Achenbach v. Montgomery

15 Pa. D. & C.5th 456
CourtPennsylvania Court of Common Pleas, Berks County
DecidedAugust 25, 2010
Docketno. 06-11309
StatusPublished

This text of 15 Pa. D. & C.5th 456 (Achenbach v. Montgomery) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Achenbach v. Montgomery, 15 Pa. D. & C.5th 456 (Pa. Super. Ct. 2010).

Opinion

LASH, J,

The matter before this court is the petition of plaintiff, Dana G. Achenbach, to modify the child custody order entered by this court on April 16, 2007. Trial was held on August 20, 2010. The court enters the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Dana G. Achenbach (Father), is an adult individual who currently resides at 1652 Prospect Drive, Chesapeake, Virginia 23322.

(2) Defendant, Dianne E. Montgomeiy (Mother), is an adult individual who currently resides at 243 South State Street, Hamburg, Berks County, Pennsylvania 19526.

(3) The parties are the natural parents of a minor child, Kolby D. Arndt-Montgomery, born July 25,1997 (minor child).

(4) The parties were never married nor ever resided together.

(5) Mother has always been the primary custodian of the minor child.

(6) Mother has had several relationships since the birth of the minor child, first with her first husband, Ryan Hartman, then with her second husband, Joseph Narvaez, [459]*459and currently with her boyfriend, Chad Austerberry. Mother and her current boyfriend have an infant daughter, Kally, bom July 1, 2010.

(7) Mother began living with Ryan Hartman some time in 2000, getting married in 2004. They were divorced one year later in 2005. She met Mr. Narvaez in late 2005 or early 2006 and they eventually married. They separated in August 2008. In April of2009, Mother obtained an emergency protection from abuse order on Mr. Narvaez when he broke into her home. A divorce action is pending. She has resided with her current paramour, Chad Austerberry, since April of 2009.

(8) The within action was initially commenced by Father on September 26, 2006 seeking partial custody. A temporary order was entered on January 17, 2007, providing, among other things, that the parties would share legal custody, with Mother to have primary physical custody, with no specific provisions for partial custody awarded to Father. At that time, Father had had no contact with the minor child. The temporary custody order provided that the parties and minor child would consult with a counselor to determine “whether an introduction between Father and the child is in the child’s best interest and if so, how such introduction should take place.”

(9) After counseling was performed, the parties reached an agreement, which was entered as an order of court on April 16, 2007, providing, among other things, that the parties would share legal custody, that Mother would have primary physical custody, with Father to have partial physical custody during the school year every third weekend from Friday at 7 p.m. until Sunday [460]*460at 5 p.m., with an extension until Monday at 5 p.m., if the minor child did not have school on the Monday after Father’s weekend. During the summer, Father would have partial custody for one week in the month of June, two weeks in July, and one week in August. To exchange the minor child, the parties agreed to meet in Dover, Delaware.

(10) Father filed the within petition on November 14, 2008, requesting primary custody of the minor child. Father averred that his household was stable and that Mother’s was unstable in that she had been through several relationships, and that Mother was being evicted from her residence. Further, Mother’s second husband, Joseph Narvaez, was accused of assaulting Mother and was arrested for indecent exposure. Father also alleged that Mother is failing to sufficiently address the minor child’s ongoing medical needs.

(11) Father currently resides with his wife, Nicole, the couple’s son, Dakota, born September 12, 2001, and daughter, Ava, born November 22, 2009.

(12) Mother currently resides with Chad Austerberry, their infant daughter, Kally, and the subject minor child.

(13) Father resides in the Chesapeake School District, Chesapeake, Virginia. Mother resides in the Hamburg School District, Hamburg, Berks County, Pennsylvania 19526.

(14) The parties’ residences are approximately six to six and one-half hours apart.

(15) Father is self-employed in his business known as “Custom Home Improvement & Repairs of Hampton Roads” located in Virginia Beach, Virginia. His sched[461]*461uled work hours are Monday through Thursday from 9 a.m. to 5 p.m., Friday from 9 a.m. to 1 p.m., and Saturday from 9 a.m. to 1 p.m., but the hours are sometimes expanded to accommodate clients.

(16) Mother is currently employed at McCann’s School of Business and Technology, working there since November of2008. She works Monday throughFriday from 9 a.m. to 5 p.m. and some Saturdays.

(17) In accordance with this court’s order, the parties submitted to. an independent psychological evaluation, performed by Alison L. Hill Ph.D., of Berks Counseling Associates P.C. Dr. Hill conducted clinical interviews of the parties, the minor child, Father’s wife and his other son. Dr. Hill also administered the Minnesota multiphasic personality inventory-2 (MMPI-2), the parent awareness skills survey (PASS), and a parent questionnaire. The evaluations took place over a two-month period from April of 2009 to June of2009. A written report was submitted. Dr. Hill then updated her report with an additional clinical evaluation performed on April 27, 2010, providing a written report in May 2010.

II. DISCUSSION

In making disposition, this court considered the testimony of the parties, Father’s wife, Nicole, the minor child’s school guidance counselor, Deborah Reilly, an in camera conference with the minor child, the independent evaluation performed by Dr. Hill, a stipulation on the testimony of the maternal grandmother, and the exhibits of the parties.

Father’s decision to seek primary custody is somewhat unusual, considering he had no quality contact with the [462]*462minor child until 2006. He states he was unaware the minor child could be his until the minor child was approximately 3 years old, when the maternal grandmother instituted adoption proceedings. At that time, Father submitted to a paternity test which determined that he was the father. The adoption proceedings were never completed, but according to Father, he was not made aware of this and assumed that his rights had been terminated. In 2006, Mother filed for child support and it was at that time that Father first learned that he continued to have duties as a parent. Since that time, he has endeavored to spend as much time with the minor child as possible, in the hope of developing a relationship. As stated, there was a preliminary counseling period designed to help Father and the minor child start off on the right foot, and to help the minor child cope with the idea that his natural Father intends to become involved in his life. Shortly thereafter, the current order was entered, granting Father partial custody.

For a time, Father was satisfied with his role as a partial custodian, seeing the minor child every third weekend and for a few weeks during the summer. However, Father became aware of circumstances which caused him to question whether Mother was properly protecting the welfare of the minor child. According to Father, the maternal grandmother advised him that Mother was being physically assaulted by her fiancé, Joseph Narvaez. Father began investigating and determined that Mr. Narvaez had been charged with indecent exposure and had other criminal involvement.

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Cite This Page — Counsel Stack

Bluebook (online)
15 Pa. D. & C.5th 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/achenbach-v-montgomery-pactcomplberks-2010.