text:
    Rivera v. Argot

      C.P. of Monroe County,
    no. 554 D.R. 1994.

      Jeffrey J. Kash, for plaintiff.

      Wieslaw T. Niemoczynski, for defendant.
    October 8, 1998
   WALLACH MILLER, J.,

Amy Argot, Mother, met Pedro Rivera, Father, when she was 16 and working at K-Mart in Mount Pocono, Monroe County. He was 18, recently graduated from Pocono Mountain High School, and also working there. They began dating and married on June 1, 1991. Amy’s parents were not in favor of this marriage. Five months after the wedding, their son Malcolm was bom on November 6, 1991.

Mother finished high school at Pocono Mountain and the couple then moved to Philadelphia, where Father had extended family. Mother attended the Philadelphia College of Art briefly. Both parties worked minimum wage jobs until the summer of 1993, when Mother returned to the Poconos with Malcolm. Father soon followed. The parties lived together a short time and then separated. They agreed to a no-fault divorce, which was entered by this court on November 23, 1994.

On February 9,1995, Father filed a complaint for custody and after a hearing before the master, the parties agreed to a shared schedule wherein Father would have physical custody of Malcolm every weekend and three weeks in the summer. Mother would have custody all other times.

On August 23, 1996, Father filed a petition for emergency relief when Mother announced she was moving to North Carolina with Malcolm. Following a meeting with the custody conciliator, the parents agreed to shared legal custody and a shared physical custody schedule which would give each of them alternating weeks of custody.

On October 8,1997, Father filed a petition for modification and a conciliation conference was held on November 18, 1997. Both parties asked for primary physical custody at that time. Home studies were requested, and the conciliator recommended that the alternating weekly schedule continue.

Catholic Social Services completed the home studies on February 25, 1998, and on June 22, 1998, Mother petitioned for an evidentiary hearing which occurred on September 22, 1998.

While both parents have moved to new locations since the home studies were completed, the descriptions of the parents’ residences in the home studies are of little consequence. However, the background information provided by the home studies gives us a great deal of insight into the parents, and confirms our observations of the parents and parties involved in this child’s life. The home studies are in evidence as a joint exhibit. Based on the evidence presented, we find that both parties’ current homes are more than adequate.

Perhaps the best way to describe this case is that of a clash of cultures. Mother’s family lives in an area of Monroe County that is referred to as “the Mountain.” The Argots are a large and respected clan in that area. They are hardworking, proud and proficient hunters, fishermen and outdoorsmen. They are also opinionated and wary of outsiders.

Father’s family comes to Monroe County by way of his father’s transfer with a company that moved its manufacturing plant to Mount Pocono. He was raised primarily in Philadelphia in a proud and hardworking Hispanic culture. He has held numerous jobs since high school and has been employed for the last three years by CorNet International as a software analyst.

Malcolm is a part of both cultures, something each of the parents can’t seem to comprehend. Their constant denigration of each other has come to a point where this soon to be 7-year-old is like many children we see in custody cases — angry and confused. We met with Malcolm in chambers, and in many ways he’s a normal little boy. He’s bright, active and curious. He’s also frightened and unsure of what his future holds. While he told us many contradictory things, the one thing he was certain of was his fear of losing both of his parents.

Child custody cases are the most difficult assignment a judge can receive. While the law is relatively simple on its face — “the best interest of the child” — the determination must be made on a case-by-case basis and requires weighing all factors which bear upon a child’s physical, intellectual, moral and spiritual well-being. Barron v. Barron, 406 Pa. Super. 401, 594 A.2d 682 (1991); Blew v. Verta, 420 Pa. Super. 528, 617 A.2d 31 (1992).

The parents are currently sharing custody of Malcolm on an alternating weekly schedule based on an agreement they reached two years ago. Both live in the same school district, thus Malcolm can access both homes by school bus. All agree that he is doing well in school. He has friends in school and in both neighborhoods. He has become a Cub Scout.

At the evidentiary hearing, Father testified that he thought the current arrangement was working well but he wanted primary physical custody because he felt that Mother was unstable, was causing Malcolm to be torn apart by her constant criticism of him and his culture, and was concerned that he was being replaced by Mother’s boyfriend.

On the other hand, Mother testified that she thought the current arrangement was not good for Malcolm because he wasn’t being cared for properly, he sometimes wore dirty clothes, on one occasion he was wearing underwear that was too small, Father failed to cut Malcolm’s fingernails, Malcolm was unruly when she picked him up and Father was unstable because he held numerous jobs.

One of the advantages of being a trial court judge is that we get to see the parties when they testify. Often what happens in the courtroom isn’t evident on the record. While Father testified in a calm and credible manner, Mother’s reaction was dramatic and disproportionate. She clearly was not listening to what he said but was only concerned with refuting it. With much whispering to her counsel and passing of notes, she made it clear without saying that we shouldn’t believe a word he was saying. Once on the witness stand, she testified that she has no respect for Father. She blatantly admitted she doesn’t like him and admitted to calling him a variety of names, but that these “were not directed at Malcolm.” She admitted she discusses the custody and court issues with Malcolm and attributes Malcolm’s anger to Father’s teaching him karate and kickboxing and allowing him to watch “Buffy, the Vampire Slayer.” In spite of her testimony that she considers this television program inappropriate, her exhibit no. 32 shows Malcolm dressed for Halloween 1997 as a vampire in a costume she provided. Mother further testified that she wants primary custody because Malcolm “needs one family to love.”

We also heard testimony from Shandra Rivera who has been married to Father since January of 1996. She is the mother of Malcolm’s two half-brothers, Miguel, age 2 and Daivin, 8 weeks. We must agree with the characterization of her in the home study. She impressed us as a calm and competent person mature beyond her 21 years. She recognizes her position as Malcolm’s stepmother and treats him equally with all of the children. On one occasion when Malcolm referred to her as “Mommy,” he was corrected and it hasn’t occurred again. She further impressed us as a stable and intelligent woman. She is currently on a maternity leave from CorNet International.

Mother called as a witness Anthony Antonacci whom she has been dating for six months and engaged for two. She currently lives in Mr. Antonacci’s home. He testified that he has an excellent relationship with Malcolm and that Malcolm sometimes calls him “Dad.” When this occurs, neither Mother nor Mr. Antonacci correct him. Prior to dating Mr. Antonacci, Mother had a relationship with another man who had moved in with her subsequent to her divorce. According to Mother’s home study, this relationship ended due to his physical and emotional abuse.

