author: LASH, J,

text:
    Angstadt v. Ament

      Sharon L. Gray, for plaintiff.

      Kurt B. Geishauser, for defendant.
    February 5, 2010
   LASH, J,

The matter before this court is the custody complaint of plaintiff, Erica Angstadt (Mother), and the petition of defendant, Stephen James Ament (Father), for permission to relocate with the parties’ minor children. A child custody trial was held on February 2, 2010. We enter the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Erica Angstadt (Mother), is an adult individual who currently resides at 1107 Showers Lane, Muhlenberg Township, Berks County, Pennsylvania 19605.

(2) Defendant, Stephen James Ament (Father), is an adult individual who currently resides at 125 Sumner Avenue, Forest Hills, Allegheny County, Pennsylvania.

(3) The parties are the natural parents of AJA, bom October 20, 2000, and AMA, born October 15, 2001, (minor children).

(4) The parties are divorced, a divorce decree being entered on November 5, 2004. They initially separated in January 2003. At that time, Mother moved in with the maternal grandmother in her house in Leesport, Berks County, Pennsylvania.

(5) From January 2003 to June 2003, Mother and the minor children resided with the maternal grandmother.

(6) Sometime in April of2003, after receiving a report of alleged abuse of the minor children, the Berks County Children & Youth Services (CYS) obtained a temporary placement of the minor children with the maternal grandmother, pending investigation. Mother was limited to supervised visits.

(7) In June 2003, Mother moved in with James Kaas, who became her paramour and remains so to this day. At that time, they resided at 209 Verdure Lane, Douglassville, Berks County, Pennsylvania. They remained in that home until sometime in 2006 or early 2007. However, Mother and her paramour separated approximately three times, resulting in Mother moving in temporarily with her friend, Dianna, or back in with the maternal grandmother.

(8) Meanwhile, the minor children continued to reside with the maternal grandmother until August 2, 2006, when the minor children were placed by CYS with Father. Mother’s visits were supervised throughout this time.

(9) Sometime in late 2006 or early 2007, Mother and her paramour moved to Union Street in Birdsboro and resided there until they moved to 27 South 23rd Street, Mount Penn, Berks County, Pennsylvania, where they leased a house for approximately six months.

(10) On December 29,2009, Mother and James Kaas moved to their current residence.

(11) From April 2003 through July 18,2007, the minor children were dependent, subject to the custody of CYS, and as stated, resided with the maternal grandmother from April 2003 to August 2, 2006, when the minor children were placed with Father. On July 18, 2007, the dependency order was terminated. The minor children were ordered to remain in Father’s custody until further order, with any visitation with Mother to continue to be supervised.

(12) Despite the terms of the order, the parties began an informal arrangement whereby Father had primary custody, with Mother to have unsupervised visits on alternate weekends and two evenings per week.

(13) The informal arrangement continued until July of 2008, when CYS reopened the case, after receiving a report from a doctor concerning a bruise on AJA’s rear end. The bruise was caused by Father spanking AJA after AJA got in trouble on the school bus. CYS permitted custody to remain with Father. At Father’s insistence, the parties returned to the terms of the existing custody order, meaning Mother was again relegated to supervised visits.

(14) Mother’s visits were supervised, at times by the maternal grandmother, at times by Father, and generally through Signature Services, who conducted two-hour visits on a weekly basis.

(15) Mother filed the within petition on December 18, 2008, requesting primary custody of the minor children.

(16) On or about August 12, 2009, Mother filed a petition for emergency relief and custody, requesting a cessation of the requirement that her visits be supervised, stating that her funded supervised visitation with an agency, Signature Services, ended on August 1, 2009, and because Mother’s maternal grandmother was diagnosed with Stage 4 cancer, and Father was refusing to allow the minor children access to her without his presence. Father responded by filing a motion to dismiss Mother’s request for emergency relief.

(17) The petition was resolved through the parties reaching a stipulation, which was entered as an order of court on November 9,2009, setting forth that the parties would share legal custody with Father to have primary physical custody and Mother to have partial physical custody, which would be unsupervised, every other weekend and every other Wednesday overnight into Thursday a.m. The order also provided a holiday schedule for Thanksgiving and Christmas 2009.

(18) At all pertinent times from the separation until October 2009, Father resided at 1101 Mount Laurel Avenue, Temple, Berks County, Pennsylvania 19560, with his wife, Samantha. The couple have a son, Brennan, bom October 5,2006. As stated, the minor children resided with Father since August 2, 2006.

(19) During the pendency of the petition for emergency relief, Father filed a petition for relocation, requesting that he be permitted to relocate to Forest Hills, Allegheny County, Pennsylvania, near Pittsburgh. Father alleged that the relocation was necessary because he was unable to find employment locally in his occupation as a welder, causing financial hardship, but was able to secure a job as a welder in the Forest Hills, Pennsylvania area.

(20) Father and his spouse have now relocated. Pending disposition of the custody action, the minor children have relocated to the home of the maternal grandmother and continue to attend school in the Muhlenberg School District.

(21) Mother currently resides with her paramour, James Kaas. Mr. Kaas has two children, Tristan, age 13, and Justin, age 10. Mr. Kaas has partial custody rights on alternate weekends. Also residing with the couple is Mr. Kaas’ 19-year-old niece, who has special needs. The parties reside in a three-bedroom home, with the couple residing in one bedroom, the subject minor children in a second bedroom, Mr. Kaas’ children in the third bedroom, and Mr. Kaas’ niece in the recreational room area.

(22) Mother’s living accommodations appear sufficient for the care of the minor children.

(23) Father’s current residence is in a quiet neighborhood, with the school the minor children would attend approximately a mile away and with sufficient recreational opportunities. Father’s home appears to be sufficient for the care of the minor children.

(24) Mother currently resides in the Muhlenberg School District, and Father in the Woodland Hills School District.

(25) By agreement of the parties, this court ordered an independent psychological evaluation to be conducted by a licensed psychologist, Alison L. Hill Ph.D., of Berks Counseling Associates P.C. Dr. Hill conducted several interviews with the parties and the minor children and Mother’s husband, James Kaas, on July 22, 29, August 12, 19, September 14, October 21, and November 10, 2009. She also administered the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), the Parent Awareness Skills Survey (PASS), and obtained information from the parties through a parent questionnaire, as well as obtained child abuse and criminal clearance certifications. The report was completed at the end of 2009.

(26) The parties currently reside approximately four hours apart.

(27) Mother is employed as a certified nurse assistant, working at Health Calls for four to six hours every other weekend, where she attends to patients at their homes, and at St. Joseph’s Hospital-Berks Vascular, Monday through Friday. On Monday, Tuesday, and Thursday, she works from 9 a.m. to 5 p.m., on Wednesday from 1 p.m. to 5 p.m., and on Friday from 9 a.m. to 12 noon.

