents' significant others, recommends that the current custody schedule (with the Mother having primary custody) be retained, as he could not say for certain at that time that she 17Id. 18Id. 192006 Report, p. 3. 6 was in fact promoting a negative relationship. However, he noted, if verification of the Mother's activities in that regard were found through court proceedings, he recommended transferring primary custody to the Father, as the parent being maligned.20 33. Since that recommendation, the Mother has continued to frustrate not only the Father's attempts to maintain a relationship with his son, but also the child's access to counseling sessions, which seemed to be helping to reduce his anxiety. 34. Since January, 2005, the child has attended counseling sessions with Angie Shahmoradi, a counselor with the Mountain Valley Center.21 35. The goal of these sessions was to reduce the child's anxiety symptoms relating to custody exchanges and to improve communication skills and verbalizing unmet needs to both parents.22 36. According to Ms. Shahmoradi, the child had initial difficulties in developing a relationship with her and trusting that what he said in therapy sessions was confidential.23 37. The child showed the most progress in accomplishing these goals during the summer of 2005, during which there was a "50/50" custody arrangement where the parties shared custody equally, resulting in more time spent with his father. 38. Following the first court hearing on this matter on February 10, 2006, in which Ms. Shahmoradi testified, there has been a decline in therapeutic 202006 Report, p. 17. 21 NT 82. 22 Testimony of Angie Shahmoradi, NT 86. 23 NT 87. 7 accomplishment because the child is refusing to talk to Ms. Shahmoradi, stating that he is afraid what he says will end up in court.24 39. When Ms. Shahmoradi discussed the child's fears with the Mother, the Mother informed her that the child does not think he needs counseling and did not want to continue attending the sessions. The Mother ignored Ms. Shahmoradi's concern that a 6 year old child may not be old enough to make such a decision.25 40. Additionally, Ms. Shahmoradi had to file a report with Child Protective Services regarding an incident where the Mother left the child's brother unattended in her car with the engine running at the counseling center. The 3 year old was able to put the car in reverse and drive across the parking lot, hitting a guard rail before someone could stop the car and remove the child. The Mother had been told previously not to leave her children in the car unattended with the engine running. 41. Ms. Shahmoradi also filed a report regarding the Mother's negligence in not having her children properly restrained in the car on several occasions when she arrived for counseling. 42. The Mother did not keep the child's ACCESS card up to date, and consequently the cost of his counseling sessions are not being paid. 43. Based on the information contained in paragraphs 39 through 42, it appears that the Mother may discontinue the child's counseling. 44. On March 31,2006, in a letter to the Court, Psychologist Lensbower expressed his concern with the Mother's disregard for her child's best interest and he recommended transferring primary custody to the Father, at least until the Mother completes therapy for her problems. 24 Letter of Psychologist Jeffrey Lensbower, March 31, 2006, p. I (hereinafter "Letter"). 25Id. 8 45. It is the position of Psychologist Lensbower that the Mother has "assumed a defensive posture against anyone who challenges her control over her son's interactions and visitations with his father,,,26 and that while some latitude in her behavior may have been acceptable in the past, she has now been presented with facts regarding her son's best interest which she chooses to ignore in favor of her own interests.27 46. The Mother has expressed her desire to not have the child see his father at all,28 supported by her own belief that it would make things better for everyone, even though in counseling the opposite was found - the child made more progress when he spent more time with his father.29 47. At the time of the hearing, the Father worked full-time for Volvo Powertrain on the three-to-eleven shift. Both the Father and his father-in-law, Jeffrey Keefer, indicated that the Father could obtain full-time work, with benefits, at Mr. Keefer's heating and air conditioning business, beginning immediately, and at approximately the same rate of pay. This would allow him to be home at more regular hours and to spend more time with the child. 48. At some point during the course of counseling with the child, Counselor Shahmoradi, as a mandatory reporter, was required to file a report with Franklin County Children and Youth, regarding a sexual abuse allegation made by Keaton toward Mrs. Avey. The allegation was determined to be unfounded.30 26Id. 27 Letter, p. 1-2. 28 Letter, p. 2. 29Id. 30 NT 167-68. 9 49. The child made the allegation to Ms. Shahmoradi after being brought into the room by the Mother, who prompted the child by saying, "Keaton has something that he wants to tell yoU."31 50. According to Psychologist Lensbower, the Mother mentioned the incident but did not seem unduly upset by it. When the child jumped into the conversation to confirm his mother's statements, the Mother "tended to feed Keaton's concerns rather than calm him.,,32 51. During the evaluation, Psychologist Lensbower found the Father's wife, Mrs. Kyline Avey, to be an asset to the child, as well as to set a positive example of good psychological and social functioning in her relationships with her husband and the other children in her house. 52. Based on the Court's observation of Mrs. Avey, her testimony, and the manner in which this report of sexual abuse surfaced, the Court finds that the allegation was concocted by the Mother in order to enhance her position with regard to custody of the child. 