Perhaps the witness giving us the most insight into the case was Ray Argot Jr., Malcolm’s maternal grandfather. He and his wife live about two miles from Mother. Malcolm spends a lot of time at their home, which is in a wooded area where they have horses, chickens and pigs. He plans to teach Malcolm to shoot and hunt and has a collection of knives that he plans to give Malcolm “when he’s older, around 12.” Mr. Argot testified in a frank and forthright manner and admitted to some swearing and cursing in Malcolm’s presence but testified he didn’t use certain swear words “because they were Negro words.” While he denied using the pejorative “spic,” he readily admitted to “Here comes Julio in the Puerto Rican mobile” when Father comes to pick up Malcolm. Malcolm is his only grandchild.

Other witnesses included Heather Ace, Mother’s best friend, who corroborated that Father was a liar and not to be trusted. We find her lacking in credibility. Ellen Bilger, a relative of Mother’s who cares for Malcolm while Mother works, testified in a credible and rational manner. Jeanne Shoemaker, Father’s supervisor at his place of employment, testified that he was a dedicated worker, on time, and reliable. We find her to be a credible witness.

All witnesses testified that they loved Malcolm and wanted what was best for him. Thus, we are confronted with the question of what order will serve Malcolm’s best interests? As Judge Spaeth wrote in In re Custody of Temos, 304 Pa. Super. 82, 450 A.2d 111 (1982), “child custody cases are among the most difficult of cases, and we pretend to no special wisdom regarding their proper disposition.... Every current of our lives flows through them. They engage our most deeply held beliefs, recall our most poignant experiences. No concern is more precious than our children, not simply because we care so much about their present happiness but because the future depends upon their wholesome growth.” Id. at 94, 95, 450 A.2d at 117.

In this case, it is clear that Malcolm is subjected to unpleasant comments about his Hispanic heritage while with his Mother and her family. We do not believe that they realize how this can impact on this little 6-year-old. However, “[a] court may not assume that because children will encounter prejudice in one parent’s custody, their best interests will be served by giving them to the other parent.” In re Temos, supra at 100, 450 A.2d at 120. If children are taunted and hurt, with love and help they may surmount their hurt and grow up strong and decent — the sort of children of which any parent would be proud. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); Commonwealth ex rel. Lucas v. Kreischer, 450 Pa. 352, 299 A.2d 243 (1973). See also, In re Davis, 288 Pa. Super. 453, 432 A.2d 600 (1981). We know that may not happen, and can only hope that the adults will understand the damage to Malcolm that their behavior causes.

The Temos case involved a mother who was involved in an interracial relationship. Our Superior Court reversed the trial court’s grant of custody to father, finding that the lower court failed to examine all of the factors involved in the case and focused only on the children’s problems with mother’s African-American paramour.

We believe that the best interests of Malcolm are best served by leaving in place the current order. It provides for shared legal and physical custody and we find that the evidence shows that the criteria for this type of an order are met. See In re Wesley J. K., 299 Pa. Super. 504, 455 A.2d 1243 (1982). We find both parents are fit and both desire a continuing involvement with Malcolm. Both parents are seen by Malcolm as sources of security and love; the parents are able to communicate on a minimal level. We recognize that no couple, divorced or intact, agrees on every aspect in the upbringing of a child. As Malcolm becomes older, the time spent in each household may need to be extended. However, at his age, research shows that children believe a parent has stopped loving them when contact is reduced. According to studies conducted by the Center for Divorce Education and endorsed by the National Council of Juvenile and Family Court Judges, children in the 6- to 8-year-old group hope and believe that someday mom and dad will get back together, and will feel a sense of responsibility to take care of the parents, despite their own emotional needs. Parents are advised that children of this age group especially need to be protected from the parents’ disappointments and anger. They need to avoid, at all costs, criticizing the other parent in front of the children. What children need most at this time is the reassurance from both parents that although mom and dad don’t get along well enough to live together, they both still love and will take care of the children. And it is critical that the children be assured that it is all right to still love both parents. Arbuthnot, J. and Gordon D. (1992), What about the Children: A Guide for Divorced and Divorcing Parents, Athens, Ohio: The Center for Divorce Education.

The issues raised by both parents are issues that we see in all custody cases. Parents need to understand that regardless of what custody schedule is in place, even if it be weekends, there will be an adjustment period when Malcolm comes into their home. It’s very common for children in custody cases to be unruly for a time and run through the house upon arrival. The child is making sure that nothing has changed while he’s been gone. Is his bed still where it was when he left? Does the dog still know him? Are his fish still alive? Is his favorite drink still in the refrigerator? It’s part of his need to know that he’s still loved and a part of this family. We also find that 6-year-old boys get dirty. That’s normal. Malcolm’s anger will only lessen when his parents’ anger and animosity lessen.

Both families involved in this case have a culture, history and capacity for love that can be of immense value and importance to Malcolm as he grows. The question remains as stated above: will they have enough respect and love for Malcolm to put their adult biases aside and recognize that he is their creation and a part of both of them?

ORDER

And now, October 8,1998, the order of this court dated September 13,1996 based upon an agreement of the parties shall become the final order in this case.


source: Caselaw Access Project

author: Nix III, Member,

license: Public Domain

text:
    In re Anonymous No. 124 D.B. 96

      Office of Disciplinary Counsel no. 124 D.B. 96.
    July 15, 1998
   Nix III, Member,

I. HISTORY OF PROCEEDINGS

On October 3,1996, á petition for discipline was filed against respondent by Office of Disciplinary Counsel. Respondent filed an answer on November 25, 1996.

On November 26, 1996, the petition was referred to Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire and [ ], Esquire.

On December 2, 1996, an answer supplement to the petition for discipline was filed by respondent.

On February 21, 1997, [ ], Esquire entered his appearance on behalf of respondent.

On April 29, 1997, a disciplinary hearing was held.

The Hearing Committee filed its report on January 20, 1998, recommending that the respondent receive a one-month suspension.

Petitioner filed a brief on exceptions on February 9, 1998 and requested that a two-year suspension be imposed. Respondent filed a brief on exceptions on March 2,1998, requesting oral argument, and requested that an informal admonition or private reprimand be imposed.

On April 13,1998, respondent requested that the record be reopened which request was opposed by petitioner.

On May 4, 1998, this board denied the respondent’s request to reopen the record.

On May 20, 1998, oral argument was held in the District III Office before Chair Robert N.C. Nix III, and Members Carolyn Raven Rudnitsky and Richard W. Stewart.

This matter was adjudicated at the June 10,1998, meeting of the board.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, [ ], was bom on March 28, 1959 and was admitted to practice law in the Commonwealth of Pennsylvania on or about May 31, 1991. In his latest attorney registration statement, respondent Usted his place of employment and mailing address as the law firm of [ ], which has an office at [ ]. Respondent is currently on inactive status in the Commonwealth of Pennsylvania and is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) In October 1990, respondent filed an application for admission to the bar of the Commonwealth of Pennsylvania.