(28) Father is employed as a welder/fitter through a union-based agency known as Tradesmen International, who obtain jobs for him as a welder/fitter. He is available for employment for 40 hours per week, with the hours contingent upon what is required by the employer. His jobs involve prefabrication of steel.

II. DISCUSSION

The parties are each seeking primary physical custody. In making disposition, this court considered the testimony of the parties, Mother’s paramour, James Kaas, Father’s wife, Samantha Ament, CYS supervisor Melisa Clarke, Signature Services caseworker Mary Jimenez, Signature Services supervisor and former caseworker, Patrice Gangemi, the testimony and report of Alison L. Hill Ph.D. and the exhibits submitted by the parties. By agreement, the parties did not present the minor children for an in camera conference.

Mother presented first. She states she would provide a strong household for the minor children. She and her paramour have a long-standing, stable relationship, and have now chosen a residence which would meet the minor children’s needs. The minor children would be able to remain in the Muhlenberg School District. She states that her house is orderly, requiring rules, without chaos, in contrast to Father’s.

Mother admits that for a time, she presented issues as a parent. She states that she is more stable and mature now. She acknowledges that she failed to cooperate with CYS during their involvement and states she should have done so.

Regarding Father, she believes that his house is unstable. When the minor children arrive at her house, they are often dirty and require a bath. One of her children, AMA, has eczema, which Mother contends Father fails to treat properly. She also argues that the other child, AJA, has impetigo, which Father refuses to acknowledge.

Mother states that Father has withheld the minor children from her. For a time, she had unsupervised visits, but this was withdrawn by Father after he was reported to CYS for excessively spanking the elder child. He refuses to acknowledge her or her family and does not permit them to become involved in the minor children’s affairs.

Mother objects to Father’s request to relocate. Relocation means that the minor children will live approximately four hours apart. If Father had remained in Muhlenberg School District, he and Mother would have residences very close together. Mother believes that Father’s reason for the relocation, that he could not obtain a position as a welder/fitter in Berks County or nearby, is contrived. She urges that he should be able to obtain suitable employment in the labor field without having to relocate as far away as the Pittsburgh area. She questions whether he is even qualified as a welder. She notes his unstable employment history, having left several jobs in the last few years.

Father presents a very different picture. Fie sets forth that the minor children’s lives have improved substantially since he has obtained primary custody. Their behavior, both at home and at school, has improved. For example, AMA can sometimes be difficult, acting out on occasion, but that problem has been alleviated.

Father sets forth that his household is a stable one. Fie has been married for four and one-half years to his wife. They have a child together who gets along well with the subject minor children. Father has been active in the minor children’s school lives, as well as recreation. The minor children enjoy sports, including baseball, football, and wrestling, and Father has coached them while he was a resident of Berks County, and intends to offer his services as a coach in his new location. Fie helps the minor children with their homework and believes his discipline is appropriate. Fie acknowledges that he spanked AJA on one occasion, and was shocked when he saw the mark left on his rear end. Accordingly, he no longer uses corporal punishment.

Father has received a good report from CYS and Signature Services. All believe the minor children’s behavior and demeanor have improved since Father has assumed custody. Father has participated in the services required by the agencies. Melisa Clarke of CYS noted that the minor children were doing well in school, were enjoying sports, and had no behavior issues while with Father.

Father points to Mother’s poor track record as a parent and on personal matters. Except for the one-year period after Father assumed custody and until recently, she was limited to supervised visits of the minor children, at the recommendation of CYS. She had difficulties with CYS and refused to cooperate with them. Mother was cited by CYS as having inappropriate parenting, marital conflicts and mental health issues. She also had difficulty with Signature Services. Signature Services mentioned Mother’s propensity to involve the minor children in inappropriate discussions regarding the court proceedings, her issues with Father, and so forth. After cautioned not to do this, Mother insisted on doing so stating she refuses to “lie to her kids.”

CYS documented several statements which they allege Mother made to them, which she now denies. This includes a statement that she intended to seek termination of her parental rights through court proceedings. Father also challenges Mother’s credibility on her health issues. Mother has many complaints, including suffering meningitis, Wolff-Parkinson’s white syndrome, post-traumatic stress disorder, panic attacks and depression. This problem extends to Mother’s insistence that AJA has impetigo, which was diagnosed by Mother’s doctor but refuted by Father’s.

Father believes that Mother is unstable. He cites to her frequent relocations. Additionally, she separated from her paramour three times.

Father believes the move to the Pittsburgh area will be very beneficial. In addition to having steady employment, the cost of living is lower. The neighborhood is quiet and friendly. Everything is close by, including a YMCA which is only a couple of miles down the road.

While Father insists on primary custody, he is willing to make the drive once a month to enable Mother to see the minor child, and agrees to Mother having extended time during the summer months.

Dr. Hill provided an extensive psychological evaluation. She recommended that Father retain primary physical custody of the minor children. The recommendation took into account the move to the Pittsburgh area. She cites Father’s stable household and correspondingly Mother’s overall lack of stability. Dr. Hill believes that Mother would experience financial and emotional difficulty in meeting the needs of the minor children if she was required to care for them on a full-time basis. Dr. Hill believes that Mother should have partial custody, unsupervised on alternate weekends, and additional time during school vacations, holidays, and in the summer. Again, this takes into account Father’s move to the Pittsburgh area and the inconvenience of the long drive for the parties and the minor children.

In making this determination, Dr. Hill found Father to be extremely involved in the minor children’s lives. She references his contact with the principal at school regarding issues which arise there, his helping to coach AJA’s sports teams, his willingness to seek counseling for the minor children, and his overall caretaking. Dr. Hill finds Father’s household to be very stable and intact. She believes Father’s parenting skills are good, with appropriate techniques for disciplining the minor children. He establishes and maintains structure and consistency for them, providing communication of his expectations.

Mother, on the other hand, according to Dr. Hill, has been inconsistent. She is not able to provide extensive background information on the minor children. She has been uncooperative with CYS. Her instability is also demonstrated with her current fiance, as shown through their separations. There has also been domestic violence issues between them, even to the extent where police have been called.

In her reporting to Dr. Hill, Mother contradicted herself, as well as documented information. For example, Mother denied ever striking the boys, but later admitted that she had smacked AMA in the face, cutting his lip.

Dr. Hill states that Mother’s basic parenting skills are acceptable, noting her love for the minor children. Dr. Hill is concerned, however, with Mother’s propensity to make statements to the minor children “for the purpose of upsetting or scaring them.” which only serves to upset the minor children and create insecurity and a sense of instability. Dr. Hill is also concerned that Mother and the maternal grandmother have reportedly made statements to the minor children that they won’t see Mother again if they do move to the Pittsburgh area with Father.

In her observation of the minor children, Dr. Hill noted a very strong bond with Father, interacting on a positive and relaxed level. AJA also displayed a bond with Mother and had some positive interaction. Regarding AMA, while Mother has a positive relationship with AMA, the attachment is not as strong as with Father.