53. The child refers to Mr. Cook as "Daddy Chad," to which the Father does not object, stating that Mr. Cook is part of the child's life as wel1.33 54. The Father confirms that the child's relationship with the Mother is important and that he would help to foster that relationship. 55. Although the Mother and child have a warm and loving relationship, the Mother is projecting her separation anxiety into the child, which affects the way the child professes to feel about his father in her presence and the way he behaves at custody exchanges. 31 NT 168. 32 2006 Report, p. 4. 33 NT 17. 10 56. As the Father has legally sought to expand his relationship with his child, the Mother has taken action to prevent the child from expanding his relationship with the Father, in disregard of the child's best interest and to the point of being detrimental to the child. 57. According to Psychologist Lensbower, a parent who promotes a negative relationship between a child and the other parent will have an extremely negative, lifelong impact on the child.34 Mothers have a stronger influence on the development of emotional security than do fathers, and their ability to negatively influence the child's emotional development is much greater.35 58. Psychological research supports the conclusion that a child should be removed from the situation described in paragraphs 56 and 57 above and placed in the sole custody of the parent who is being maligned.36 DISCUSSION The General Assembly has declared that it is the public policy of this Commonwealth to assure a reasonable and continuing contact of a child with both parents after a separation. 23 Pa.C.S.A. s5301. In Pennsylvania, the paramount consideration in custody determinations is the best interest of the child. Moore v. Moore, 634 A.2d 163 (Pa. Super. 1993). The general provisions controlling custody decisions are set forth at 23 Pa. C.S.A. s5303(a): (a) General rule. (1) In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor which legitimately impacts the child's physical, intellectual and emotional well-being. (2) In making an order for custody, partial custody, or visitation to either parent, the court shall consider, 34 2006 Report. 35 2006 Report, p. 13. 36Id. 11 among other factors, which parent is more likely to encourage, permit and allow frequent and continuing access between the noncustodial parent and the child. (3) The court shall consider each parent and adult household member's present and past violent and abusive conduct which may include, but is not limited to, abusive conduct as defined under the act of October 7, 1976, known as the Protection From Abuse Act. To ascertain the child's best interests, the court is required to "consider all factors which legitimately impact upon the child's physical, intellectual, moral and spiritual well-being on a case-by-case basis in deciding how to allocate post-divorce parental authority via legal and physical custody." Zummo v. Zummo, 574 A.2d 1130 (1990). These factors include: which parent is more likely to encourage access to the noncustodial parent, the preference of the child, stability of the homes, parents' finances and work schedules, parents' new relationships, and siblings, as well as the opinions of experts. In this case it is in the best interest of Keaton Wilt to reduce his depression and anxiety and the resultant physical symptoms, and to further close relationships with both of his natural parents. After applying the above stated factors, this Court agrees with psychologist Jeffrey Lensbower that these interests are best served by transferring primary physical custody of the child to the Father. 1. Credibility of PsycholoQist Lensbower While the weight of the evidence and the credibility of witnesses, including experts, is a matter for this Court's discretion, the general rule for Pennsylvania custody cases is that expert testimony is to be considered only in conjunction with all the other evidence presented. Watters v. Watters, 757 A.2d 966 (Pa. Super. 2000). This Court finds Psychologist Lensbower to be a credible professional in psychology who has observed and evaluated the parties in the case for over two years, documenting the condition of the child and finally culminating in a recommendation to transfer custody to 12 the Father when the child's best interests demand it. His credible expert analysis supports the findings of fact made by this Court regarding what is in the best interests of this child. Although the Mother stipulated to Psychologist Lensbower's expert credentials at the hearing,37 she now seeks to appeal on the basis that he was "discounted." There is simply no basis in the record for this argument. 2. Access to the Noncustodial Parent An important factor in custody decisions is the determination as to which parent will most likely allow the child frequent and continuing contact with the other parent. 23 Pa.C.S.A. s5303(a) (2), see Roadcap v. Roadcap, 778 A.2d 687 (Pa. Super. 2001). Similarly, the Court may also consider the impact of a parent who consistently undermines the relationship of the child with the other parent or degrades the other parent. In such cases, the Court may deny custody to the offending parent. The importance of this factor, and the impact it can have on a child, are unfortunately well illustrated in this case. In fact, the depression and anxiety suffered by the child are a direct result of the Mother's failure in this regard. She has a proven tendency to impede the child's access and emotional connection to the Father, to the obvious emotional detriment of her child. The Mother has expressed a desire not to have the child see the father at all, believing that this would improve the situation for everyone involved. However, according to Psychologist Lensbower, just the opposite has proven true. Increasing the time the child spent with the Father, in the 50/50 schedule through the summer of 2005, somewhat decreased the child's depression and anxiety and improved his behavior. Furthermore, it is the concern of Psychologist Lensbower, and this Court, that the Mother has assumed a defensive posture against anyone who challenges her control over her son's interactions with his father, to the emotional detriment of the child. In 37 NT 32. 