(4) In response to question 11(a) on that application, which asks whether the applicant has “within the last three years undergone treatment or been committed to an institution for treatment of a mental illness,” respondent checked “no.”

(5) That answer was false, in that respondent had been hospitalized periodically beginning in 1982 for “nervous breakdowns” and had been diagnosed in 1988 as suffering from a “bipolar disorder.”

(6) Respondent intentionally omitted this information on his bar application because he believed that the disclosure of his mental condition would prevent him from becoming licensed in Pennsylvania.

(7) Respondent has never practiced law in the Commonwealth of Pennsylvania and went on inactive status in Pennsylvania in May 1997.

(8) Respondent’s history of mental illness began in 1982, and he was eventually diagnosed in 1988 as suffering from a bipolar disorder that required periodic hospitalizations.

(9) His condition was initially treated with lithium and haldol, which treatment was incorrect.

(10) His drug treatment was corrected and since the change in medication to lithium and risperdal, no hospitalizations have been necessary.

(11) Respondent sees a psychiatrist on a quarterly basis to monitor his condition and drug treatment.

(12) In March of 1991, respondent subsequently became a member of the Washington, D.C. Bar. He failed to disclose his mental history to the Washington, D.C. authorities.

(13) In December 1995, respondent applied for admission to the Maryland Bar and on this application, he voluntarily disclosed his mental health history.

(14) By letter dated December 15, 1995, respondent voluntarily informed both the Office of Disciplinary Counsel and the Washington, D.C. authorities of his failure to disclose his mental health history.

(15) Respondent had concerns about the confidentiality of such information.

(16) Respondent believed that such information was strictly confidential between him and his doctor.

(17) Respondent believed that the stigma of being known as a person with a mental illness would end his legal career before it had started.

(18) Question 11(a) on the Pennsylvania Bar application is no longer asked since the passage of Americans with Disabilities Act.

in. CONCLUSIONS OF LAW

Respondent’s failure to truthfully respond to question 11(a) on his Pennsylvania Bar application is a violation of R.P.C. 8.1(a) and R.P.C. 8.4(c) & (d).

IV. DISCUSSION

There is no question that respondent’s misconduct, is a violation of the Rules of Professional Conduct, and the only issue before this board is the determination of the appropriate discipline. In determining the appropriate discipline, the board must be mindful of the precedents which provide a benchmark for tailoring an appropriate discipline to a particular set of facts. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983). Further, this board must also be cognizant of the fact that our bar recognizes the seriousness of the misconduct, as it applies to the public’s need for confidence in the system. Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986).

It is also well settled that the Rules of Professional Conduct apply to attorneys even though their transgressions were committed prior to their admittance to the bar. Office of Disciplinary Counsel v. Zdrok, 538 Pa. 41, 645 A.2d 830 (1994).

In cases involving the failure to truthfully answer a question on the bar application, our Supreme Court has consistently imposed public discipline. In In re Anonymous No. 8 D.B. 94, 29 D.&C.4th 315 (1995), the respondent in her bar application failed to disclose the fact that she had been arrested for driving under the influence and possession of a controlled substance. She also failed to completely list her employment for the last seven years and to list all the bar examinations for which she had sat. She was suspended for 12 months.

In In re Anonymous No. 80 D.B. 94, 36 D.&C.4th 31 (1996), the respondent was arrested on seven occasions between 1978 and 1987. In 1989, he applied for admission to the bar but failed to reveal any of his arrests. Subsequent to his admission to the Pennsylvania Bar, he applied for admission to the Delaware Bar. Despite the fact that the Delaware authorities notified respondent that they were aware of two of his arrests, he failed to disclose the five other arrests, nor did he contact the Pennsylvania Bar. He did not contact Pennsylvania until after he was denied permission to sit in Delaware, after which time, he disclosed all violations. He was suspended for two years.

In In re Anonymous No. 6 D.B. 94, 43 D.&C.4th 150 (1999), the respondent was arrested for sexual solicitation of a male police officer. He failed to disclose on his bar application that he was arrested. Although this charge was ultimately dismissed, he was suspended for one year and one day.

In In re Anonymous No. 24 D.B. 79, 15 D.&C.3d 199 (1980), the respondent failed to disclose that he had applied for admission to the Maryland Bar. He testified that his withdrawal of his Maryland Bar application acted as a nullification of the application and obviated any need to disclose it. This board imposed an informal admonition.

It is clear from these precedents that the intentional falsification of information on a bar application usually warrants a suspension from the practice of law. However, the instant case does not involve the failure of an applicant to disclose some past conduct. This respondent failed to disclose the existence of a medical condition, mental illness.

At the hearing respondent testified to his medical history and drag treatment. Respondent’s history of mental illness began in 1982. In 1988 respondent was diagnosed with bipolar disorder. This disorder resulted in periodic hospitalizations for respondent. Respondent was initially treated with a combination of lithium and haldol. This treatment was not effective and was later corrected in 1994 by a change in medication to lithium and risperdal. This combination has been successful and respondent has not suffered any setbacks. Respondent continues to see a psychiatrist to monitor his condition and medications.

In explaining why he provided a false answer on the bar application, respondent testified to his belief that the stigma of being known as a person with a mental illness would adversely affect his career aspirations, and he expressed his concern as to the confidentiality of the information. The board has always been cognizant of the stigma associated with mental illness, and we understand respondent’s belief that any lack of confidentiality might end his career before it started. Certainly, such a revelation about anyone, in general, but a professional in particular, would have a devastating effect on one’s career. In evaluating the testimony of respondent, the board does not find that respondent’s mental condition caused him to engage in the misconduct, as there was no specific testimony on that point. The board does conclude that respondent’s testimony, while not excusing his misconduct, certainly helps to explain his motivation and should be evaluated in that light.

Another factor that must be considered is the removal of the question concerning mental health history from the bar application after the passage of the Americans with Disabilities Act. By removing this question from the bar application, one is led to surmise that the question on its face is inappropriate. The removal of this question adds credibility to respondent’s concerns.

Other factors which perhaps are not mitigation, but crucial pieces of the puzzle, include the fact that respondent did all he could to cure his violation, he cooperated with the Office of Disciplinary Counsel and he demonstrated that he is suitably remorseful. It must also be noted that absent respondent’s affirmative disclosure of his mental health history, it is unlikely that the issue would have ever been brought to light.

Absent the specific facts of this case, petitioner’s recommendation of a two-year suspension appears adequate. However, this board must differentiate between the failure to disclose some past conduct, as opposed to a mental illness. Having taken note of this difference, the board feels that the case of In re Anonymous No. 24 D.B. 79 supra, is most analogous to the instant matter. The instant matter is arguably more serious than the previously cited case, due to the obvious intent in the respondent’s conduct.

