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E.S.C., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION
:
D.L.C., :
Defendant : NO. 2013-1927 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, S.J., September 26, 2013.
In this custody case, the father of two young children whose mother relented in a
decision to relocate from Pennsylvania to California following this court’s refusal to
grant her primary physical custody if she pursued the relocation has appealed to the
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Superior Court following the entry of an interim order that vacated the initial order and
awarded her primary physical custody pending a custody conciliation conference where
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the revised circumstances could be assessed. Whether the appeal is interlocutory is
3
beyond the scope of this opinion.
The bases for the appeal have been expressed in the father’s statement of errors
complained of on appeal as follows:
1) After three days of trial, the Court by Order dated August 13, 2013 awarded to
Appellant [father] primary custody of the parties’ children, [R.S.C.] and [C.R.C.] The
Order awarded temporary or partial custody to Appellee. The award was without
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The initial order granted primary physical custody to the father based upon the mother’s decision to
relocate to California, but included a paragraph indicating that, “[i]n the event that Defendant mother
chooses to alter her plan to relocate to California, the court will entertain a petition to revisit the custody
issue.” Order of Court, August 13, 2013. Within a few days of the order, Defendant mother filed a
petition advising that she would remain in Cumberland County, Pennsylvania. Defendant’s Petition for
Special Relief, filed August 16, 2013. By order dated August 20, 2013, the court scheduled a hearing on
the petition, and by order dated August 22, 2013, the court denied Plaintiff father’s motion to strike the
petition on procedural grounds. Following the hearing on Plaintiff mother’s petition, the court issued an
interim order dated August 30, 2013, vacating the initial order and awarding primary physical custody to
Defendant mother pending a custody conciliation conference scheduled for shortly thereafter, where the
revised circumstances could be assessed. Interim Order of Court, dated August 30, 2013.
A court’s authority to vacate an order within 30 days of its entry is found at 42 Pa. C.S. §5505.
2
Interim Order of Court, dated August 30, 2013.
3
But see G.B. v. M.M.B., 448 Pa. Super. 133, 670 A.2d 740 (1996).
condition. This Order constituted a Final Order. The Court never stated the reasons
for its decision on the record in open court, in a written opinion, or in the Order.
2) The August 13, 2013 Order included a provision at Paragraph that, “In the event
Defendant mother chooses to alter her plan to relocate to California, the Court will
entertain a petition to revisit the custody issue”. Said paragraph appeared to reference
a willingness by the Court to modify the partial custody schedule if Appellee did not
move.
3) The Court has not entered an opinion or undertaken any analysis of the factors for
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award of custody as set forth in 23 Pa. C.S.A. §5328.
4) The parties had acknowledged, by virtue of their Stipulation dated July 23, 2013 and
included as Joint Exhibit 1 at the hearing, the agreed procedural analysis regarding
the determination of the issue of primary custody and then the application of the
relocation factors, all to be completed in accordance with the best interest of the
children. This is consistent with S.J.S v. M.J.S., ___ A.3d ___, 2013 Pa.Super 227;
Collins v. Collins, 897 a.2d 466, (Pa. Super 53) 2006.
5) After the entry of the Order of August 13, 2013, the Court then entertained post-trial
relief titled inaccurately as a Petition for Special Relief filed by Appellee on August
16, 2013, whereby Appellee completely reversing the factual testimony at the three
days of hearing, including her situation and life plans, and indicated that she had now
“reconsidered” her move to California and would stay in Central Pennsylvania.
6) Although Appellant filed a Motion to Strike the Petition on August 16, 2013 since the
Petition constituted post-trial relief not sanctioned by Pa. R.C.P. 1915.10, the court
by Order dated August 22, 2013, denied the Motion to Strike holding that the Order
of August 13, 2013 included a provision that the Court “would revisit the terms of the
order in the event Defendant cancelled her plan to relocate to California with the
children”. The appropriate pleading was a Petition to Modify Custody, which the
Appellee did also file on August 16, 2013 and which is scheduled for a Conciliation.
7) On August 29, 2013, the Court then convened a short evidentiary hearing on
Appellees “Petition for Special Relief.” Said testimony failed to establish any
significant basis for change regarding primary custody except that Appellee chose
now not to move. The Court disregarded the fact that the children had already begun
the transfer to school at Appellant’s residence and into his primary custody in
implementation of the August 13, 2013 Order.
