Aceti v. Dinoski

48 Pa. D. & C.4th 472, 2000 Pa. Dist. & Cnty. Dec. LEXIS 243

This text of 48 Pa. D. & C.4th 472 (Aceti v. Dinoski) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aceti v. Dinoski, 48 Pa. D. & C.4th 472, 2000 Pa. Dist. & Cnty. Dec. LEXIS 243 (Pa. Super. Ct. 2000).

Opinion

WORTHINGTON, J.,

The plaintiff Christopher Aceti, Father, and defendant Patricia Dinoski, Mother, come before the court concerning custody of their daughter, Tara, age 9. Tara was born in Boynton Beach, Florida on February 8, 1991 as a result [474]*474of a brief relationship between Mother and Father. Her parents were not living together at the time of her birth. Shortly after birth, Tara moved with her mother to New Jersey and has had only sporadic contact with her father when he traveled to visit her in New Jersey and Pennsylvania or when Mother took her to visit with him in Florida.

This case comes before the court in a somewhat unusual manner. Unlike most evidentiary hearings where the parties have been embroiled for many months and sometimes years in custody litigation, this case has never before come to the court’s attention with respect to custody. In fact, the first and only complaint for custody was filed by Father on October 8, 1999 in response to the filing of a petition for hearing in a dependency proceeding filed by Monroe County Children & Youth Services on October 4,1999 to no. 31 NC 1999. The Honorable Peter J. O’Brien found Tara to be a dependent child after hearing on October 13, 1999 and as part of his order states that “Since the goal of the family service plan is to return the child to live with one of her parents, the custody conciliation conference scheduled for November 15, 1999 in an action captioned at 1003 DR 1999 shall proceed as scheduled notwithstanding the present dependency status of this child.” On November 15,1999 a conciliation conference was held resulting in a recommendation by the conciliator and a court order for home study and psychological evaluations in preparation for an evidentiary hearing. Tara lived in a foster home from September 30,1999 through January 2000 when she was placed with her maternal aunt and uncle, Judy and Scott Angus in Bangor, Pennsylvania. An evidentiary hearing was held on Father’s petition for custody on April 25, [475]*4752000 and the court will now dispose of the issues before us.

In any custody case, the court’s paramount concern must be for the best interest of the child. Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998); Mumma v. Mumma, 380 Pa. Super. 18, 550 A.2d 1341 (1988). The child’s physical, intellectual, moral and spiritual well-being are of the utmost importance. Wiseman, 718 A.2d at 847; Swope v. Swope, 455 Pa. Super. 587, 689 A.2d 264 (1997). However, these concepts are nebular terms rendering them amenable to neither simple definition nor application. See Morris v. Morris, 271 Pa. Super. 19, 412 A.2d 139 (1979). There are no presumptions in favor of either parent and the court must make its determination based solely on the particular facts and circumstances of each case. Sawko v. Sawko, 425 Pa. Super. 450, 625 A.2d 692 (1993). In short, this court is obliged to consider all relevant factors that could affect the child’s well-being. Andrews v. Andrews, 411 Pa. Super. 286, 601 A.2d 352 (1991), alloc, granted, 533 Pa. 605, 618 A.2d 397 (1992), aff’d, 533 Pa. 354, 625 A.2d 613 (1993).

In this case we heard testimony from numerous witnesses and had the benefit of home studies and psychological evaluations on Mother, Father and Tara. Additionally, we spoke with Tara in chambers.

Mother is 35 years old and unemployed. She is married to Michael Gaffin and is eight months pregnant. Mother graduated from Montville High School in New Jersey in 1982 and attended cosmetology school for one year. She has essentially worked sporadically as a waitress since that time. She moved around a great deal since her high school graduation and in 1990 moved to Delray Beach, Florida where she met Mr. Aceti. Their relation[476]*476ship lasted approximately three weeks and following its ending Mother learned that she was pregnant with Tara.

