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HomeMy WebLinkAbout2013 – 1772 T. B., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : K. B., : NO. 2013 – 1772 CIVIL TERM Defendant : : IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., September , 2013 On July 1, 2013, we held a custody hearing involving the parties’ two sons, Thomas, born October 20, 2005 and Jacob, born April 17, 2012. At the conclusion of the hearing we awarded the parties shared legal custody, with Mother having primary physical custody during the school year and the parties sharing physical custody on a weekly basis during the summer months. Father has filed this timely appeal in which he alleges that we 1 erred in 1) failing to comply with various provisions of the Custody Act; 2) granting Mother primary physical custody in light of her alleged misconduct; and 3) failing to consider the best 2 interests of the children. We will discuss those issues in the opinion that follows. FACTUAL BACKGROUND 3 The parties were married in Virginia on August 27, 2005. While they began living together in Pennsylvania, Mother and her two sons from a prior relationship moved with Father 4 to Virginia in November of 2004 so that he could pursue employment opportunities. 1 23 Pa. C.S.A. § 5321 et seq. 2 See Concise Statement of Errors Complained of on Appeal. 3 Transcript of Proceedings, p. 28. 4 Transcript of Proceedings, pp. 27, 28. 5 The parties moved back to Pennsylvania in early 2007. In July 2012 they moved into a house in Mechanicsburg owned by Father’s parents. In December 2012 Father told Mother 6 that she needed to move out. At the beginning of March 2013 Mother still had not left. Father gave her two weeks to get out, telling her that if she could not find a place he would 7 keep their sons until she did. On March 12, 2013, Father told Mother she needed to figure 8 something out and somewhere to go because she was not staying there. On March 15, 2013 Mother moved with their sons into her parents’ home in York Haven, York County, Pennsylvania. In addition to her parents, she has extended family, including siblings, an aunt, and a cousin also living in that area. They are all available to help 9 with the children. Mother kept the boys from Father when she first left because she was 10 afraid he would not return them. Since the temporary custody order was entered in April 11 both parties have been cooperative and flexible in connection with the custody schedule. As soon as Mother relocated to York Haven, she enrolled Thomas in Newberry Elementary. He did well in that school and was looking forward to returning there after 12 summer vacation. Mother has been the primary caregiver for the children since they were born. Father 5 Transcript of Proceedings, p. 13. 6 Transcript of Proceedings, p. 12. 7 Transcript of Proceedings, p. 12. 8 Transcript of Proceedings, p. 33. 9 Transcript of Proceedings, p. 31. 10 Transcript of Proceedings, pp. 13, 42. 11 Transcript of Proceedings, p. 24. 12 Transcript of Proceedings, pp. 3, 31. 2 13 argued that he ceded that role to her because he was the family’s main support. While Mother made several attempts to work, she was unable to keep a job because of Father’s 14 refusal to help with the children. DISCUSSION 15 Failing to Comply with Child Custody Act Father’s first allegation of error is that we failed to follow the provisions of the child Custody Act. Specifically she alleges that we did not articulate on the record the reasons for 16 our decision as required by 23 Pa. C.S.A. §5323. He also alleges that we “awarded custody with a clear presumption in favor of Mother in violation of 23 Pa. C.S.A. § 5327 (a), instead of 17 weighing the sixteen factors as required under 23 Pa. C.S.A. § 5328.” We respectfully disagree with those allegations. At the conclusion of the testimony both counsel made closing statements. Father’s counsel argued that 1) he loves and cares for his children; 2) Mother was the primary caregiver only because he worked at the higher paying job; 3) he would provide stability because he did 18 not intend to move; and 4) he wanted primary or shared physical custody. Mother’s counsel argued that 1) while Mother concedes that Father is capable of caring for the children, she has always been the primary caregiver; 2) she is willing to work to insure that Father maintains a 13 Transcript of Proceedings, p. 17. 14 Transcript of Proceedings, pp. 34, 36, 37, 44. We also note that while Father fancied himself the breadwinner, he also had difficulty maintaining employment. 15 23 Pa. C.S.A. § 5321 et seq. 16 See “Concise Statement of Errors Complained of on Appeal” No. 1. 17 See “Concise Statement of Errors Complained of on Appeal” No. 4. 18 Transcript of Proceedings, p. 51. 