8) By Order dated August 30, 2013, the court, again without stating the reason for its
decision, either on the record in open court, in a written opinion, or in the order,
reversed its prior unconditional award of primary custody to Appellant and granted
Appellee primary custody of the children.
9) The Court designated its August 30, 2013 as an “Interim Order”. The result of such
designation was to significantly prejudice Appellant’s ability to seek prompt re-dress
of the Court’s unsubstantiated reversal of the final Order dated August 13, 2013
granting Appellant primary custody.
10) The Court erred procedurally in its actions after entering the final Order on August
13, 2013 in allowing Appellee’s post-trial motion and failing to set forth adequate
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An opinion was filed on the same day the appeal was taken.
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reasons regarding its findings underling [sic] its Orders dated August 13, 2013,
August 22, 2013 and August 29, 2013.
11) To date, the Court has failed to publicly of record indicate the reasons for any of its
decisions, either on the record in open court, in a written opinion or in the order.
Appellant has no substantive knowledge as to the Court’s reasoning which impairs
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his ability to adequately compile a comprehensive list of statements to complain of.
12) However, it is asserted the Court must have failed to appropriately weigh the
custodial factors in its decision making and, by it flip flopping of the grant of primary
custody to Appellee, it disregarded the weight of the evidence of Appellant’s parental
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strengths pursuant to full analysis of the factors included in 23 Pa. C.S.A. §5328.
13) It is believed that the Trial Court incorrectly applied the long abandoned preference
of award of primary custody to a parent based upon gender under the nurturing parent
doctrine, and otherwise disregarded competent testimony of Appellant’s superior
parental abilities.
14) The Court failed to consider and weigh appropriately testimony concerning:
Appellee’s clear lack of stability; her inconsistency in her personal life which will
add to the lack of stability of the children in their education, family and community
life; her inability to encourage and permit contact and promote the relationship
between the children and Appellant; the extent of past performance of parental duties
by Appellant and his superior ability to maintain a loving, stable, consistent and
nurturing relationship with the children; the supportive nature of Appellant’s family;
as well as other evidentiary factors required in the decision for primary custody
acknowledged to exist and underlying the Court’s August 13, 2013 decision. The
Court disregarded the Appellee’s lack of actual hand-on care of the children over the
last two years due to their full time enrollment in daycare, her college attendance, use
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of nanny, and Appellee’s frequent travel.
The issue of custody was the subject of a hearing held over the course of several
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days. This opinion in support of the court’s action is written pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a).
5
As previously noted, an opinion was filed on the same date the appeal was taken.
6
The opinion filed in this case on September 12, 2013, included a thorough analysis of the factors listed
in 23 Pa. C.S. §5328.
7
Plaintiff father’s Concise Statement of Errors Complained of Pursuant to PA. R.A.P. 1925, filed
September 12, 2013.
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Hearing dates: July 23, 2013, August 7, 2013, August 8, 2013, August 29, 2013.
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STATEMENT OF FACTS
Background
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Plaintiff is E.S.C., 42, a resident of Springfield, Fairfax County, Virginia.
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Defendant is D.L.C., 46, a resident of Mechanicsburg, Cumberland County,
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Pennsylvania.
14
The parties were married on April 15, 2006. Two children were born of the
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marriage: R.C. (d.o.b. June 16, 2007) and C.C. (d.o.b. May 4, 2009). The parties
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established separate addresses as of August 22, 2013, and a divorce action between
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them is pending.
1819
Plaintiff father is a commander in the supply corps of the United States Navy,
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assigned to the Naval Sea Systems Command in Washington, D.C., where his duties
21
relate to ship building and maintenance programs. His educational background includes
a bachelor’s degree in accounting and a master’s degree in information technology
22
management.
9
Joint Exhibit 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
10
N.T. 12, Hearing (morning session), July 23, 2013.
11
N.T. 38, Hearing, August 29, 2013.
12
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
13
N.T. 3-4, Hearing, August 29, 2013.
14
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
15
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
16
N.T. 38, Hearing, August 29, 2013. Nothing in this opinion is intended to represent a finding as to the
date of the parties’ separation for purposes of the Divorce Code.
17
N.T. 5, 80, Hearing (morning session), July 23, 2013.
18
N.T. 45, Hearing, July 23, 2013 (morning session); N.T. 4, Hearing, August 7, 2013.
19
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
20
N.T. 5, Hearing, August 7, 2013.
21
N.T. 45, Hearing, July 23, 2013 (morning session); N.T. 5, Hearing, August 7, 2013.