The paramount concern in a child custody proceeding is 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 a 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).

We also recognize that due to Father’s relocation, this court must, in determining the best interests of the minor children, include the analysis established in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). In Gruber, the Superior Court set forth the standard to be utilized when the custodial party moves to a new residence a substantial distance from the other party. In such cases, the relocating party has the burden of production to show:

“(1) The potential advantages of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a monetary (sic) whim on the part of the custodial parent;
“(2) The integrity of the motives of both the custodial and noncustodial parent in either seeking the move or seeking to prevent it; and
“(3) The availability of realistic, substitute visitation arrangements which will foster adequately an ongoing relationship between the child and the noncustodial parent.

White v. White, supra, 437 Pa. Super. [446] at 451, 650 A.2d [110] at 113 [1994], quoting Gruber v. Gruber, supra, 400 Pa. Super. at 184-85, 583 A.2d at 439. The factors to be considered are refinements of the basic standard which remains the best interest of the child. Lee v. Fontine, 406 Pa. Super. 487, 594 A.2d 724 (1991); see also, Pa. Family Law Prac. and Proc. [(3d ed.), §28-15, at 324], supra. Moreover, the fact that considerable distance will increase the cost and logistical problems of maintaining contact between the child and the noncustodial parent does not necessarily preclude relocation when other factors militate in favor of it. Id." Gancas v. Schultz, 453 Pa. Super. 324, 331, 683 A.2d 1207, 1210 (1996).

Mother’s issue with the relocation is well taken. We acknowledge that jobs are generally hard to come by in the current economy. Further, Father’s status as an employed worker is certainly preferable to receiving unemployment compensation. However, Father’s relocation appeared to be somewhat impulsive, for he initially obtained a lease for his current residence, prior to having a job secured. Father could have made more of an effort to obtain a suitable job in the immediate vicinity. By moving to Pittsburgh, he created a separation, making it difficult for the minor children to have access to both parents. We also note Father’s sporadic employment history, changing jobs frequently, establishing that there is often dissatisfaction between Father and his current employer. The same could take place in Pittsburgh.

While we are not impressed with Father’s reasons for the relocation, we observe that there is nevertheless much more to consider. The Gruber analysis must be considered in context, with the overriding concern being the best interests of the minor children. In Tripathi v. Tripathi, 787 A.2d 436, 441 (Pa. Super. 2001), the Pennsylvania Superior Court reiterated the important principle that in determining child custody cases, the best interest of the child is paramount, even when the presence of a relocation warrants review of the other factors enumerated in Gruber. The Superior Court states:

“The Gruber court took pains to assert that ‘achieving “the best interests of the child” remains the ultimate objective in resolving all child custody and related matters,’ but only emphasized ‘that the best interests of the child are more closely allied with the interests and quality of the custodial parent and cannot, therefore, be determined without reference to those interests.’ Id. [400 Pa. Super.] at 183, 583 A.2d [434] at 437-38.
“While we acknowledge the refinements posited in Gruber in relocation cases, they do not create a new standard and we hasten to stress the polestar of our analysis in this case, just as it was in Gruber and a legion of prior custody cases, remains the best interests of the child,....”

It is evident from this record that it is not in the minor children’s best interests to award primary custody to Mother. She has had only supervised visits for approximately five and one-half of the last seven years. This is totally inconsistent with responsible parenting. Secondly, her bond with the minor children is not strong, according to the psychologist. Third, she has a histoiy of creating conflict, as evidenced by her inappropriate statements to the minor children and her poor relationship with the various agencies. Her denials of statements she made to CYS, which were documented by CYS, and which, if made, call into question her capacity as a parent, are simply not credible. This court is not satisfied that Mother is currently capable of assuming the role of a full-time parent. On the other hand, Father’s track record has been established, both by the growth and behavioral improvement of the minor children, and the observations of the various agencies.

The Gruber analysis is an important concern in child custody matters, for it protects an involved parent from losing contact with a child due solely to the selfish or random decision of a custodial parent to relocate a substantial distance from the aggrieved parent. However, as noted by Tripathi, the Gruber analysis was never meant to supersede or supplant the best interest analysis. It cannot be used to provide a basis for establishing transfer of custody “by default.” This court’s only alternative here is to permit custody to remain with Father.

Since the fall of 2009, Father has had no objection to unsupervised visits. We agree that Mother is capable of performing her duties as a parent in a partial custody context. Accordingly, Mother will be granted the summer months, with the exception of a two-week vacation time for Father, and will also receive a weekend every six weeks during the school year. While Father stated that he would agree to a visit every four weeks during the school months, we must also take into account the length of the trip, which is onerous to a child who will be required to be in the car for eight hours over a two-day period. Six weeks is a better stretch of time. Mother will also be permitted time during the Christmas vacation and the spring break.

We enter the following order:

ORDER

And now, February 5, 2010, after trial held, custody of the parties’ minor children, AJA, bom October 20, 2000, and AMA, bom October 15,2001, (minor children) shall be as follows:

(1) The parties shall share legal custody.

(2) Defendant, Stephen James Ament (Father), shall have primary physical custody.

(3) Plaintiff, Erica Angstadt (Mother), shall have partial physical custody as follows:

(A) During the summer months, defined as commencing one week at the expiration of the school year until one week prior to the start of the next school year, with the exception of two weeks to be taken by Father for vacation purposes, Father’s weeks to be either consecutive or nonconsecutive at his discretion, providing Mother’s 30 days written notice of the dates and times for his vacation;

(B) Once every six weeks during the school year, commencing sometime Friday to sometime Sunday, contingent upon the parties’ transportation schedule. The parties shall share the transportation equally, either by meeting at a location equidistant from the parties’ respective homes, or through one party traveling the full distance between residences on Friday and the other traveling that distance on Sundays, to be agreed upon by the parties. If the parties cannot agree, then Mother shall pick up the minor children on Friday after they have finished school and Father shall pick up the minor children on Sunday at 5 p.m. after Mother has provided them with dinner;

(C) During the Christmas and spring breaks, with the Christmas vacation to be from December 26 to one day prior to the resumption of school, and on spring break from one day after the start of the school recess until one day prior to the resumption of school; and

(D) At such other times as the parties may agree.

(4) Mother may visit with the minor children for several hours on a weekend if she travels to Father’s location for that purpose, upon providing Father at least 14 days written notice of her intention. If Mother exercises this option, she shall not be permitted to remove the minor children from Allegheny County.

(5) One of Mother’s weekends shall be on Mother’s Day weekend.

(6) At any time, a party not having custody of the minor children may make reasonable telephone calls to the minor children. Further, this court recommends, but does not require, the parties purchase a computer with a webcam to enable the minor children to visit with the noncustodial parent through computer access.

(7) The attached appendix shall be made a part of the within order.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

(1) In addition to the foregoing rights, both parties shall also have the following rights with respect to the children:

(A) The right to reasonable telephone contact with the children when they are in the other parent’s custody.