13 addition to her efforts to undermine the child's relationship with his father, the Mother has also proven a tendency to disregard the child's best interest when it comes to his much-needed counseling sessions. The goal of the sessions - to reduce the child's depression and anxiety and further communication and relationships with both parents - interferes with the Mother's personal desire to keep the child with her and away from the Father. As a result, she has become less supportive of the counseling, particularly after the counselor legitimately reported her to Children and Youth Services and testified in court. In turn, it seems that the Mother has either influenced the child's feelings toward the counseling (this Court finds it highly unlikely that the child independently formulated the fear that what he says may "end up in court"); or at the least, granted the child's occasional requests to forego counseling sessions. As Psychologist Lensbower stated, while it is not surprising that the child professes an occasional wish to avoid his counseling sessions, it is shocking that the Mother "seems to endorse his opinion as a viable or accountable decision of his best interests.,,38 The Mother also attempted to impede the child's access to his father by alleging that the Father's wife abused the child. These claims were brought up by the Mother, and then supposedly corroborated by the child in her presence. Furthermore, the Mother's reaction to the alleged incident was rather nonchalant, and she tended to "feed" his concerns rather than calm him. Not only did Children and Youth Services find these claims to be unfounded, but this Court believes that the Mother promoted the allegations knowing them to be false. This Court finds that it is inconceivable that the Step-Mother who has a responsible job as a medical transcriptionist and two children of her own with the father would sexually molest Keaton Wilt. This Court is all too aware of situations where feuding parents make allegations like this in order to enhance their own position in custody disputes. 38 Letter, p. 2. 14 Promoting a negative relationship between a child and a parent has the potential to create a lifelong negative impact on the child. The Mother has consistently undermined the relationship of the child with the Father, and shown a tendency to keep the child from counseling when it does not serve her interests. The negative impact on this child is obvious and not improving. Not only does the child's condition improve with more time spent with the Father, but this Court finds absolutely credible the Father's indications that he will continue to encourage the child's relationship with the Mother and that he supports the counseling. The best interests of this child clearly mandate transferring primary physical custody to the Father at this time. 3. The Preference of the Child The preference of the child constitutes an important factor to be weighed carefully in determining the child's best interest, but only as long as the child's preference is based on good reasons. E.A.L. v. L.J. W., 662 A.2d 1109 (Pa. Super. 1995). These reasons must comport with his best interests, whether or not he is able to identify them as such. Watters v. Watters, 757 A.2d 966 (Pa. Super. 2000). The child's maturity and intelligence must be considered in determining the weight of the preference. McMillen v. McMillen, 602 A.2d 845 (Pa. 1992). This Court purposefully declined to question this child as to preference given his age and the fact that the record indicated a child so conflicted over his love for both parents that it causes him mental, emotional and physical distress. According to the Mother, the child states that he hates the Father and does not want to go with him. Outside the Mother's immediate physical presence, the child's behavior simply does not support this statement. He behaves in a manner, according to Psychologist Lensbower, that is consistent with a child who has a warm, trusting, and loving relationship with his father. When questioned about his relationships with his parents, this child checks the 15 walls of the room he is in to determine who is listening, ostensibly to determine what to say to please the listening party. In fact, the root of the child's mental and emotional condition is his feeling that there is a "correct" preference to be expressed, depending on who is present. The simple truth seems to be that this is a child torn between his love for both parents and the anxiety and hurt he believes they cause each other. The parents misinterpret the reasons underlying his behaviors, and he is too young to tell them he does not want to hurt either one. In light of this child's best interests, it is the position of this Court that any attempt to elicit a preference from this child would have been not only futile but detrimental to his fragile emotional state. 4. Stability A long-standing custody arrangement where the child has a happy and warm relationship with a parent can be the decisive factor in a custody case. E.A.L. Sr. & J.L.L. v. L.J. W., 662 A.2d 1109 (Pa. Super. 1995). This includes a parent's maintenance of a single home as opposed to multiple moves. Bresnock v. Bresnock, 500 A.2d 91 (1985). There is little doubt that the child enjoys a warm and happy relationship with the Mother, with whom he has primarily lived since birth. However, while the Father and his family have occupied the same residence they purchased in 2001, the Mother has moved between rental properties at least five times since the child's birth, including in the middle of his first year of school. Additionally, at one of the Mother's residences, the family was without water for three months. The Mother's most recent move was to a house she purchased with her fiance, where they have lived since January 2006. While this presents the possibility of more stability than the Mother has been able to provide in the past, transferring primary 16 custody to the Father in no way disrupts any long-term stable living arrangement for this child. 