22
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
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Defendant mother is employed part-time as a desk clerk at a hotel in Cumberland
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County, Pennsylvania. Her educational background includes an associate’s degree in
hospitality management, an associate’s degree in business administration, and a
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bachelor’s degree in accounting. She is presently seeking more substantial employment
2526
in the Cumberland County area, having received the accounting degree in May, 2013.
Shortly after their marriage in 2006, the parties established a marital residence in
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Mechanicsburg, Cumberland County, Pennsylvania, where Defendant mother
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remains. Their first child, R., who is highly intelligent, was diagnosed at the age of
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two-and-a-half with autism and has been the subject of rather intensive special services
3132
since then. Their second child, C., does not have special needs.
The current custody litigation was precipitated by a decision of Defendant mother
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to relocate with the children to California. Events preceding this decision may be
summarized as follows: In May of 2012 Plaintiff father received a list of possible
subsequent assignments with the Navy and, pursuant to a mutual agreement of the
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parties, applied for billets in Cumberland County, Pennsylvania, and Washington, D.C.
With respect to the Washington, D.C., assignment, the parties’ plan was that Plaintiff
23
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013; N.T. 19, Hearing, August 29, 2013.
24
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
25
N.T. 10-11, Hearing, August 29, 2013.
26
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
27
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
The marital residence is currently listed for sale. N.T. 6, Hearing (morning session), July 23, 2013.
28
N.T. 3-4, Hearing, August 29, 2013.
29
N.T. 15, Hearing (morning session), July 23, 2013; N.T. 40, Hearing, August 8, 2013.
30
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013; N.T. 16-17, Hearing (morning session),
July 23, 2013.
31
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013; N.T. 27, 36-38, 46-48, Hearing, August
8, 2013.
32
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
33
See Custody complaint, filed April 11, 2013.
34
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
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father would reside during the week in the Washington, D.C., area and come home to
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Mechanicsburg, Pennsylvania, on weekends. The assignment, received on October 16,
3637
2012, was to Washington, D.C., with a commencement date between July 31, 2013,
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and August 31, 2013.
On December 16, 2012, Defendant mother announced to Plaintiff father that she
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did not want to be married to him anymore. At a Super Bowl party on February 3,
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2013, Defendant mother told a family friend that her ex-husband was the love of her
life, that he would be buying a million-dollar home for her to live in in California, and
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that she wanted to travel. On February 24, 2013, she revealed to Plaintiff father her
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decision to relocate to California. To this end, she solicited job offers from her ex-
434445
husband, a family member, and a friend, leased a house, enrolled C. in daycare, and
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located a public school for the older child, in California. Efforts to mediate the custody
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situation with the esteemed Arnold T. Shienvold, Ph.D., failed.
As noted, the court initially entered an order awarding primary physical custody of
the children to Plaintiff father, based upon the court’s view that the relocation of the
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children to California would not be in their best interests. The order indicated that the
35
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013; N.T. 25, Hearing, July 23, 2013.
36
N.T. 24, Hearing (morning session), July 23, 2013.
37
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
38
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
39
N.T. 29, Hearing (morning session), July 23, 2013.
40
N.T. 70, Hearing, August 8, 2013.
41
N.T. 187-88, Hearing, August 8, 2013.
42
N.T. 29, Hearing (morning session), July 23, 2013.
43
N.T. 30-34, Hearing, August 8, 2013.
44
N.T. 7-10, Hearing, August 8, 2013.
45
N.T. 26-27, Hearing, August 8, 2013.
46
N.T. 11-14, Hearing (morning session), August 8, 2013.
47
N.T. 45, Hearing, August 29, 2013.
48
Order of Court, August 13, 2013.
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question of custody would be revisited in the event Defendant mother altered her plan to
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relocate with the children. As further noted, Defendant mother did so, the order was
vacated, and a temporary order was entered awarding her primary physical custody
pending a conciliation conference at which the children’s situation could be evaluated
given the withdrawal of her decision to relocate them from Mechanicsburg,
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Pennsylvania.
Custody Factors Enumerated in 23 Pa. C.S. §5328(a)
Which party is more likely to encourage and permit frequent and continuing
contact between the child and another party. Defendant mother has shown herself less
likely than Plaintiff father to encourage and permit frequent and continuing contact
between the children and the other party, as exemplified by her initial plan to separate the
primary residence of the children from that of the father by a distance of nearly 3000
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miles, her interference on a certain occasion with his attempt to secure birth certificates
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of the children, and her failure on a certain occasion to promote his telephonic
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communication with the children.