However, given the facts surrounding this particular case, public discipline is not warranted. The Hearing Committee recognized the unique nature of this case and the numerous mitigating factors, as does this board. Thus, they recommended a one-month suspension stating that this discipline should encourage those who have erred to remedy, as best they can, their errors. However, a suspension, whether it be one month or two years, would be unduly harsh under the circumstances.

Finally, this board must take note and recognize the professional manner within which petitioner has conducted itself. Clearly, petitioner, in addressing that most difficult of tasks, the determination of discipline, may have felt their hands were bound. Petitioner is correct in its efforts to send the message that misrepresentations of past conduct will not be tolerated. However, this board after weighing the facts and equities must disagree with petitioner’s recommendation in this matter and this board has decided to subject the respondent to a private reprimand.

V. DETERMINATION

The Disciplinary Board of the Supreme Court of Pennsylvania determines that the respondent, [ ], shall receive a private reprimand. The expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Stewart dissented without recommendation.

Board Members George and Cunningham did not participate in the June 10, 1998 adjudication.

ORDER

And now, July 15, 1998, upon consideration of the report and recommendation of Hearing Committee [ ] filed January 20,1998; it is hereby ordered that [respondent] be subjected to private reprimand by the Disciplinary Board of the Supreme Court of Pennsylvania as provided in Rule 204(a)(5) of the Pennsylvania Rules of Disciplinary Enforcement. Costs shall be paid by the respondent.


author: FORD, J.,

text:
    Lozoskie v. Lozoskie
    C.P. of Lehigh County,
    no. 90-FC-1253.

      John P. Karoly Jr., for plaintiff.

      Susan G. Maurer, for defendant.
    November 16, 1998
   FORD, J.,

This difficult custody case periodically comes before the court for hearing, and the updates that we receive at each hearing are not encouraging. The relationship between the plaintiff mother and the defendant father has not been good during our acquaintance with the case and seems to get worse as time passes. At the center of the dispute is the parties’ son, Ryan C. Lozoskie, who was bom on September 16, 1987.

The father lives in Virginia. The mother lives in Lehigh County with the child. In June of this year, the father, with counsel, came before the court to reinstitute regular visitation with his son. There already was in place the August 23,1996 order of court which granted the father regular, unsupervised visits with his son. That order was entered by agreement of the parties. However, as we will explain later in this opinion, the father did not properly utilize the visitation rights granted him under the order and, primarily through his own fault, had not seen his son from September of 1997 until June of 1998. Both parents contributed to this nine-month gap in face-to-face contact, but the fault was primarily the father’s.

On June 10, 1998, we scheduled a hearing on defendant’s petition for special relief wherein the defendant was seeking to reinstitute visitation. Despite the fact that counsel for the plaintiff, John R Karoly Jr., Esquire, had appropriate notice of the scheduling of that hearing (while he did not formally enter his appearance until June 19, 1998, we note that he filed a petition of record on behalf of the plaintiff dated December 29,1997 and participated in a phone conference with the court in 1998, before June), he gave the plaintiff only one day’s notice of that hearing. Accordingly, she did not appear for the hearing, particularly when she learned that Attorney Karoly was not available for the hearing and that, if she was to be represented at the hearing, it was to be by Attorney Lewis Thompson, an associate of Attorney Karoly. The associate of Attorney Karoly appeared on June 10, 1998, the very day when the case was called for hearing, and presented a motion for continuance for an inadequate reason. The motion was denied and properly so. Attorney Karoly did not appear on June 10.

At the hearing on June 10, we took testimony from the defendant and granted him a one-hour visitation that day, on a supervised basis, which visitation took place.

Subsequent to the hearing, the court entered an order on June 16, 1998, which was signed by our colleague, the Honorable Edward D. Reibman, and which order was entered after request by the undersigned to Judge Reibman with a dictation as to exactly what should appear in the order. The order was entered in this fashion because of the unavailability of the undersigned during that week.

Among other things, the order directed that the defendant “shall pick up the minor child at the plaintiff’s home at noon on June 20,1998 and transport the child to Baltimore, Maryland and plaintiff, Jane Tercha, shall pick up the minor child at the paternal grandparents’ home in Baltimore, Maryland on June 21, 1998 at 8 p.m.” The order further provided that, beginning two weeks after the June 20-21 visitation, “The prior order of court dated August 23, 1996 shall be in effect until further order of court.” We note that the August 23,1996 order had never been rescinded or altered.

The defendant’s petition for contempt and sanctions that was filed against plaintiff and Attorney Karoly, and is a subject of this order and opinion, pertains to the visitation that was denied the father on June 20 and 21,1998.

We now set forth our findings of fact.

It is undisputed that Attorney Karoly and plaintiff, Jane Tercha, knew about the provisions of the court’s order of June 16, 1998.

Upon receipt of this order, the plaintiff and Attorney Karoly consulted for the purpose of doing what was necessary to make sure that the court-ordered visitation for June 20-21 did not occur. At all times, plaintiff, Jane Tercha, acted on the advice of Attorney Karoly and believed that, in good faith, she could disregard the provisions of our June 16 order. Accordingly, we dismiss the petition for contempt and sanctions that was brought against her.

On June 19, 1998, at 3:45 p.m., Mr. Karoly filed a notice of appeal with the Lehigh County Clerk of Courts, civil division, appealing our order of June 16, 1998 to the Superior Court of Pennsylvania. The next day, June 20, the defendant drove from his home in Virginia, with the paternal grandfather, to pick up the child and return with him to Virginia for the overnight visitation. After a stop at the state police barracks (which we thought unnecessary), the father went to the home of the mother. The mother and child were not there. At some point, the father had a discussion with the maternal grandfather, who told the father that he could not have visitation that day. The maternal grandfather displayed an “unsigned order” which indicated that visitation should not take place. The “unsigned order” was a copy of the notice of appeal or a copy of some other document pertaining to the appeal. The father looked around that locale to locate Ryan but was unsuccessful. He returned to his home and visitation did not take place that weekend.

The notice of appeal that was filed on June 19, 1998 was filed for one purpose by Mr. Karoly, to provide him with an argument that he could use to defeat the visitation that we had ordered. His argument was that the notice of appeal acted as an automatic supersedeas justifying his client in denying visitation on June 20. During the course of the September 22 hearing, Mr. Karoly admitted that that was the purpose of the filing of the notice of appeal.

The history of this appeal at the level of the Superior Court of Pennsylvania corroborates that this appeal was not filed in good faith because of any belief in the merits of it, but rather was filed as a vehicle to frustrate what this court had directed. In an order dated October 2,1998, the Superior Court of Pennsylvania dismissed plaintiff’s appeal based on “appellant’s failure to serve the trial court judge and court reporter with a copy of the notice of appeal as required by Pa.R.A.P. 906(a)(2), (3); appellant’s failure to comply with the trial court’s order of July 13, 1998 directing the filing of a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b); and appellant’s failure to order and pay for the transcripts as mandated by Pa.R.A.P. 1911(a).”