(B) The right to be fully informed concerning the progress of the children in school and the children’s medical status, including the right to obtain the necessary information directly from the children’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the children and the opportunity to participate in those decisions.

(2) In the event of any serious illness of the children at any time, any party then having custody of the children shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and during such illness, each party shall have the right to visit the children as he or she desires consistent with the proper medical care of the children.

(3) Neither party shall alienate nor permit to attempt to alienate the children from the other party. While in the presence of the children, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the children should respect and love.

(4) Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take a trip with the children out of the jurisdiction of Berks County in excess of three days.

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

(6) The parties shall, 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 to desperately cope with the fact of his or her parents’ separation, and needs help in loving both parents, rather than interference or censure

(7) Neither party shall question the children as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the children. By this we mean that the children will not be used as spies on the other party. It is harmful to a child to be put in the role of spy.

(8) 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 parent who maintains a double standard will lose the respect of his or her child.

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the children to make choices and run the risk of parental displeasure. However, the children shall be consulted as to their schedules when appropriate.

(B) Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor children.

(C) 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.

(D) The party having custody of the children should prepare them both physically and mentally for the transfer of custody to the other party and have them available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment 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 children.

(F) 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.

(10) If either party feels the other party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.

      . He testified that he believed he had a job, but the prospective employer backed out because he did not act quickly enough to obtain the employment and because the prospective employer became aware of the current court proceedings.


source: Caselaw Access Project

license: Public Domain

text:
    Hine v. Wells

      Barbara H. Beringer, for plaintiffs.

      Thad M. Gelsinger, for defendants Wells.
    Defendant Thrasher did not participate.
    January 14, 2010
   LASH, J,

The matter before this court is the custody action filed by plaintiff, Patricia Hine. Trial was held on January 8, 2010. We enter the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Patricia Hine (Mother), is an adult individual who currently resides at 1111 Green Street, Second Floor, Reading, Berks County, Pennsylvania 19604.

(2) Defendants, Larry Wells and Stacey Wells, are adult individuals currently residing at 3 Summit Circle, Womelsdorf, Berks County, Pennsylvania 19567.

(3) The defendant, Quillen Thrasher (Father), is an adult individual whose last known address is 927 Mulberry Street, Reading, Berks County, Pennsylvania 19601.

(4) Mother and Father are the natural parents of a daughter, Jocelyn Hine, born September 12, 2005.

(5) Mother is also the parent of two other children, Nathanial DiGuardi, born September 10, 1999, and Jeremy Kiwak, bom June 12,2003. Nathanial resides with his paternal grandmother, pursuant to an order of this court entered June 2,2009. That order also provides that Mother has partial custody of Nathaniel on alternate weekends from Friday at 5 p.m. to Sunday at 5 p.m. and one evening per week. The opinion and order of this court entered June 2, 2009 is incorporated by reference into this opinion. Jeremy resides with his father. Jeremy’s father and mother have an informal agreement, permitting Mother to see Jeremy anytime she would like.

(6) The within custody matter is a dispute between Mother and the Wells for physical custody of the minor child. The Wells have had physical custody of the minor child since July 31, 2007, initially, as foster parents through dependency proceedings, then through court order on the basis of in loco parentis. The Wells are distantly related to Father, who is the uncle of the Wells’ grandson.

(7) Mother, Father, and the minor child resided together from the minor child’s birth until July 31, 2007.

(8) On July 31, 2007, the Berks County Children & Youth Services (CYS) filed an emergency petition, alleging Father was considered a risk to the safety of the minor child, as well as Mother’s other children.

(9)The petition stems from Father’s conviction in Berks County court of endangering the welfare of a child and simple assault. Father was alleged to have committed “shaken baby syndrome” against a third-party child.

(10) CYS was informed of Father’s conviction on July 30,2007. On that date, CYS proceeded to Mother’s home where they discovered that Father was residing with Mother and was present in the home and Mother was consuming alcohol while involved in the caretaking of her children. CYS then took custody of the children.

(11) On July 31, 2007, Mother’s children were removed from her home. The subject minor child was placed with the Wells as kinship foster parents. The Wells complied with all regulations and requirements necessary to obtain the status of foster parents.

(12) After the minor child and Mother’s other children were declared dependent, CYS made recommendations to Mother, requesting her cooperation for the purpose of eventually having her children returned to her. CYS specifically requested that Mother cooperate with parenting education, drug/alcohol evaluations and any treatment recommendations, random urinalysis, mental health evaluations, treatment recommendations, case work services, and visitation with the children.

(13) Mother obtained a psychiatric evaluation by the staff psychiatrist at Berks Counseling Center. She was diagnosed with ADHD and bipolar disorder. She presently takes Prozac, Doxepin and Gobopetin for these conditions.

(14) Mother has participated in four separate parenting education programs, including “Baby College” at Reading Area Community College.

(15) Mother complied with CYS casework services, including receiving supervised visits with the minor child at various agencies.

(16) Mother participated in the BCCYS/Berks Community Action Program Time Limited Family Reunification Program, including parenting education and casework services, with a goal of returning the minor child to her.

(17) Mother submitted to random urinalysis when requested and has never tested positive.

(18) Additionally, prior to the children being declared dependent, Mother had participated through Berks Counseling Center in Maternal Intervention and Supportive services. She continues to participate with these services.

(19)On August 20,2008, a dependency review hearing was held before the Honorable Scott D. Keller. This resulted in an order being entered, terminating the dependency of the minor child and awarding custody to the Wells.

(20) CYS had initially sought to have the minor child returned to Mother at the time of the review hearing and had filed a petition to that effect. However, CYS withdrew that petition after it determined that Mother was maintaining contact with Father.

(21) Following the hearing onAugust 20,2008, a CYS caseworker advised Mother that because the agency would no longer be involved in the minor child’s case, she would independently have to contact the Wells to make arrangements to see the minor child and should file a custody action if she wanted the minor child returned to her. Mother then filed the within action on November 12, 2008.

(22) From the time of the initial CYS hearing on July 31, 2007 until the present, Mother’s contact with the minor child has been limited. For the most part, her visits have been supervised, initially with CYS at the courthouse. She also had visits at the Wells’ house, then subsequently at the office of the minor child’s counselor, Jean Scrincosky, based on the Wells’ belief that the visits at the Wells’ home were confusing to the minor child. After a period of time, Ms. Scrincosky declined to provide additional access for these visits, resulting in the visits eventually being scheduled through Catholic Charities, a non-profit agency, who provided supervised visits at no cost to Mother. Additionally, for a period of time during Mother’s residence at a transitional housing unit, Mother was permitted unsupervised visits on weekends.

(23) Shortly after the dependency review hearing on August 20,2008, Mother began cohabiting with Father. This lasted for approximately two to three weeks, then Mother sought and obtained a protection from abuse order against Father. She has not had contact with Father since that time.