3 relationship with the children; and 3) while she eventually intends to move from her parents’ home she will stay in the same school district, in part because of the extensive family support 19 system. At the conclusion of the arguments we took a recess to review our notes, the exhibits and the custody factors set forth in 23 Pa. C.S.A. § 5328 (a). After the recess we reconvened to announce our decision in open court. Before entering the order, we stated the following: Let me start by saying that you two have a delightful young man for a child. It was a pleasure to meet with him. He is polite, he is well-spoken. That is credit to both of you. He didn’t want to be here. This is tough on him, as it is on any children that have to go through it. . . . You owe it to him to get along as well as you can and to present a united front in front of that young man. I’m encouraged that while you may be crappy spouses, you’re pretty good parents, both of you, and I think you would both agree with that. Looking at the custody factors, there is no question but that mom had been the parent responsible for caring for the children before; and that because of the difference in 20 school districts, we can’t’ have full shared custody. 21 We made it clear that we considered the custody factors. Based upon those factors we were satisfied that a shared custody arrangement would have been appropriate if the parties lived closer to each other. Since such an arrangement was not practical, we kept the children with Mother because of her consistent role as primary caregiver. We can state unequivocally that we started with no presumption. The evidence showed two capable parents. Since shared custody was not practical during the school year, we determined that it was best for primary physical custody to remain with the nurturing parent. 19 Transcript of Proceedings, p. 52. 20 Transcript of Proceedings, pp. 52, 53. 21 We did not see a need to articulate each factor. 4 The evidence showed that Mother was the nurturing parent and assumed primary responsibility for the care of the children. She assumed those duties not because father worked, but rather because he wanted it that way. Even when Mother worked, Father was 22 content in allowing, even requiring, Mother to perform the duties of primary caregiver. Mother’s Alleged Misconduct Father next alleges that we erred in awarding primary physical custody to Mother because 1) she moved the children from the school district without his knowledge; and 2) she 23 kept him from seeing the children for a period of time. We were satisfied that Mother had valid reasons for both actions. We found Father’s argument that Mother should be faulted for moving to York County to have been somewhat disingenuous. In the first instance, he effectively evicted her from the marital residence which was owned by his parents. Furthermore, at least in part because of his refusal to care for the children, Mother was unable to hold a job. Therefore, she was totally dependent upon him financially. While he gave her some money to find a place to live, we believed her when she testified that her only viable option was to move in with her parents. While we did not condone Mother’s refusal to allow the children to see Father, we did understand it. We were satisfied that she honestly believed Father would not return the children. Furthermore, as soon as a custody order was entered, she cooperated fully in making sure he had liberal contact with his sons. 22 Transcript of Proceedings, pp. 52, 53. 23 See “Concise Statement of Errors Complained of on Appeal.” 5 Best Interests of the Children Father’s final contention is that we failed to consider the best interests of the children. Again we respectfully disagree. As noted above we considered the custody factors set forth in 23 Pa. C.S.A. §5328 (a). When we talked to the parties’ oldest child he made it clear that he “wants to stay with both 24 (parents), but that’s not how they want it to be.” He went on to say: I want to spend with my Dad for Sunday, Monday, Tuesday, Wednesday, Thursday, and Friday, Saturday, Sunday; then my Mom can have me on Monday, Tuesday, Wednesday, 25 Thursday and Friday and Saturday and Sunday. In addition he made it very clear that he is happy in his current school district. With those two factors in mind, we structured an order that would maximize the time the boys could spend with each parent and still allow the older child to attend his school. As we stated: So, Mom, a major factor in this case is the fact that you’re going to live in the West Shore School District with your son attending the school he is now attending. He likes it there. If you two decide that a move out of that school district is in his best interests, 26 that’s a parent’s job and you can do that. If you can’t, then I’ve got to look at it again. _________________ _________________________ DATE Edward E. Guido, J. 24 Transcript of Proceedings, p. 6. 25 Transcript of Proceedings, pp. 6, 7. 26 Transcript of Proceedings, p. 58. 6 Cindy Villanella, Esquire 875 Market Street Lemoyne, Pa. 17043 Timothy Smith, Esquire Community Law Clinic 371 West South Street Carlisle, Pa. 17013 :sld 7