Also, the statement made by Mr. Karoly in his written closing argument following the September 22 hearing demonstrates his determination that he, rather than the court, would determine visitation, at least on June 20 and 21. He states:

“Accordingly, because the June 16, 1998 order provided a sudden overnight visitation of the minor child, Ryan Lozoskie, with his father whom he had not seen or heard from for nearly 10 months and, because the minor’s court-ordered counselor, Jack Gerhard, and the minor’s mother, plaintiff, Jane Tercha, represented that this visitation would create immediate and irreparable harm to the minor child, an appeal was filed that date...

Court orders must be respected by the parties. Counsel cannot willy-nilly alter our orders because counsel believes that we have made a mistake, particularly in a difficult custody case like this. Additionally. Mr. Karoly’s argument is frivolous. There is no automatic supersedeas in child custody actions. An appeal of a child custody order shall operate as a supersedeas only after application to and approval of the court. Pa.R.A.P. 1732 and 1733. See also, the discussion in Groner v. Groner, 328 Pa. Super. 191, 197-99, 476 A.2d 957, 959-61 (1984). The conduct of Attorney Karoly is offensive, at best. If we condone it or ignore it, we undermine our own orders by allowing machinations of counsel, such as Mr. Karoly’s, to subvert what we have put into place for the best interests of the child.

Mr. Karoly is correct that he cannot be held in contempt of court because he was not a subject of the court order. However, his conduct was unprofessional, unauthorized and vexatious to defendant and his counsel in terms of time lost, attorney’s fees and subversion of the contact the court granted for the father with the child. Counsel for the plaintiff asked, in the subject petition and orally in court, that sanctions be awarded against Mr. Karoly for this conduct. The issue of sanctions is properly before the court and, for the reasons which we have stated, we tax as costs against John P. Karoly Jr., Esquire, a reasonable counsel fee in the amount of $500. (This amount requested by defendant is reasonable and probably does not adequately cover the attorney’s fees necessary to address this issue, but this is the extent of the request.)

Our authority for awarding counsel fees is twofold. Statutorily, counsel fees may be part of taxable costs for dilatory, obdurate or vexatious conduct. 42 Pa.C.S. §2503(7). Further, lower courts have inherent power to take necessary actions to ensure its ability to conduct its business in an orderly fashion. This inherent power includes the ability to take action against an attorney, who is an officer of the court, in the form of reimbursement to parties of amounts lost due to the attorney’s misconduct. Coburn v. Domanosky, 257 Pa. Super. 474, 390 A.2d 1335 (1978).

Under this authority, we also require Mr. Karoly to pay a reasonable mileage fee to the defendant for traveling from his home to Lehigh County and back again on June 20, in the fruitless visitation effort. This cost directly results from the obstructive conduct of Mr. Karoly. We assess this cost in the amount of $124.80, which represents 390 miles at $.32 per mile (round trip).

By agreement of the parties, we permitted Mr. Karoly to state various oral motions at the time of the hearing so that all matters could be concluded in this one hearing. Mr. Karoly then proceeded to make quite a number of oral motions. They included a motion for sanctions against Attorney Maurer, counsel for the defendant, for making the motion against Mr. Karoly, a motion for contempt against the father for alleged failure to comply with the counseling requirements of earlier orders, failure to appear for visitation at the times that visitation was authorized, alleged consumption of alcohol during visits, the denigration by the father of the mother, violation of other requirements pertaining to the setting up of visitation, improperly dropping off the child at the paternal grandparents’ home when no one was allegedly available to receive the child at that time (July 5,1998), dropping the child off too early on July 5,1998, alleged threats to the mother and Mr. Jack Gerhard, and other motions for contempt regarding visitation or failure to have visitation. In addition, Mr. Karoly filed plaintiff’s petition to quash improper petition for contempt and sanctions by defendant.

By our order, we deny all of these petitions filed by Mr. Karoly. There is no evidence of any wrongful conduct by Attorney Maurer, and as we have addressed in detail, there is merit to her petition for sanctions against Mr. Karoly. It appears to us that Attorney Maurer has acted responsibly in the representation of her client. As to the allegations against Mr. Lozoskie, there is no evidence to support most of these allegations. As to the remaining allegations, a finding of contempt is inappropriate and so we deny the oral motion of Mr. Karoly in that regard. However, we grant other relief in the form of altering the visitation which is permitted to him. The best interests of the child require such alteration.

The believable evidence from the September 22 hearing convinces us that unsupervised and regular visitation by the father with the child is no longer appropriate, despite the agreement of the parties reached in 1996.

The lack of contact between the father and Ryan from September of 1997 until June of 1998 is, in a word, inexcusable. The father alleged a number of attempts by him to reinstitute the contact. He claimed that the mother frustrated him at every turn. His testimony is unconvincing in this regard, although the mother can hardly be called a facilitator of the visitation. The believable testimony demonstrates that the defendant haphazardly and irregularly sought contact with his son. The court would have assisted in reestablishing contact with the appropriate petition, brought long before the petition which brought the defendant to court on June 10, 1998.

Father made infrequent attempts at telephone conversations between September of 1997 and June of 1998. What we heard from the testimony was that there were only three actual telephone conversations during that time. Letters were never sent and gifts were never exchanged.

We find from the evidence that the father does denigrate the mother to and in the presence of the child. This is obviously hurtful to the child. When the defendant was confronted with the question of whether he had referred to the mother as a “bitch” in talking with the child, the defendant gave the curious answer that he “may have called her that.” The defendant also admitted that, on at least one occasion, Ryan became upset with the way that he referred to the mother.

There was admission by the defendant of some profanity and screaming in the presence of the child but not directed to him. From the evidence that we heard, this also is bothersome to the child.

The defendant has admitted that he has denigrated Mr. Jack Gerhard, Ryan’s counselor, to Ryan. He also discussed issues with Ryan regarding Mr. Gerhard’s involvement in this case. Obviously, that is totally inappropriate.

The defendant was able to visit with the child in early July of 1998. On July 2, 1998, the defendant arrived at the mother’s home, unannounced and early from visitation. The mother was not there, so the defendant proceeded to the maternal grandparents’ home. He delivered the child to that home under circumstances that cause us concern. The defendant did not take the appropriate precautions to make sure that there was someone present to receive Ryan. At the very least, additional safeguards should have been taken.

The defendant clearly has difficulty in controlling his temper and this difficulty manifests itself many times in the presence of Ryan.