(24) Mother is currently unemployed and receives SSI benefits.

(25) Mother currently resides in the Reading School District.

(26) Defendant, Stacey Wells, is employed through Adecco Temp Services at the Berks County Prison in the Records Department, working full-time. Defendant, Larry wells, is unemployed but is attending school at Reading Area Community College. He is available to care for the minor child during the day.

(27) Defendant, Stacey Wells, has three other children, all adults, with the youngest, Dorothy Wells Millinger, also being the child of defendant, Larry Wells.

(28) The Wells reside in the Conrad Weiser School District.

II. DISCUSSION

In making disposition, this court considered the testimony of Mother, defendant, Stacey Wells, Charlene Parker of Berks Counseling Center, who supervised the transitional housing where Mother resided for a period of time, and Connie Malafarina, a therapist from Berks Counseling Center, as well as the exhibits of the parties.

At issue is primary physical custody. The paramount concern in a child custody proceeding is 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 a 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). (citations omitted)

That being said, we also recognize the Wells’ added burden as third parties. “[W]here the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, The parents have a “prima facie right to custody,” which will be forfeited only if “convincing reasons” appear that the child’s best interests will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the [biological] parents’ side.’” Jones v. Jones, 884 A.2d 915, 917 (Pa. Super. 2005), quoting In re Hernandez, 249 Pa. Super. 274, 376 A.2d 648, 654 (1977). (emphasis omitted)

We initially note that the Wells have provided a good home for the minor child. Prior to CYS taking custody of the minor child through the dependency proceedings, the Wells had no relationship with the minor child, nor had any interest in becoming foster parents. However, when called upon, they opened their home to a minor child in immediate need and safeguarded her welfare for the last two and one-half years. They continue to do so even after the court terminated the dependency, resulting in the loss of subsidy for the minor child’s maintenance. They are willing to continue to provide a home for the minor child, as long as the minor child needs one. However, they recognize that the minor child should reside with her mother, once Mother is able to sufficiently care for the minor child. This court truly appreciates everything the Wells have done for the minor child.

The children, including the minor child, were initially taken from Mother’s care for several reasons, the primary one being her relationship with Father. Secondarily, it is clear that Mother had limitations due to her abuse of alcohol and drugs and her mental health status.

We find that Mother has addressed these concerns. We find that Mother has had no contact with Father, nor any interest in contacting him. She has complied with the directives of CYS, steadfastly taking advantage of the programs recommended to her, and has continued to do so after CYS’ involvement ended. The process has been a long one for her, but she clearly wants to have her children back with her and has worked hard for this to happen. We also note that we awarded her partial custody of her child, Nathaniel, in other proceedings.

Of some concern here is the sporadic contact Mother has had with the minor child. Both sides blame the other for Mother’s lack of contact. In reality, many of the reasons are circumstantial. There has been a lack of communication. As a result, the Wells have not been privy to Mother’s progress. Mother lives approximately 30 minutes from the Wells’ household, and is without transportation. Several of the visits had to be rescheduled because of scheduling difficulties involving one side or the other, or the supervisor. There is also a degree of mistrust between Mother and the Wells. The Wells are not certain that Mother is now capable of properly caring for the minor child. In addition to the substance abuse and mental health issues, the Wells cite her transience, both in relationships and households. For her part, Mother is concerned that the Wells want to establish themselves as permanent parents of the minor child.

For reasons already set forth, we find that Mother is now able to care for the minor child. Additionally, her frequent moving was adequately explained. She spent time in transitional housing until she was able to move into her own apartment on North 12th Street in Reading. However, due to her landlord’s alleged failures, the house was substandard, being without heat for a period of time. After several complaints were lodged by Mother, she sought other housing and recently moved to her current address. We also are satisfied that the Wells have no improper motive here. They are simply caring for the minor child for as long as is necessary. They have no design on becoming the minor child’s parents, but would be happy to turn her over to Mother once they are satisfied she can handle the responsibility.

Because Mother has had limited contact with the minor child, it is important for the minor child’s continued stability and continuity that she continue to reside with the Wells for a period of time. However, there is no reason why the minor child cannot visit with Mother on weekends. Accordingly, we will order an alternating weekend schedule. This schedule will continue through mid-summer. On July 31, 2010, Mother will assume primary custody. This will provide her a few weeks before the start of the school year to begin the adjustment as a primary caretaker. Based on their investment and developed love for the minor child, the Wells should be permitted to continue their relationship with the minor child and, therefore, this court will grant them one weekend a month, the weekend to be agreed upon by the parties, but in lieu thereof, to be the first full weekend of every month, as well as such other times as the parties may agree. We enter the following order:

ORDER

And now, January 14,2010, after trial held, custody of the minor child, Jocelyn Hine, born September 12,2005, shall be as follows:

(1) Defendants, Larry Wells and Stacey Wells, shall have sole legal custody and primary physical custody of the minor child from the date of this order through July 31,2010. After July 31,2010, the plaintiff, Patricia Hine, shall have sole legal custody and primary physical custody of the minor child.

(2) From the date of this order through July 31,2010, plaintiff, Patricia Hine, shall have partial physical custody on alternating weekends from Friday at 5 p.m. to Sunday at 5 p.m., with the weekends to be the same weekends she has custody of her child, Nathaniel DiGuardi, and at such other times as the parties may agree. Subsequent to July 31, 2010, defendants, Larry Wells and Stacey Wells, shall have partial custody of the minor child one weekend per month, the weekend to be agreed upon by the parties, but in lieu thereof, to be the first full weekend of every month, and at such other times as the parties may mutually agree.

(3) Defendant, Quillen Thrasher, shall have no contact with the minor child until further order of court.

(4) The attached appendix shall be made a part of the within order.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

(1) In addition to the foregoing rights, both parties shall also have the following rights with respect to the child:

(A) The right to reasonable telephone contact with the child when he or she is in the other parent’s custody.

(B) The right to be fully informed concerning the progress of the child in school and the child’s medical status, including the right to obtain the necessary information directly from the child’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the child and the opportunity to participate in those decisions.

(2) In the event of any serious illness of the child at any time, any party then having custody of the child shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and during such illness, each party shall have the right to visit the child as he or she desires consistent with the proper medical care of the child.

(3) Neither party shall alienate nor permit to attempt to alienate the child from the other party. While in the presence of the child, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the child should respect and love.

(4) Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take atrip with the child out of the jurisdiction of Berks County in excess of three days.

(5) The parties shall not conduct arguments or heated conversation when they are together in the presence of their child.

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

(7) Neither party shall question the child as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the child. By this we mean that the child will not be used as a spy on the other party. It is harmful to a child to be put in the role of spy.

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

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the child to make choices and run the risk of parental displeasure. However, the child shall be consulted as to his or her schedule when appropriate.

(B) Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor child.

(C) 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 child to unnecessary apprehension and failure of expectations.

