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HomeMy WebLinkAbout94-1354 CIVILMICHAEL W. BROWN, JR., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. DALIAH BROWN FERKO, Defendant 94-1354 CIVIL CIVIL ACTION - LAW CUSTODY IN RE: PETITION FOR SPECIAL RELIEF AND TO MODIFY CUSTODY ORDER BEFORE HESS, J. OPINION AND ORDER This custody matter is before the court on petitions filed by the mother, Daliah Ferko. The child who is the subject of these proceedings is Benjamin Joshua Brown (Joshua) who was born on October 13, 1991, in Garmisch-Partenkirchen, Germany. At that time, the father, Michael Brown, Jr., was stationed in Europe as a member of the United States military. Following Joshua's birth, the mother and father separated and the mother and Joshua relocated from the marital residence. In August of 1993, the mother petitioned the German court, Amtsgericht Garmisch-Partenkirchen (the German court), to confirm custody of Joshua in her. On August 13, 1993, the German court granted the mother custody. Several days later the father left Germany with Joshua to visit his family in the United States. The understanding was that Joshua would be returned to his mother in Germany after the two-week period. Joshua, however, was not returned. Eventually, the mother traveled to the United States and, on or about August 14, 1994, was able to make contact with the father. One day later, the father filed a petition for emergency relief and a complaint in custody. On August 16, 1994, the Honorable Harold E. Sheely entered an order of court giving the father temporary physical custody. In October of 1994, a 94-1354 CIVIL conciliation conference was conducted. The mother, who had since returned to Germany, participated by telephone. On October 18, 1994, Judge Sheely entered an order granting legal and primary physical custody of Joshua to the father. In 1996 and 1997, the mother filed petitions which resulted in her spending more time with Joshua. In 1998, this case again came before the courts on the mother's allegation that the father would not allow the child to accompany her to Virginia to attend the rehearsal dinner for her wedding. An order, favorable to the mother, was issued by the Honorable Edward E. Guido on September 3, 1998. The matter is now again in litigation as a result of incidents that occurred in July of 2001. At that time, the father discontinued Joshua's enrollment at the West Creek Hills Elementary School and enrolled him in a so-called "cyberschool," the Einstein Academy. On August 30, 2001, the mother filed a petition for special relief contending that the father violated her rights to shared legal custody, by not consulting her, and that the father was, otherwise, not acting in a manner consistent with Joshua's best interest. A request for an order of emergency relief was denied but a full review of the current custody situation was set in motion when a conciliation conference was scheduled. The conciliator recommended that the matter be set down for hearing before the court. Three days of hearings were conducted before the undersigned between December of 2001 and March of 2002. In the meantime, in December of 2001, the mother filed a petition to vacate the existing custody orders, contending that the order entered in Cumberland County, Pennsylvania contravened the Uniform Child Custody Jurisdiction Act in that the court failed to recognize and enforce the custody order of the German court. Even assuming that, under state or even 2 94-1354 CIVIL international law,~ the order of the German court is entitled to full faith and credit, its enforcement at this juncture is entirely impracticable. In any event, because we are now changing primary physical custody, the issue has become moot. As noted above, the current series of hearings were triggered by the father's unilateral removal of the child from public school. By the time we conducted our final hearing, Joshua was re-enrolled in West Creek Hills Elementary. While the mother disapproved of cyberschool, it was, to some extent, a benefit to her as it made shared physical custody a very real possibility in this case. Now, however, because Mrs. Ferko resides in Lancaster and Mr. Brown resides in Cumberland County, Joshua cannot spend equal time with both parents during the school year. Among the first of the witnesses was Richard Fry, principal at the West Creek Hills Elementary School. He questioned the wisdom of enrolling Joshua in cyberschool. He described Joshua as being of above average academic aptitude but requiring interaction with children his own age in order to improve his social skills. We are satisfied from the testimony that the enrollment of the child in cyberschool was not a good idea. Just as importantly, a change was made in the child's schooling without any real consultation with the mother. One of the threads of this case is that Mr. Brown acts unilaterally with respect to the child. The mother has had to fight for her time with Joshua. She is met with resistance in anything other than the strictest compliance with the letter of the custody order. As noted in the brief filed on Ms. Ferko's behalf, she has had great difficulty in playing a more meaningful role in her son's upbringing because of the father's inflexible attitude and behavior. He has not ~ Mother asserts that legal principles discouraging the umlateral removal of children, similar to Pennsylvania law which disfavors the same practice, can be found in The Hague Convention of October 25, 1980, on the Civil Rights Aspects of International Child Abduction. 