We have grave concerns about the consistency of visitation and we have grave concerns about the way that the defendant conducts himself when visitation actually takes place. Accordingly, the best interests of the child require that we alter the visitation which was permitted with the agreed order of August 23, 1996. As specified in the order that we now enter, the defendant must demonstrate his commitment to visiting the child by doing that on a regular basis and our order permits that. Additionally, the defendant must demonstrate his commitment to conducting himself appropriately during the course of these visitations. While it is with great reluctance that we order supervised visitation, it is necessary so that we have an independent third party monitoring the visits to make sure that misconduct does not take place and to make a record of what occurs, in the event that reference to a record is necessary.

Certainly our desire is to establish a meaningful, open and unsupervised relationship of the father with his son. We foresee that happening only after the defendant demonstrates good faith efforts on his part to remove the objections to the way he presently conducts his visitation which we have enumerated herein.

While the September 22 hearing was detailed, we recognize that it was focused on the subject of contempt and sanctions. Accordingly, if the father believes that we have not properly assessed his motivation and conduct during visitation, we hereby authorize the father to immediately request a full hearing before the undersigned, at which time the focus will not be contempt, but the issue of visitation and all issues related thereto.

While the facts at the September 22 hearing developed concerns about the conduct of visitation which we did not know in June when we entered the June 16 order allowing continued, unsupervised visitation, that does not alter the untoward conduct of Mr. Karoly in subverting our order. The visitation problems are not a defense to the motion for sanctions that was brought.

ORDER

Now, November 16, 1998, following a hearing conducted on September 22, 1998, on defendant’s petition for contempt and sanctions and on various other oral motions made at the hearing, and for the reasons set forth in the accompanying opinion, it is hereby ordered as follows:

(1) The petition for contempt and sanctions against plaintiff, Jane Tercha, is dismissed in that she has not willfully violated prior orders of court.

(2) The petition for contempt against John P. Karoly Jr., Esquire, counsel for plaintiff, is dismissed in that he was not a subject of prior court orders in this case.

(3) The petition for sanctions against John P. Karoly Jr., Esquire, stated in the petition filed June 24, 1998, and verbally at hearing, is granted in that the conduct of Attorney Karoly regarding the events of June 19 and June 20, 1998, was arbitrary, unauthorized and vexatious, as a result of which defendant and counsel were made to unnecessarily incur expense and time, the defendant was denied court-ordered visitation, and the actions of Attorney Karoly subverted or had the tendency to subvert our order of June 16,1998. In this regard, John P. Karoly Jr., Esquire, is ordered to pay $500 in counsel fees and to reimburse the defendant for unnecessary travel to and from his home in the amount of $124.80 (390 miles at $.32 per mile). All amounts are due from Attorney Karoly within 30 days of this order and are to be paid to counsel for defendant.

(4) All oral motions made at the hearing of September 22,1998 for contempt or sanctions against defendant or his counsel are denied.

(5) Based upon the improper conduct of the defendant, by act and omission as demonstrated during the hearing of September 22,1998, the court orders that the unsupervised visitation of the defendant with the parties’ child, Ryan Lozoskie, which was ordered on April 23,1996, is hereby suspended. The defendant is granted only supervised visitation with the child, one hour per week, under the following conditions:

(A) Supervision shall be by Pinebrook Services for Children & Youth, 1033 Sumner Avenue, Whitehall, Pennsylvania 18034 (telephone number: 610-432-3919);

(B) The defendant may immediately institute these supervised visits at the office of Pinebrook Services by making arrangements directly with Pinebrook Services as to the time and date for such visit. Upon securing a time and date, the defendant shall send the plaintiff a letter advising as to the time, date and place of the supervised visitation and such notification shall be provided to the plaintiff at least one week in advance of the scheduled visitation. The visitation shall not be scheduled during the child’s school hours. The plaintiff must make the child available for such visitation and the provision of one week of notice to her provides sufficient time for that purpose;

(C) If the Pinebrook Services supervisor believes that inappropriate conduct is taking place by the defendant at any time during the course of the visitation, the Pinebrook Services employee has the right to terminate that visitation;

(D) During the course of all visitations, the defendant may not do the following: denigrate the plaintiff or any of her family members, discuss any custody issues, denigrate anyone connected with the custody case, or use foul or inappropriate language;

(E) The costs of the visitation shall be borne by the defendant.

At the point when the defendant believes he is in a position to demonstrate to the court his good faith in visiting the parties’ child on a regular basis and to act appropriately during visitation, the defendant may petition the court for a hearing to readdress visitation issues, including increasing the time of visitation and making the visits unsupervised.

      . The most direct route from Alexandria, Virginia, home of the father, to Allentown, Pennsylvania, home of the child, is 195 miles one way.


author: SCHMEHL, P.W., J.,

text:
    Orlando v. Orlando
    C.P. of Berks County,
    no. 97-6873.

      Terry R. Fetterman, for plaintiff.

      David G. Campbell, for defendant.

      November 9, 1998
   SCHMEHL, P.W., J.,

This matter is before the court on Ms. Orlando’s exceptions to the report and recommendation of the child custody hearing officer. Ms. Orlando, Mother, and Mr. Orlando, Father, are the parents of two minor children, David, age 8, and Aidra, age 6. Mother and Father separated on or about June 6,1997 when Father was excluded from the marital residence by a protection from abuse order obtained by Mother. Mother had physical custody of the children until approximately August 9, 1997 when she attempted to commit suicide. Since that time, Father has had primary physical custody of the children. For the reasons set forth herein, primary physical custody of the parties’ children shall remain with Father.

The paramount concern in a child custody proceeding is what is in the best interests of the child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of the child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995). The removal of a young child from an established home with one parent is a factor which should be considered in resolving a custody issue because it bears upon a child’s emotional well-being. Commonwealth ex rel. Jordan v. Jordan, 302 Pa. Super. (1982). 421, 425, 448 A.2d 1113, 1115

The character and habits of individuals with whom a child has daily in-home contact bear upon whether proximity to these persons is in the child’s best interests. Andrews v. Andrews, 411 Pa. Super. 286, 298, 601 A.2d 352, 357 (1991), affirmed, 533 Pa. 354, 625 A.2d 613 (1993). It is in the child’s interests to avoid situations which might prove harmful, whether physically, mentally or emotionally. See Bucci v. Bucci, 351 Pa. Super. 457, 460, 506 A.2d 438, 439 (1986). Although the primary concern in custody matters lies not with the past but with the present and future, past conduct is relevant to the extent that it will produce an ongoing negative effect on the child’s welfare. Commonwealth ex rel. Gorto v. Gorto, 298 Pa. Super. 509, 514, 444 A.2d 1299, 1301 (1982).