(D) The party having custody of the child should prepare him or her both physically and mentally for the transfer of custody to the other party and have him or her available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should malee arrangements for an adjustment 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.

(F) 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.

(10) If either party feels the other party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.


author: FORD, J,

text:
    Pfeiffer v. Beaky

      Allen I. Tullar, for plaintiff.

      AbeleA. Iacobelli, for defendant.
    October 29, 2009
   FORD, J,

On September 16,2009, I presided over a custody trial on various petitions. I entered an order on October 15, 2009, granting the parties shared legal custody of their two young children. Plaintiff, Michael B. Pfeiffer (Father), was made primary physical custodian. Defendant, Monica M. Beaky (Mother), was granted significant partial custody rights. In this opinion, I explain the reasons for the order.

PROCEDURAL HISTORY

The parties separated on November 12, 2004. In an agreed order dated March 22, 2005, and filed on March 24,2005, Mother was made the primary physical custodian of the parties’ two children and Father was given significant partial physical custody rights. The parties shared legal custody.

On May 5, 2008, Father filed a petition for modification of custody wherein he sought increased physical contact with the children. His petition was scheduled for hearing on September 22, 2008. With the assistance of counsel, the parties conferred and advised the court that they had reached a custody agreement. As a result, the hearing did not take place. However, an agreement was never finalized so Father’s petition for modification still required a hearing. This was one of the petitions that was addressed at the hearing conducted on September 16, 2009. On this petition, Father sought primaiy physical custody of the children.

On December 26, 2008, Mother filed a petition for modification. As she indicated in the petition, “Modification is necessary to accommodate petitioner and children’s move to Exeter Township, PA.” On the same date, Mother filed “notice of intention to relocate.” In it she stated her intention to move from her previous location in Bethlehem, Lehigh County, to Exeter Township, Berks County, Pennsylvania. In the notice, she marked the block which reads, “I did not know, and could not reasonably have known, of the relocation in sufficient time to give 60 days’ notice, and it is not reasonably possible to delay the date of relocation in order to give 60 days’ notice.”

On January 22,2009, Father filed a petition for special relief. In that petition, Father alleged that Mother planned to immediately relocate with the children without his approval and without court order. He asked the court to transfer primary physical custody of the children to him to prevent a relocation to Berks County.

On January 30,2009,1 conducted a hearing on Mother’s notice of intention to relocate and on Father’s petition for special relief. At the conclusion of that hearing, I denied the request to relocate. I granted the Father’s petition for special relief. While the parties remained joint legal custodians of the children, I transferred primary physical custody of the children to Father and granted Mother partial physical custody rights. This was done on an emergency basis and subject to a later full hearing on these petitions.

On February 20, 2009, Mother filed a petition to reconsider the January 30 order. That was denied by order dated March 23, 2009, and filed on March 27, 2009.

On March 3, 2009, Mother filed a notice of appeal to the Superior Court of Pennsylvania from the January 30, 2009, order whereby primary physical custody was transferred to Father. The appeal to the Superior Court was later withdrawn.

The parties proceeded to the final hearing on September 16, 2009, on Father’s petition for modification, Mother’s petition for modification and Mother’s notice of intention to relocate. As to Mother’s pleadings, even though she filed them pro se, she was represented by counsel at the final hearing.

FINDINGS OF FACT

(1) The parties were married on August 5, 1995. The parties are the parents of two children, Andrew, born on October 23, 1997, and Dana, bom on May 21, 1999.

(2) Mother was born on May 11, 1963. Father was born on June 16, 1966.

(3) During the marriage, the parties resided with their children in Bethlehem, Pennsylvania. The only schools that the children have ever attended have been Bethlehem School District schools.

(4) During the marriage, both parties took part in the appropriate child care duties. Mother was not employed outside the home. She devoted full-time attention to raising the children. Father was employed full-time outside the home.

(5) The parties separated on November 12,2004. They divorced on November 17, 2005.

(6) In February, 2007, Mother began full-time employment performing clothing tailor duties at Brooks Brothers at the Promenade, a shopping mall in southern Lehigh County.

(7) Father has been working for Convatec for two years. This is a medical device company near Princeton, New Jersey. He commutes to work from his Bethlehem home which takes approximately one hour and 20 minutes, one way. Father remained in Bethlehem after the separation, despite the distance to his employer, so that he could be near the children and actively involved in their lives.

(8) Both parents care deeply about their children and want as much time as possible to spend with them. The children also love both parents.

(9) Mother presently lives at 1027 Hickory Lane, Exeter Township, Berks County, Pennsylvania. She lives there with her paramour, Steven Kruszewski, in a four bedroom, two bathroom, single family residence on approximately one-third of an acre of land. The children reside there periodically with Mother during her partial physical custody time periods. The neighborhood in which Mother lives is safe and pleasant in a suburban setting. There are a number of children who live in the area. The parties’ children have befriended many of these children.

(10) Father resides at 738 Center Street, Bethlehem, Pennsylvania with his paramour, Devon George. The two children live there when Father has custody. The four bedroom Center Street home is comfortable and appropriate for the children. It is located in a safe neighborhood in a cultural part of Bethlehem near colleges and the historic section. There are only a few children in this neighborhood. The children’s friends in Bethlehem are primarily schoolmates.

(11) Mr. Kruszewski and Ms. George have appropriate relationships with the children. They have done only beneficial things for the children. The children like and feel comfortable with Mr. Kruszewski and Ms. George.

(12) Since at least separation, the parties do not communicate well. Their verbal communications are infrequent and unpleasant. They communicate by e-mail but those communications are not regular enough to keep each other advised of important issues regarding the children. The parties have little affection for each other. This was expressed by Father who, when asked, was not able to state anything positive about Mother’s parenting abilities. In an e-mail (exhibit P-2), Mother told Father: “I cannot think of any possible situation which I would find more repugnant than having to sit in a room with you for even a fraction of a second.... F— Y — .”

(13) From the date of separation until September 2008, Mother has been inflexible in granting accommodations to Father in the custody schedule despite reasonable requests. An accommodation was made in September 2008, to increase Father’s weekday visit from an evening visit to an overnight visit. That was after the parties appeared in court the first time on Father’s present petition for modification.

(14) Mother resigned her position at Brooks Brothers and took a job with Elite Sportswear in Reading on October 27,2008. She works as a fit specialist there. It was by her e-mail dated December 15,2008 (exhibit P-1) that Mother advised Father that she works at Elite Sportswear.

(15) In May, 2008, Father overheard statements from the children that Mother was thinking of moving to the Reading area. (Exeter is a suburb of Reading.)

(16) In December, 2008, Mother and Mr. Kruszewski signed the lease, as lessees, for their Exeter home.

(17) In the e-mail of December 15,2008 (P-1), Mother advised Father, “I will be moving to Exeter Township, outside of Reading, approximately January 15.” Mother proceeded in the e-mail to describe the neighborhood and what schools the children will be attending in Ex-eter.