The present and past abuse committed by a 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 supervision of the
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child. No abuse has been committed by a party or member of a party’s household.
49
Order of Court, August 13, 2013.
50
Interim Order of Court, dated August 30, 2013. The interim order was entered following a hearing at
which Plaintiff mother presented evidence which satisfied the court that she had, in fact, abandoned her
plan to relocate to California and intended to remain in Cumberland County.
The residences of the parties are now about 125 miles apart. N.T. 18, Hearing, August 29, 2013.
51
N.T. 7-8, Hearing, August 8, 2013; N.T. 12, Hearing, July 23, 3013.
52
N.T. 69, Hearing (morning session), July 23, 2003.
53
N.T. 48-49, Hearing, August 29, 2013.
54
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
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Defendant mother has shown herself to be especially concerned with the safety and
55
supervision of the parties’ child with autism, R.
The parental duties performed by each party on behalf of the child. As between
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the parties, Defendant mother has been the primary caretaker for the children and has
been a much more active participant in the treatment and supervision programs
57
necessitated by R’s condition of autism than has Plaintiff father, whose military duties
58
at times necessitated his absence from the home. For instance, Plaintiff father was
absent from the marital home for a continuous 7-month period in 2009-10, which
59
included a 6-month deployment to Kuwait, during which period R. was diagnosed with
6061
autism. Defendant mother’s involvement has included arranging for therapy and being
62
present with R. while he is in daycare. With her attention, R. has steadily improved as a
63
result of his therapies.
The need for stability and continuity in the child’s education, family life and
community life. As a result of his autistic condition, the parties’ child R. is particularly in
646566
need of stability, familiar surroundings and sustained treatment programs, which
55
N.T. 59-60, Hearing, August 7, 2013; N.T. 37-38, Hearing, August 8, 2013; N.T. 181, Hearing, August
8, 2013.
56
N.T. 29, Hearing (afternoon session), July 23, 2013; N.T. 57, 62, 72, 83, Hearing, August 7, 2013. “As
between the parties” is used in this context, because the parties have at times utilized the services of a
nanny to assist in the children’s upbringing. N.T. 47-90, Hearing, August 7, 2013.
57
N.T. 59-60, Hearing, August 7, 2013; N.T. 37-38, 181, Hearing, August 8, 2013.
58
N.T. 10, 12, Hearing (morning session), July 23, 2013.
59
N.T. 10, Hearing (morning session), July 23, 2013. The diagnosis of autism of the parties’ older child
occurred during this period of Plaintiff father’s deployment. N.T. 16, Hearing (morning session), July 23,
2013. Other deployments have been for shorter periods. N.T. 12, Hearing (morning session), July 23,
2013.
60
N.T. 16, Hearing (morning session), July 23, 2013.
61
N.T. 52-54, Hearing, August 8, 2013.
62
N.T. 31, Hearing (afternoon session), July 23, 2013.
63
N.T. 22-23, 61, Hearing, August 7, 2013.
64
N.T. 143-44, Hearing, August 8, 2013.
65
N.T. 143, Hearing, August 8, 2013.
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can, at least in part, be facilitated by his continued residency in the Mechanicsburg,
67
Pennsylvania, area.
The availability of extended family. Neither party has extended family in the
68
Mechanicsburg, Pennsylvania, or Washington, D.C., areas.
69
The child’s sibling relationships. The children do not have other siblings.
The well-reasoned preference of the child, based on the child’s maturity and
judgment. By agreement of the parties, the young children do not have the maturity and
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judgment to provide a well-reasoned preference as to custody placement.
The attempts of a parent to turn the child against the other parent, except in cases
of domestic violence where reasonable safety measures are necessary to protect the child
from harm. No pattern of disparagement by one parent of the other before the children
has been detected by the court.
Which party is more likely to maintain a loving, stable, consistent and nurturing
relationship with the child adequate for the child’s emotional needs. The history of
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Defendant mother’s relationship with the children as their primary caretaker, and in
particular her facilitation of, and very active participation in, the treatment of the elder
72
child’s autism, suggests that she is the more likely parent to maintain a loving, stable,
consistent and nurturing relationship with the children, adequate for their emotional
66
N.T. 139-40, Hearing, August 8, 2013.
67
With respect to schooling, R. completed kindergarten at the West Shore School District during the
2012-2013 school year, and has been promoted to the first grade for the 2013-2014 school year. Joint Ex.