In addition to applying the foregoing law to the facts of a case, the court is obligated to consider the testimony of expert witnesses. Rinehimer v. Rinehimer, 336 Pa. Super. 446, 453, 485 A.2d 1166, 1169 (1984). Furthermore, although the court is not bound to accept the testimony of an expert witness, it cannot disregard uncontra-dicted expert testimony. Murphey v. Hatala, 350 Pa. Super. 433, 447, 504 A.2d 917, 924 (1986), appeal denied, 516 Pa. 634, 533 A.2d 93 (1987).

This has been one of the more venom-saturated custody hearings this court has heard, but, if there was one underlying consistency, it was Mother’s inability to accept any responsibility for the situation and her readily consistent ability to blame others for the entire situation. It is, in fact, alarmingly consistent with the remarks made by Peter Thomas Ph.D. about her paranoia. This and other psychiatric conditions were alluded to by Dr. Thomas, both based upon his own evaluation and based upon his comprehensive review of notes received from the family doctor and psychiatrist who had been working with Mother.

Mother would have the court believe that there is a massive conspiracy of police departments out to get her. She would have the court believe that everyone in Father’s family is seeking her destruction as a parent by almost any means possible. Mother spent a fair amount of time on the stand answering questions with questions of her own, even after admonition by the court not to do so. When the issue addressed in questioning was painful to her, or, in her view, the answer would have been embarrassing or incriminating, she dodged by saying that it was not the business of the questioner. In short, there is nothing that dissuades the court from Dr. Thomas’ comprehensive and well-reasoned conclusion that Father should have principal custody of these children. This is not to say that Father does not have some deficits. Clearly he does. But in terms of the best interests and welfare of the children, they pale in comparison to the markedly serious and potentially child-damaging deficits which Mother has.

There was an extensive list of drugs which Mother has been on, some presently. Mother was addicted to and abused some of these drags, and to the knowledge of the court, she may still be abusing drags since there was no testimony from her or from anyone else that she is now drag-free or substantially so. The testimony of her current therapist, Susan Freeman, who holds a master’s in counseling psychology from Kutztown University, suggested that her role was more that of a confidante than as someone either able or willing to deal with the deep-seated and, in the view of Dr. Thomas, incurable psychiatric and personality deficits extant in Mother. His view is that there are some parts of her personality which are ingrained in her, so to speak, based upon some rather damaging things which happened to her as a child and young adult. The best that can be hoped for, in Dr. Thomas’ view, is that she can learn to cope with these personality issues with appropriate therapy and perhaps medicines. Dr. Thomas believes that Mother can certainly deal, to some extent, with her problems, with therapy, but he, of course, would have had to carefully review what was being done, by whom, and for what period of time and, specifically, what areas of her deficit were being addressed before he would be willing to pass on the success of any such modality.

Mother’s life seems to be one of mild chaos. The house is barely taken care of. Police officers who have been at the house report that it is unkempt at best. There may or may not be appropriate heat therein. Mother admitted she does not have running hot water, and either goes to the neighbor to bathe or heats water on the stove to get hot water. As described above, the chaos in Mother’s life goes beyond her living conditions. She has attempted twice to take her life. It would have been nice to hear from her that she carefully and precisely limits her intake of prescription drugs and, then, only under the careful and vigorous scrutiny of a medical doctor. She argues that she uses prescription injections to control migraine headaches. The court is aware of these injections, and indeed, they seem an appropriate way to deal with these most miserable of headaches, but there was not a clue given as to what other drugs she may still be on, for what conditions, and in what amounts. Her doctor could have offered incredibly relevant testimony as to how he or she is monitoring (or not monitoring) her drug ingestion. Nothing was offered. In short, in her view, at least insofar as the almost total absence of testimony in this area would suggest, there is no drug issue.

Dr. Thomas, on questioning by the court, indicated that he was not overly concerned about the safety of these children in the custody of their mother for certain periods of time, but he would certainly be more comfortable knowing that she was in a regular and appropriate counseling situation to monitor how she was dealing with her various problems.

Father presents as a passive individual who, nonetheless, the court believes, to be a caring and nurturing father who intends to grow in his capacities to appropriately rear his children. He has attempted to stabilize the lives of his children in the face of some of the aforementioned chaos and has, in the view of the court, succeeded reasonably well. The children are doing very well in school.

Because this court removed him from the marital home, Father has had to find housing where he could — first, with his mother and father and, currently, with his sister. The circumstances of their housing are not ideal but are certainly better than adequate. Father has the support of his parents and other family members to assist him with his parenting responsibilities. He has effectively used that assistance and, nonetheless, does not unreasonably delegate his responsibilities.

As suggested by the court at the beginning of these remarks, no one seems to get along with anyone involved in this situation. Mother, of course, believes that everyone is out to prevent her from being a mother to these children. Father’s parents have nothing positive at all to say about their daughter-in-law in these proceedings. Father, while acknowledging the first few years of the marriage to be reasonably happy and productive, has currently nothing good to say about his estranged wife. They all seem to live in a fairytale world — a world where they do not comprehend the damage that their vitriol spreads upon the psyche of these children.

The over-arching, threatening penumbra of this situation is Mother’s multiple problems. There was not a clue as to whether or not she has followed the advice of health care professionals in dealing with her psychiatric issues, clinical depression issues, and misuse of prescription drug issues in any cohesive or coordinated and consistent fashion. She did nothing in court to dissuade this writer that she was indeed paranoid. The court attaches no stigma to psychiatric or psychological concerns — certainly in the lives of most human beings there are times when they ought to seek such professional counseling. There was no hint in her testimony, however, either that she had any of these problems or that she was addressing them in an appropriate fashion as delineated above — that is, a cohesive, coordinated and consistent fashion.

The court cannot operate in a vacuum with regard to the decision affecting the lives of two young people. It was Mother’s positive obligation and responsibility to make her own case for her mental health and for her effective and constant control of her drug usage and for other issues which Dr. Thomas pointed out as essential for her to deal with.

It must be mentioned that Dr. Thomas enjoys a reputation as one of the finest custody evaluators operating in Berks County and, in the view of this court, he would hold such high standing in any jurisdiction. He takes his work very seriously. He is very thorough and if he is not prepared to take a strong position, he advises the court and supports his uncertainty with the work and research that he has done. In this case, the choice is clear to him. He strongly believes that the children should be with Father and he asserts, even with vigorous cross-examination, that there is little to suggest that, even with intensive therapy for Mother, his opinion would change. There is never a case where there isn’t some hope, but the court believes it is Dr. Thomas’ impression that if Mother would have acknowledged all of these deficits and addressed them appropriately, his position may have mellowed. With only the therapy she is receiving with Ms. Freeman, she has fallen far short of what is necessary to satisfy this court that the current situation ought to change. Ms. Freeman, in addition, has seen none of the other players in this situation and can comment only upon the reasonably regular attendance Mother has had with her.