Father is 39 years old and is employed as a production associate at Motorola and has been with the same company for almost five years. He resides in his own home in West Palm Beach, Florida which he purchased approximately five years ago. He has lived in Florida for 14 years. Before his employment at Motorola, he worked for Borden Dairy for 10 years as a route salesman.

The instant case presents special difficulties as it contains a direct conflict between the emotional ties and bonds between Tara and her mother versus the stability and consistency of Father. Father’s request for primary custody is also a request for relocation of the child to Florida and will be analyzed as such.

In a hearing where relocation of a child is at issue, the court must analyze the facts presented in relation to the standards enunciated in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). Although the court in Gruber addressed the relocation of a custodial parent, the Superior Court in Clapper v. Harvey, 716 A.2d 1271 (Pa. Super. 1998) directs that in appropriate cases the factors outlined in Gruber, supra be considered as part of the overall best interest analysis when a non-custodial parent wants to relocate with the child.

The factors enumerated in Gruber are:

(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 momentary whim on the part of the custodial parent;

[477]*477(2) The integrity of the motive of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and

(3) The availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. Gruber v. Gruber, 400 Pa. Super, at 184-85, 583 A.2d at 439; Beers v. Beers, 710 A.2d 1206, 1208-1209 (Pa. Super. 1998); Plowman v. Plowman, 409 Pa. Super. 142, 154, 597 A.2d 701, 707 (1991). Furthermore, the Gruber considerations must be applied under the “umbrella of the ultimate objective of determining the best interests of the child.” Anderson v. McVay, 743 A.2d 472, 474 (Pa. Super. 1999).

Under Gruber as applied in this case, we must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the child and is not the result of a momentary whim on the part of the parent.

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Related

Anderson v. McVay
743 A.2d 472 (Superior Court of Pennsylvania, 1999)
Witmayer v. Witmayer
467 A.2d 371 (Supreme Court of Pennsylvania, 1983)
Hartman v. Hartman
476 A.2d 938 (Supreme Court of Pennsylvania, 1984)
Helsel v. Blair County Children & Youth Services
519 A.2d 456 (Supreme Court of Pennsylvania, 1986)
Eckell v. Wilson
597 A.2d 696 (Superior Court of Pennsylvania, 1991)
Plowman v. Plowman
597 A.2d 701 (Superior Court of Pennsylvania, 1991)
Mumma v. Mumma
550 A.2d 1341 (Supreme Court of Pennsylvania, 1988)
Beers v. Beers
710 A.2d 1206 (Superior Court of Pennsylvania, 1998)
Wiseman v. Wall
718 A.2d 844 (Superior Court of Pennsylvania, 1998)
Andrews v. Andrews
625 A.2d 613 (Supreme Court of Pennsylvania, 1993)
Sawko v. Sawko
625 A.2d 692 (Superior Court of Pennsylvania, 1993)
Clapper v. Harvey
716 A.2d 1271 (Superior Court of Pennsylvania, 1998)
Brooks v. Brooks
466 A.2d 152 (Supreme Court of Pennsylvania, 1983)
Morris v. Morris
412 A.2d 139 (Superior Court of Pennsylvania, 1979)
In Re Miller
552 A.2d 261 (Supreme Court of Pennsylvania, 1988)
Warren v. Rickabaugh
600 A.2d 218 (Superior Court of Pennsylvania, 1991)
Gruber v. Gruber
583 A.2d 434 (Supreme Court of Pennsylvania, 1990)
Andrews v. Andrews
601 A.2d 352 (Superior Court of Pennsylvania, 1991)
In the Interest of Sweeney
574 A.2d 690 (Supreme Court of Pennsylvania, 1990)
Swope v. Swope
689 A.2d 264 (Superior Court of Pennsylvania, 1997)

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Bluebook (online)
48 Pa. D. & C.4th 472, 2000 Pa. Dist. & Cnty. Dec. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aceti-v-dinoski-pactcomplmonroe-2000.