(18) In her capacity as owner and landlady, Mother entered a lease for her Bethlehem home in late 2008 or early 2009 with a new tenant to take up residence on approximately February 1, 2009. In preparation for the new tenant and the planned move to Exeter, Mother moved the furniture and other belongings from the Bethlehem home at some point in December or January 2009. For a period during one or both of those months, when the children were in the custody of Mother, they slept in sleeping bags on the floor of the Bethlehem residence. There were no cooking or eating accommodations there at that time so the children ate out regularly with Mother.

(19) It was Mother’s intention to move the children to Exeter without court permission and without Father’s consent. The move was prevented by court action taken on January 30,2009, in response to a petition for special relief brought by Father.

(20) Mother told the children or led them to believe that they would be moving to Exeter. In addition to her discussions with them about a move, she and Mr. Kruszewski pointed out the schools that they would be attending. By the same token, Father has discussed custody issues with the children by assuring them that nothing would change in the custody case.

(21) After she secured her position at Elite Sportswear in late October 2008, until she moved to Exeter following the hearing on January 30,2009, Mother commuted to and from her work at Elite. This was a one-hour commute each way.

(22) Mother’s work hours at Elite Sportswear are more flexible than the work hours she had at Brooks Brothers. The salary with each of these employers is approximately the same.

(23) Mr. Kruszewski works a day-shift job at Automotive Services Inc. He is also a deputy fire chief. In the latter position, Mr. Kruszewski cannot move from Berks County, Pennsylvania.

(24) Mother has several motivations for moving to Exeter. She likes the job at Elite Sportswear more than the job at Brooks Brothers where she claims she was subjected to sexual harassment. Moreover, she believes that the neighborhood in Exeter is preferable to the neighborhood in Bethlehem including the availability of friends for the children, the suburban setting and the availability of a better school district than the one in Bethlehem. (The respective merit of the two school districts has not been proven.) However, her primary motivation for moving to Exeter is to live with Mr. Kruszewski.

(25) The minor child, Dana, wishes she could spend more time with Mother and she misses Mother since the court-ordered changing of Mother from primary custodian to partial custodian. However, both children, Andrew and Dana, are doing well in their academics and in their several extracurricular activities. After the transfer of custody to Father in January, the children went through a difficult emotional adjustment but, over a period of weeks, that has improved substantially. Also despite the difficulties of the parties, the children are thriving and progressing beautifully.

(26) When Father’s request to be primary physical custodian was granted at the hearing of January 3 0,2009, it was initially difficult for him and Ms. George to adjust to his being the primary custodian. However, with adjustments, a routine has been established. During periods of Father and Ms. George’s unavailability, Father uses the services of Kate Snyder, a Moravian College student, to act as a nanny for the children. Ms. Snyder is a good influence on the children.

(27) If Mother had been granted the primary physical custody that she sought, midweek visits of Father with the children would have been extremely difficult because of the distance from his work in Princeton, New Jersey, to Mother’s residence in Exeter. This would involve travel time of more than two hours, one way, (Mother acknowledged the likelihood that, if her proposed schedule were adopted, Father could not exercise weeknight visitation due to this distance.) Midweek visitation by Mother from Exeter to Father’s home in Bethlehem is more feasible because the driving time is approximately one hour, one way.

(28) Both children have therapy with Ronald Esteve Ph.D., a respected psychologist who has a practice in Bethlehem. The children enjoy their sessions with Dr. Esteve. Father believes they are benefiting from these sessions. Mother has not witnessed positive change in the children as a result of their sessions with Dr. Esteve; however, she acknowledges that Dr. Esteve is available for the children to talk if they need that.

DISCUSSION AND CONCLUSIONS OF LAW

“In Pennsylvania, custody and visitation matters are decided on the basis of the ‘best interests of the child’ standard, considering all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being.” White v. White, 437 Pa. Super. 446, 450, 650 A.2d 110, 112-13 (1994).

In deciding what are the children’s best interests, both parties have argued the factors enumerated in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). The present case involves an intra-state relocation by Mother. According to the Superior Court of Pennsylvania, the use of a Gruber analysis in cases involving intra-state relocations is left to the exercise of sound discretion by the trial court. Utilization of the Gruber factors is both helpful and appropriate in the present dispute because of the considerable distance between the present residences of the parties, namely, Bethlehem and Exeter, and the considerable distance between these residences and another significant location, Princeton, New Jersey, the place of Father’s employment.

The Gruber factors, use of which assist in determining best interests, B.K. v. J.K., 823 A.2d 987 (Pa. Super. 2003), are as follows: “First, the court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent.... [Second], the court must establish the integrity of the motives of both the custodial and noncustodial parent in either seeking the move or seeking to prevent it.... [Third], the court must consider the availability of realistic, substitute visitation arrangements which will adequately foster an on-going relationship between the child and the noncustodial parent.” Gruber, 400 Pa. Super. at 184-85, 583 A.2d at 439-40.

Mother is seeking the court’s approval to be the primary physical custodian and have the children join her in her relocation to Exeter. Mother has not met her burden of proving sufficient advantages with this move to satisfy the first Gruber factor. In addressing this first factor, the court is mindful that it must consider the economic and non-economic benefits that can be realized from a relocation. See Mealy v. Arnold, 733 A.2d 652 (Pa. Super. 1999).

In terms of economics, the evidence demonstrates that Mother’s salary with Elite Sportswear in Exeter will be almost identical to the salary that she had with Brooks Brothers. There was little to no evidence presented and no argument made that Mother’s standard of living would be increased by the relocation to Exeter.

At the hearing on September 19, 2009, Mother explained that she was a victim of sexual harassment at Brooks Brothers. She explained that the harassment was a significant reason for leaving Brooks Brothers. However, Father’s counsel accurately points out that Mother did not mention this at the hearing on the petition for special relief on January 30,2009, as a reason for wanting to move to Exeter. That hearing took place immediately before Mother’s move. In evaluating this and the evidence from the September 19 hearing, I conclude that this was not one of the significant reasons for her leaving Brooks Brothers.

There is an advantage with the new employment. Mother has more flexible hours when compared with her last employment. It also would make her more available to the children.

Mother testified that she had concerns about a number of aspects of the children’s continued living in the Bethlehem home which she now leases to a tenant. She accurately noted that the Bethlehem home is in an urban area. She expressed concerns about the traffic around the home, concerns about crime and that the children do not have friends, with one exception, in the immediate neighborhood. She contended that the school district in Exeter is better than the one in Bethlehem. She testified that the children now have a number of friends in the immediate neighborhood of the Exeter home, a matter on which the children concurred. She argued that her pleasant rural setting is preferable to the Bethlehem urban setting.