In the opinion of the court, it is in the best interests of the children for Father to maintain primary physical custody. The physical environment of Father’s residence is cleaner, safer, and overall more suitable for children than Mother’s. Also, the intellectual and emotional environment is more stable at Father’s home. Father has the children in an established routine, whereas Mother’s schedule is erratic and inconsistent. Given these circumstances and Mother’s inclination to allow her emotions to overwhelm her and her inability to remain level-headed, the court cannot find that it is in the best interests of the children for them to spend more time with Mother.

For the above reasons, the court enters the following order:

ORDER

And now, November 9,1998, it is hereby ordered and decreed that custody of the parties’ minor children, Aidra and David, shall be as follows:

(1) The parties shall have joint legal custody of the children.

(2) Father shall have primary physical custody of the children.

(3) Mother shall have partial physical custody of the children as follows:

(a) On Tuesdays and Wednesdays, Mother shall pick the children up at school upon the conclusion of the school day and shall transfer custody back to Father at 8 p.m. at the McDonald’s on Route 422 in Sinking Spring. On non-school days, Mother shall pick up the children at 3:30 p.m. at the location of the children’s caregiver and shall transfer custody back to Father at 8 p.m. In keeping with the protection from abuse orders entered on September 9, 1998 to no. 97-4091, there shall be no unnecessary verbal exchanges between the parties during the custody transfer at McDonald’s. Paternal grandfather shall not meddle in any fashion except to the extent required by his law enforcement duties.

(b) On alternating Fridays, Mother shall pick up the children at school upon the conclusion of the school day, and she shall have custody until she returns them to school on the following Monday morning. On non-school days, Mother shall pick up the children at 3:30 p.m. from the caregiver, and she shall have custody until she returns them the following Monday morning at 8 a.m. to the person(s) designated to care for the children on non-school days.

(c) Given the time of the year and the question of whether Mother has adequate heat and hot water, the children shall not remain in Mother’s custody overnight. On the weekends when Mother has custody, the children shall be transferred into the custody of Father each night at 8 p.m. at the McDonald’s on Route 422 in Sinking Spring, and Mother shall pick up the children at the same location the next morning, with the exception of Monday morning, at 8 a.m. Mother may resume uninterrupted weekend custody when she demonstrates to the court that she has adequate and safe heat and hot water in her home.

(4) Mother shall have custody of the minor children on Mother’s Day and Father shall have custody of the minor children on Father’s Day each year from 9 a.m. to 8 p.m.

(5) The parties shall alternate the following named holidays as follows: in the even numbered years, Father shall have custody from 9 a.m. to 8 p.m. on New Year’s Day, Memorial Day and Labor Day, and Mother shall have custody from 9 a.m. to 8 p.m. on Easter, Independence Day and Thanksgiving. The holidays shall reverse in the odd numbered years.

(6) The parties shall alternate the following time periods regarding Christmas: on odd numbered years, Mother shall have custody of the children from December 24 at 9 a.m. to December 25 at 12 p.m., then Father shall have custody of the children on December 25 at 12 p.m. to December 26 at 8 p.m., with the parties to reverse schedules on even numbered years.

(7) Each party shall have custody of the children for two non-consecutive weeks of vacation in each calendar year upon advance written notice of at least 30 days to the other party. If a conflict over vacation arises, the party giving notice first shall have preference.

(8) The holiday and vacation schedules shall take precedence over the regular custody and partial custody schedule.

(9) In addition to any provisions which may be contained herein regarding custody and visitation, Father and Mother shall have the following rights with respect to the children: reasonable telephone calling privileges, access to report cards and other relevant information concerning the progress of the children at school, approval of extraordinary medical and/or dental treatment except in the case of any emergency provided such approval shall not be unreasonably withheld, approval of summer camp and schools provided that such approval shall not be unreasonably withheld.

(10) In the event of any serious illness of the child(ren) at any time, any party then having custody of the said child(ren) shall immediately communicate with the other party by telephone or any other means, informing the other party of the nature of the illness. During such illness, each party shall have the right to visit the child(ren) as often as she or he desires consistent with the proper medical care of said children). The word “illness,” as used herein, shall mean any disability which confines the child(ren) to bed under the direction of a licensed physician for a period in excess of 48 hours.

(11) Each party shall immediately notify the other party before changing residence and provide the other party with her/his new address.

(12) Neither party will insult, disparage or downgrade the other party in the presence or hearing of the children, nor shall they unduly influence the children against the other party.

(13) Certain rules of conduct generally applicable to custody matters are set forth in paragraphs (a) through (h), below, and are binding on all parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for amendment of the custody order. If these general rules conflict with the specific requirements of the custody order, the order shall prevail.

(a) No party will undertake nor permit in his or her presence the poisoning of the minor children’s minds against any other party by conversation which explicitly or inferentially derides, ridicules, condemns, or in any manner derogates any other party.

(b) The parties shall not conduct arguments or heated conversations when they are together in the presence or hearing of their children.

(c) No party will question the children as to the personal lives of the other party except as is necessary to insure the personal safety of the children. In other words, the child(ren) will not be used as a spy on the other party. It is harmful to a child to be put in the role of a “spy.”

(d) No party will make extravagant promises to the minor children for the purposes of ingratiating himself or herself to the minor child at the expense of the other party. Any reasonable promise to the children should be made with the full expectation of carrying it out.

(e) The parties should at all times consider the children’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying desperately to cope with the fact of his or her parents’ separation, and needs help in loving both parties, rather than interference or censure.

(f) The parties should remember that they cannot teach their children proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the party who maintains a double standard will lose the respect of his or her child.

(g) Periods of custody shall be subject to the following rules:

(1) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the children) to unnecessary apprehension and failure of expectations.

(2) The party having custody of the child(ren) should prepare them both physically and mentally for the visitation with the other party and have them available at the time and place upon which the parties agree.

(3) If either party or the children) has plans which conflict with a scheduled visit and wish to adjust such visitation, the parties should make arrangements acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the child(ren).

(4) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

(h) During the time that the child(ren) is living with a party, that party has the responsibility of imposing and enforcing the rules for day-to-day living. However, unless otherwise ordered, both parents should consult with one another on the major decisions affecting the child’s life, such as education, religious training, medical treatment, and so forth.

      . Allegedly, this was not Mother’s only attempt at suicide.

      . Primary physical custody of the children was confirmed in Father by a temporary custody order entered by agreement on September 2, 1997, and another on September 9, 1998.

      . The list of drags includes Percocet, Imitrex, Xanex, Phenergen, Demerol, Trazadone, Benadryl, Haldol, Toradol, Depakote, Luvox, Vistearil and Serzone. She also told Dr. Thomas that in 1995 she used cocaine.

      . Dr. Thomas’ view was that Mother ought to be on one or more medicines to control her psychiatric problems, so it is not likely, therefore, that she would ever be drug-free.