1 (Joint Stipulation of Facts), Hearing, July 23, 2013. With respect to treatment, Defendant mother
testified that she is “making sure that all his therapy is in place and the therapists continue to work with
him.” N.T. 7, Hearing, August 29, 2013; see N.T. 181, Hearing, August 8, 2013. With respect to familiar
surroundings, she has secured places for the children at their traditional daycare facility and will be
utilizing the services of a nanny with whom the children have a long association. N.T. 7, 21, Hearing,
August 29, 2013.
68
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
69
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
70
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
71
N.T. 29, Hearing (afternoon session), July 23, 2013; N.T. 57, 62, 72, 83, Hearing, August 7, 2013.
72
N.T. 59-60, Hearing, August 7, 2013; N.T. 37-38, 181, Hearing, August 8, 2013.
9
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needs. While Plaintiff father’s support of the children through his employment has been
essential to their well-being, his level of personal involvement with the children’s every-
74
day lives has not been comparable to that of Defendant mother’s.
Which party is more likely to attend to the daily physical, emotional,
developmental, educational and special needs of the child. The history of Defendant
mother’s contribution to the children’s daily physical, emotional, developmental,
educational and special needs suggests that she is more likely than Plaintiff father to
75
attend to those needs.
The proximity of the residences of the parties. The parties’ residences are about
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125 miles apart. This distance is not so great that a custody arrangement similar to that
contemplated by the parties, prior to Defendant’s mother’s decision to relocate with the
77
children to California, can not be achieved.
Each party’s availability to care for the child or ability to make appropriate child-
care arrangements. Each party is capable of making appropriate child-care arrangements
78
for the children, and both parents are available on weekends to care for the children in
79
person. At the present time, Plaintiff father’s employment with the United States Navy
8081
will necessitate his absence from his residence from 7:35 a.m. to about 4:45 p.m.,
73
Defendant has been in the United States Navy since 1994. Joint Ex. 1 (Joint Stipulation of Facts),
Hearing, July 23, 2013.
74
N.T. 55-60, 62, Hearing, August 7, 2013.
75
N.T. 29, Hearing (afternoon session), July 23, 2013; N.T. 57, 62, 72, 83, Hearing, August 7, 2013.
76
N.T. 18, Hearing, August 29, 2013.
77
Joint Exhibit 1 (Joint Stipulation of Facts), Hearing, July 23, 2013; N.T. 25, Hearing (morning session),
July 23, 2013.
78
N.T. 43-44, Hearing (afternoon session), July 23, 2013; N.T. 7, Hearing, August 29, 2013.
79
N.T. 5-6, Hearing, August 7, 2013; N.T. 19, Hearing, August 29, 2013.
80
N.T. 54, Hearing, August 29, 2013.
81
N.T. 56, Hearing, August 29, 2013.
10
whereas Defendant mother’s current employment situation leaves her more free time on
82
weekdays.
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 a child from abuse by
another party is not evidence of unwillingness or inability to cooperate with that party.
Both parties are mature in terms of age, are well-educated, and love their children. The
level of incivility between them is probably less than that of most custody litigants, and
each is capable of cooperating with the other, albeit without enthusiasm.
The history of drug or alcohol abuse of a party or member of a party’s household.
About twenty years ago, Defendant mother was charged with driving under the influence,
participated successfully in a program equivalent to Pennsylvania’s accelerated
83
rehabilitative disposition program, and earned an expungement of the record. No
evidence has been adduced to suggest that Plaintiff father has any criminal record.
84
Neither Plaintiff father nor Defendant mother abuses alcohol or uses drugs.
The mental and physical condition of a party or member of a party’s household.
No evidence has led the court to find that either Plaintiff father or Defendant mother
suffers from any mental or physical condition that would affect his or her ability to care
for the children.
Any other relevant factor. Plaintiff mother’s abandonment of a plan to move to
California, which she clearly regarded as being in her own best interest, in light of the
court’s conclusion that it would not be in the best interests of the children, is a factor that
tends to mitigate the negative effect of her initial failure to accord the children’s best
interests their proper weight.
DISCUSSION
82
N.T. 19, Hearing, August 29, 2013.
83
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
84
Joint Ex. 1 (Joint Stipulation of Facts), Hearing, July 23, 2013.