With these explanations by Mother in mind, I find that Mother has not proven that it is better for her and the children to reside primarily in Exeter. To some extent, it depends upon perspective. Mother has convinced me that her home in Exeter is very comfortable for the children and is agreeable in all respects. Suburban living, however, is not necessarily preferable to urban living. The record demonstrates the type of area where the Bethlehem home is located. This area is well known to the parties, counsel and the judge. It is located in a delightful part of Bethlehem, very close to the historic Moravian College campus, the Lehigh University campus, and the other historic districts of Bethlehem. It has regular, well-publicized cultural events. Nothing was presented to show that there are extraordinary traffic problems.

The documentary evidence that Mother presented to make a comparison of the two school districts is not convincing. Each school district appears well equipped to educate these children.

Evidence has not been presented that crime is more of a concern at the Bethlehem home than at the Exeter home.

As to children in the neighborhood, I believe that Mother has accurately described the advantage that her home has over the home in Bethlehem. On the other hand, the children have friends in Bethlehem too and they are primarily classmates. The children have developed these friendships through their years in Bethlehem’s schools.

There is no evidence that the children are being held back in any way in their education in Bethlehem. To the contrary, these are intelligent, articulate, courteous children who are well on their way to a bright future. The parents’ contributions to this impressive development of the children are happily acknowledged. Their teachers receive some of the credit too. The children are excelling in their classes in Bethlehem.

I note that evidence was not presented that the parties’ respective families of origin should be considered in deciding the issues that were presented to the court. There was no testimony presented about these families.

Mother has not proven that she is somehow better off with her move to Exeter than she was when she lived in Bethlehem. The evidence does not establish that the children would be better off with such a move. It would be speculation by me to conclude that the children will be better off with a relocation to Exeter based upon the evidence that was presented. On the other hand, it is a fact that they are doing well and have done well in their present primary living circumstances.

I have carefully examined the evidence pertaining to the motives of the parents. As to Father, he has no need or use for Mother. Unfortunately, he displays that when he communicates with her and when he fails to communicate with her. The evidence does not demonstrate that he is opposing her relocation with the children because of his dislike for her or to spite her. Rather, I conclude that he opposes the relocation of the children because he is rightly concerned that it will result in less contact for him with the children.

As to Mother, I reject her contentions that she took the new job because of sexual harassment. I believe she took the job because of the better hours and what sounds like exciting work compared to the work at Brooks Brothers. She could have taken this new job and done it without relocating. She demonstrated for a few months her ability to commute to and from Reading which was a shorter commute than the one for Father who has been commuting to and from Princeton for years so that he could spend time with the children. Whether it was in Bethlehem or in Exeter, Mother could have worked at Elite Sportswear. The change of employment does not explain why Mother relocated and it does not explain the reason for the relocation.

Mother relocated with the primary objective of being with and living with Mr. Kruszewski who is not permitted to live outside Exeter because of his position as deputy fire chief. This was the overriding objective for Mother as was demonstrated by her move earlier this year despite her ability to commute to the job in Reading and despite the court’s not permitting her to take the children to Exeter with her. This primary motivation is clear from the evidence but its significance was minimized by Mother.

Mother knew that Father was seeking more time with the children because he had filed the petition for modification. Still, she finalized her plan to move with the children and she almost put it into effect. Mother only notified Father of her planned move after all the arrangements were made. If matters proceeded as Mother anticipated, she would have been living in Exeter with the children before the court had an opportunity to act on Father’s petition for more time with the children. Court and Father would have been presented with accomplished facts of the children’s primarily residing with Mother in a new geographic area and attending school in a new school district. The several aspects to Mother’s motivation in doing these things are certainly not worthy of praise.

Are there realistic substitute custody arrangements if the Mother were to relocate with the children? My first observation is that Mother could have accomplished many of her goals without a relocation and without uprooting the children from the home that they have known since birth. She could have resided in her home in Bethlehem with the children and commuted to Elite Sportswear in Reading. She demonstrated her ability to do that over a period of two or three months. She could have maintained a relationship with Mr. Kruszewski although she would not have been able to live with him because of the respective locations of the homes they then occupied. Father then could have maintained his relationship with the children through his continuing to commute to and from his employment in Princeton.

Mother acknowledges that, if the children primarily reside with her in Exeter, for all practical purposes, Father’s ability to have midweek contact with them is eliminated because of a one-way commute of approximately two hours and 20 minutes at the beginning of such visitations when the Father would travel from his work in Princeton to the home in Exeter. That would be followed by a one-hour commute back to his Bethlehem home.

Mother proposed increasing Father’s time with the children on occasions other than midweek with the net effect that, over time, his contact with the children would be of approximately the same frequency that existed before the move to Exeter.

Mother’s proposals are problematic for several reasons. First, except for the living with the paramour, a move to Exeter would have been unnecessaiy. Second, her proposals eliminate midweek contact which is very important for Father. Her proposals ignore the fact that Father was attempting to increase his contact with the children for, what appears to the court to be, good faith reasons. Finally, what Mother proposes results in inconsistent time for Father with the children. When the parties and the children resided in Bethlehem, the contact of both parents was regular in every week. With what Mother proposes, Father is effectively cut off from contact with the children during the school days.

Under all of these circumstances, Mother has not met her burden of proving any of the Gruber factors.

The best interests of the children require that Father be primary physical custodian. This is not to say he has no faults. He, like Mother, has shown no willingness to communicate with the other parent as a mature adult should. He, like Mother, has given assurances to the children about custody case outcomes that he has no business giving. Nevertheless, I believe he will be more flexible in accommodating Mother than Mother has been with him. I have more confidence in Father’s following court expectations and court procedures than I have in Mother. I have this hesitation about Mother because of what she did in regard to her attempted unilateral relocation to Exeter. Father has subordinated the idea of long employment commutes to live in the same town as the children to be a constant factor in their lives while respecting Mother’s custody rights and court processes to alter those. Mother moved to Exeter to live with her paramour with the knowledge, immediately before her move, that it would mean loss of primary custody. She did this even though she already had the viable arrangement of living in Bethlehem with the ability to commute to Exeter for work, to have a relationship with her paramour and to facilitate Father’s partial custody rights. Mother’s unilateral planning, if the court permitted it to succeed, would have disrupted Father’s beneficial, constant presence in the children’s lives. It would have plucked the children from their known productive environment in Bethlehem and placed them in Exeter where some dynamics of how the children would do in Exeter are necessarily unknown.

The children have loving environments in Exeter and in Bethlehem. They have been thriving by residing primarily in Bethlehem. With the concerns I just expressed, it would be detrimental to the children to uproot them and permit Mother to become the primary physical custodian. Were that allowed to happen, Father’s role in the children’s lives would be lessened. Moreover, the court has responded to the children’s (particularly Dana’s) understandable and reasonable request to spend more time with Mother by increasing Mother’s partial custody time beyond what she had from January 30 to the entry of the order on October 15, 2009.

For all of the above reasons, Father’s petition for modification is granted. Mother’s petition for modification is denied and her request to relocate with the children to Exeter is denied.