94-1354 CIVIL provided her with information regarding Joshua's medical care providers and has failed to list her as an emergency contact person. He has restricted telephone access and has consistently refused to allow additional time with Joshua. He does not consult with the mother in decisions regarding Joshua's health, education and welfare. We are satisfied that Mrs. Ferko will treat Mr. Brown very differently than he treats her. When she has partial custody of Joshua, she encourages him to contact his father by telephone. She has assured the court that if she were awarded primary physical custody she would be flexible and would encourage Joshua to spend as much time with both parents as possible. She has testified, credibly, that she would involve the father in all of the decisions pertaining to Joshua's health, education, and welfare. Joshua was interviewed in chambers. He was extremely articulate for a ten-year old. He was acutely aware of what is going on around him. He presented as a sensible and honest young man. While he liked cyberschool, he clearly missed his friends in the East Pennsboro School District. He expressed a desire to spend more time with his mother and indicated, in fact, that he was favorably disposed to living with her and giving the public schools in the Lancaster area a It is well settled under Pennsylvania law that a court may hold a hearing for custody modification even absent an allegation of"changed circumstances." Garrv. Peters, 773 A.2d 183 (Pa. Super. 2001). The court must look only to the best interest of the child. In considering that best interest, the trial court must consider all factors that legitimately affect the child's physical, intellectual, moral, and spiritual well being. Clapper v. Harvey, 716 A.2d 1271 (Pa. Super. 1998). As between two fit parents, the test of best interest is initially weighed equally 4 94-1354 CIVIL as to each parent and a parent will prevail when the weight of evidence shifts even slightly in his or her favor. Id. This case clearly involves two fit parents. A factor weighing in favor of the father is the preservation of the status quo. To be sure, the importance of continuity in a child's life and the development of stable relationships cannot be underestimated. While we must acknowledge that the status quo has been primary physical custody in the father, it cannot be forgotten that it was he and not the mother who interrupted his schooling, providing computer learning one moment and public school the next. We agree with the mother that factors weighing in her favor include a greater degree of flexibility and Joshua's expressed preference to spend more time with her. This is also one of those unusual cases where a change in primary physical custody will cause little or no disruption to the child. We agree also with the statements in the brief filed on behalf of the mother: First, Mother clearly demonstrated that she is the more flexible parent. Mother testified that, if she were awarded primary physical custody, she would be flexible in attitude and would encourage Joshua to spend as much time with both parents as possible. She testified that she would involve Father in all of the decisions involving Joshua's health, education and welfare. She also testified that she and Joshua visited the elementary school in her area where Joshua would attend school if Mother were awarded primary physical custody. Mother's Post-Hearing Memorandum, p. 17. We conclude that the mother has demonstrated the kind of attributes which tip the scales, albeit slightly, in her favor. While it is not a factor bearing on Joshua's best interest and therefore is not controlling with respect to the conclusion we reach today, it is at least of interest to put this matter once again in its historical perspective. Mr. Brown originally acquired custody of Joshua by failing to 94-1354 CIVIL return him to his mother in accordance with his agreement and in defiance of an order of court. He has had primary custody for eight years. There is certainly now no harm in permitting Joshua to spend some of his childhood with his mother. ORDER AND NOW, this day of June, 2002, effective with the school year 2002- 2003, the existing order of court will be modified to provide that primary physical custody of Benjamin Joshua Brown shall be in his mother, Daliah Brown Ferko. Both parties shall have legal custody of said child and there shall be significant periods of partial custody in the father, Michael W. Brown, Jr. The parties shall submit, within thirty (30) days hereof, written proposals concerning the father's partial custody and other matters to be included in a final order of court, this order to be regarded as a temporary order. The submission by the parties of any proposals shall not be deemed a waiver of the right to except to the final order. BY THE COURT, Madelaine Baturin, Esquire For the Plaintiff Richard Gaffney, Esquire For the Defendant :rlm Kevin A. Hess, J. MICHAEL W. BROWN, JR., Plaintiff VS. DALIAH BROWN FERKO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94-1354 CIVIL CIVIL ACTION - LAW CUSTODY IN RE: PETITION FOR SPECIAL RELIEF AND TO MODIFY CUSTODY ORDER BEFORE HESS, J. ORDER AND NOW, this day of June, 2002, effective with the school year 2002- 2003, the existing order of court will be modified to provide that primary physical custody of Benjamin Joshua Brown shall be in his mother, Daliah Brown Ferko. Both parties shall have legal custody of said child and there shall be significant periods of partial custody in the father, Michael W. Brown, Jr. The parties shall submit, within thirty (30) days hereof, written proposals concerning the father's partial custody and other matters to be included in a final order of court, this order to be regarded as a temporary order. The submission by the parties of any proposals shall not be deemed a waiver of the right to except to the final order. BY THE COURT, Madelaine Baturin, Esquire For the Plaintiff Richard Gaffney, Esquire For the Defendant :rlm Kevin A. Hess, J.