5. Parents' Work Schedules and Finances It is in the best interests of the child to consider the work schedules and the amount of time the parties have available to care for the child in determining custody arrangements so as to maximize to the fullest extent possible the time that each parent spends with the child. Additionally, while not absolutely controlling, a Court may consider the available finances of each parent and ability to provide an adequate home and environment for the child. Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998), Roadcap v. Roadcap, 778 A.2d 687 (Pa. Super. 2001). Employed as a substitute bus driver, the Mother has a more flexible work schedule which can provide her with more time to spend with the child. At the time of the hearing, the Father worked the second shift from approximately 3:00-11 :00 P.M., which meant he arrived home after the child's bedtime. During the time the Father was working, his wife, who works from home as a medical transcriptionist, is available to care for the child. A parent's employment and consequent absence from the house cannot be a factor weighed against him if he or she provides adequate child care in his absence. Murphy v. Hata/, 504 A.2d 917 (Pa. Super. 1986). The mere fact that the Father is employed full time is not sufficient to deny custody since his wife, Mrs. Avey, is able to and does care for the child while he is away. This is especially so in this case, where the Court finds Mrs. Avey to be a positive source of support for the child and more than able to provide appropriate and warm care in a stable family environment. Furthermore, both the Father and his father-in-law testified that the Father can obtain full-time employment at the father-in-Iaw's heating and air conditioning business. This employment would be during normal business hours, allowing the Father to spend 17 more time with the child. Furthermore, the employment would provide similar benefits and nearly the same compensation as the Father is earning at his current job.39 The concern with finances is that a party be able to provide an adequate home and environment for the child. Although this Court is concerned with the Mother and Mr. Cook having gone without water for three months at a previous residence, the fact that they have purchased their current residence may be an indication of more sound financial footing. At present, neither party is in a financial situation which seems to hinder their ability to provide an adequate home or environment for the child, but the Father's financial situation is better than that of the Mother. 6. Parents' New Relationships When a custodial parent lives in a meretricious relationship with another person, or a person will exert a substantial influence over the child, Pennsylvania law requires that that person be viewed by the court and subjected to cross-examination as to his supervision, values and relationship with the children. Haller v. Haller, 547 A.2d 393 (Pa. Super. 1988). Both parents in this case have formed new long-term relationships. The Father has been married for approximately five years to his wife, Mrs. Avey, and they have created a stable and happy home environment for their two minor children. Mrs. Avey works from home and cares for the children during the day. There is nothing to indicate she is anything but a positive role model and source of support for all her children, including Keaton. The Mother and Mr. Cook have been in a relationship for nearly five years as well, during which Mr. Cook has remained married to another woman. While Mr. Cook professes to love the child, and in fact the child refers to him as "Daddy Chad," this Court 39 The Father would earn $15.00 per hour at his father-in-law's company, which is a decrease of $0.19 per hour from what he earns currently. 18 would be remiss if it neglected to address Mr. Cook's character. Both Mr. Cook and the Mother admit that he has a temper. He has also previously been arrested for a felony car theft at the age of 17, and convicted as an adult of a Hit and Run Offense in 1997, a DUI offense in 1999, and Unsworn Falsification in 2002. While this alone may not be a sufficient basis to transfer primary custody to the Father, it does constitute a factor in this Court's determination. 7. SiblinQs Siblings, whether biological or half, should be raised together. Ferdinand v. Clark, 763 A.2d 820 (Pa. Super. 2000) aff'd 784 A.2d 118 (Pa. 2001) citing Hockenherry v. Thompson, 631 A.2d 204 (Pa. Super. 1993). In this case, the child has a younger half-brother, who resides with his mother and Mr. Cook, and a half-brother and step- sister who reside with his father's family. The record indicates the child engages in normal relationships with his siblings at both households. Although he tends to be "clingy" to adults, and at times prefer their company to that of his siblings, he also sleeps in his half-brother's bed while at his father's house though he has his own room available to him. This indicates to the Court a child who enjoys and feels safe in the company of his siblings. CONCLUSION The clear best interests of this child are in reducing his anxiety and depression and in promoting communication in his relationships with both parents. The Mother has shown a tendency to disregard both the necessity of fostering a relationship between the father and the child and the necessity of counseling for the child, in favor of her own interests. In light of this, and given factors discussed above, the Court awarded primary 19 physical custody to the Father because he was the parent more likely to encourage, permit and allow frequent and continuing access between the noncustodial parent and the child. BY THE COURT, M.L. Ebert, Jr., J. Marylou Matas, Esquire Attorney for Defendant/Appellant Said is, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Marcus A. McKnight, III, Esquire Attorney for Plaintiff/Appellee Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 20