11
As noted previously, Defendant mother’s decision to relocate with the children to
California precipitated the instant custody litigation and resulted in an order awarding
85
primary physical custody to Plaintiff father. The order, however, expressly indicated
that, “[i]n the event that Defendant mother chooses to alter her plan to relocate to
California, the court will entertain a petition to revisit the custody issue.” She did so
86
immediately, and produced evidence at a hearing leading the court to conclude that her
abandonment of the plan was complete and that her intention to remain in Cumberland
87
County was firm. Under these circumstances, including Defendant mother’s history of
dedication to the task of ameliorating the autistic child’s condition, which has met with a
high degree of success, and the advantage of maintaining the status quo for that child, in
terms of his neighborhood, school and treatment by familiar service providers, the court
entered an interim order reading as follows:
AND NOW, this 30th day of August, 2013, upon consideration of Defendant’s
Petition for Special Relief with respect to custody of the parties’ children, R.S.C. (d.o.b.
June 16, 2007) and C.[R].C. (date of birth May 4, 2009), and following a hearing held on
August 29, 2013, it is ordered and directed, pending the custody conciliation conference
scheduled for Thursday, September 19, 2013, and further order of court, as follows:
1. The Order of Court dated August 13, 2013, is vacated.
2. Legal custody of the children shall be shared by the parties;
3. Primary physical custody of the children shall be in Defendant, the
Mother;
4. Temporary or partial physical custody of the children shall be in
Plaintiff, the Father, on three consecutive weekends out of four, from
Friday at 7:30 p.m. until Sunday at 3:00 p.m.; provided, that where the
following Monday is a federal holiday the period of temporary or partial
physical custody shall extend until Monday at 3:00 p.m.;
5. Transportation for purposes of custody exchanges shall be the
responsibility of the party receiving custody; and
6. Nothing in this order is intended to preclude the parties from
88
deviating from the terms of the order by mutual consent.
85
Order of Court, dated August 13, 2013.
86
See Order of Court, dated August 13, 2013, ¶5.
87
N.T. 5-16, Hearing, August 29, 2013.
88
Interim Order of Court, dated August 30, 2013.
12
This order, which would be in effect for only a few weeks, (a) was intended to
minimize disruption in the children’s lives while the result of Defendant mother’s
alteration of her relocation plan became clear in terms of her final living and occupational
arrangements in Cumberland County and (b) acknowledged the mother’s successful role
as primary caretaker of the children, under difficult circumstances, in the past. In entering
this order, the court attempted to be mindful of the rule that the polestar of any custody
89
case is the best interests of the children.
With specific reference to several of the bases of the present appeal by Plaintiff
father, as expressed in his statement of errors complained of on appeal, the following may
be noted. First, notwithstanding Appellant’s procedural objection to the court’s refusal to
strike appellee’s petition for special relief, and the court’s vacation of its initial custody
order following a further hearing, the authority of a lower court to vacate an order of any
type within 30 days of its entry is found at 42 Pa. C.S. §5505. Second, an opinion
thoroughly explaining the court’s rationale, including an analysis of the custody factors
enumerated in 23 Pa. C.S. §5328, was filed shortly after the entry of the interim order
now on appeal. Third, it is hardly unusual for the issue of physical custody to be affected
90
by the abandonment of a parent’s plan to relocate. And, finally, Appellant’s statement
in the errors complained of on appeal that “[t]he Court disregarded the fact that the
children had already begun the transfer to school at Appellant’s residence and into his
primary custody in implementation of the August 13, 2013 Order” is, to put it kindly,
misleading; as of the August 30, 2013, interim order the children (a) remained in the
physical custody of the mother pursuant to the summer schedule contained in the initial
August 13, 2013, order, (b) had not visited, let alone resided in, the father’s new
91
residence in Virginia, and (c) had not begun to attend school in Virginia.
89
N.H.M. v. P.O.T., 2008 PA Super 90, 947 A.2d 1268.
90th
See, e.g., Klingman v. Klingman, 2001 WL 1846965, 54 Pa. D. & C.4 28 (Lehigh Co. 2001) (father’s
petition for primary physical custody deemed moot where mother’s petition to relocate to North Carolina
denied).
91
N.T. 38-39, Hearing, August 29, 2013.
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BY THE COURT,
__________________
J. Wesley Oler, Jr., S.J.
Dawn S. Sunday, Esq.
39 West Main Street
Mechanicsburg, PA 17055
Custody Conciliator
Barbara Sumple-Sullivan, Esq.
549 Bridge Street
New Cumberland, PA 17070-1931
Attorney for Plaintiff Father
Lindsay Gingrich Maclay, Esq.
Suite 203
5005 E. Trindle Road
Mechanicsburg, PA 17050
Attorney for Defendant Mother
14