Berger v. Berger

48 Pa. D. & C.4th 507, 2000 Pa. Dist. & Cnty. Dec. LEXIS 252
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedMay 24, 2000
Docketno. 592 D.R. 1989
StatusPublished

This text of 48 Pa. D. & C.4th 507 (Berger v. Berger) 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
Berger v. Berger, 48 Pa. D. & C.4th 507, 2000 Pa. Dist. & Cnty. Dec. LEXIS 252 (Pa. Super. Ct. 2000).

Opinion

WALLACH MILLER, J.,

The issue presently before the court concerns the custody of Kyle Adam Berger, born July 23, 1989. The contestants in this custody dispute are Kyle’s maternal grandmother, Gloria Muller and Kyle’s natural father, John Berger. Kyle’s natural mother is Amy Berger. Amy was not an active participant in these proceedings, and any reference to “the Bergers” herein refers to Father and his wife Cindy Berger.

Father and Amy married on March 26,1988 and separated soon after Amy gave birth to Kyle. Amy left the marital residence and moved in with her former husband. Sixteen days after Kyle’s birth, on August 8, 1989, Father filed a custody complaint requesting shared custody of Kyle. Following a master’s conference on September 1, 1989, another judge of this court confirmed the recommendation of the master granting primary physical custody of Kyle to Amy. Father was granted visitation of baby Kyle on Mondays and Wednesdays from 1 p.m. until 4 p.m. Father later discovered that Kyle was not living with Amy, but rather with her mother, Gloria Muller. On July 11, 1991, Father again filed a custody action naming Grandmother Muller and her husband as defendants, again seeking primary physical custody of [509]*509Kyle. Father’s request was refused due to a pending protection from abuse petition filed against Father by Amy. Following a hearing, the court dismissed the PFA petition.

On December 9,1991, Father again requested primary physical custody of Kyle and following a master’s hearing, this court affirmed the master’s recommendation ordering Father and Amy to share physical custody of Kyle with Father having one overnight visit each week.

Father filed another custody action on October 18, 1993 requesting primary physical custody. Following a conference before the master, this court’s order dated December 6, 1993 continued the parties’ status of sharing physical custody with Father receiving additional partial physical custody two weekends a month and four weeks during the summer.

Father and Amy divorced on March 21, 1995. On August 23, 1995, Father again petitioned for a modification of his custody rights, and on October 6,1995, this court affirmed an agreement reached at a master’s conference between the parties. The next year, on September 6, 1996, Father again filed a petition for modification of custody, this time naming Grandmother as an additional defendant and requesting primary physical custody of Kyle. Following a master’s conference, by order dated October 23, 1996, this court issued an interim order expanding Father’s partial physical custody to three weekends a month in addition to the four weeks in the summer. On January 12, 1998, Father petitioned for an evidentiary hearing to finally determine custodial rights. We heard testimony on May 27,1998 and on June 24, 1998, after which the record remained open to re[510]*510ceive a report of a therapist who was seeing Kyle. This report was never filed.

In the interim, Father met Cindy, his present wife, while they were employed together at Wordsworth, a residential school for troubled youths, and they were married Valentine’s Day, 1999. Following the marriage, Father moved into Cindy’s house where they currently live with Cindy’s children, Krystal and Scott. In response to Father’s relationship with Cindy, Grandmother filed a petition to have the court again reopen the record in this ongoing custody dispute to hear new testimony concerning Kyle’s custody arrangement. Following a period of procedural delays, Grandmother and Father filed a joint motion to have the custody matter scheduled as a special trial. This court granted the parties’ joint motion and the trial was conducted on February 29, 2000. We have reviewed all of the evidence presented and the relevant Pennsylvania law, and are now ready to again make a ruling on the issue of Kyle’s custody.

It is well established in Pennsylvania law that in any case determining custody the court’s paramount concern must be for the best interests of the child. Charles v. Stehlik, 560 Pa. 334, 340, 744 A.2d 1255, 1258 (2000); Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 323, 421 A.2d 157, 158 (1980); Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998); R.A.R. v. T.M., 434 Pa. Super. 592, 644 A.2d 767 (1994); Swope v. Swope, 455 Pa. Super. 587, 591, 689 A.2d 264, 265 (1997); Mumma v. Mumma, 380 Pa. Super. 18, 21, 550 A.2d 1341, 1342 (1988), allocatur denied, 524 Pa. 629, 574 A.2d 70 (1990); Morris v. Morris, 271 Pa. Super. 19, 24, 412 A.2d 139, 141 (1979). The Pennsylvania courts have long held that in a custody dispute all other issues are deemed less [511]*511important than the child’s physical, intellectual, moral, and spiritual well-being. Walkenstein v. Walkenstein, 443 Pa. Super. 683, 691, 663 A.2d 178, 182 (1995); Campbell v. Campbell, 448 Pa. Super. 640, 643, 672 A.2d 835, 836 (1996); Dorsey v. Freeman, 438 Pa. Super. 236, 652 A.2d 352 (1994); R.A.R., 434 Pa. Super, at 594, 644 A.2d at 768; Swope, 455 Pa. Super, at 591, 689 A.2d at 265. Our Superior Court has recognized that “best interests is necessarily a nebular term, rendering itself amenable to neither simple definition nor application . . . ,” Morris, 271 Pa. Super, at 24,412 A.2d at 141, and has cautioned that “[t]he court in a custody dispute should avoid mechanical determinations and focus its analysis on a close scrutiny of all particular facts relevant to determining the child’s best interests.” Wiseman, 718 A.2d at 848. A court determining custody must pursue a broad inquiry into all of the pertinent facts and circumstances surrounding the contesting parties that could affect the child’s well-being. Costello v. Costello, 446 Pa. Super. 371, 374, 666 A.2d 1096, 1098 (1995); Andrews v. Andrews, 411 Pa. Super. 286, 297-98, 601 A.2d 352, 357 (1991), affirmed, 533 Pa. 354, 625 A.2d 613 (1993). Finally, our Superior Court has held that a court determining custody must consider the relevant facts as of the time of the hearing, because the “primary concern in custody matters is not with the past but with the present and future.” Witmayer v. Witmayer, 320 Pa. Super. 372, 382, 467 A.2d 371, 376 (1983). (citations omitted) The parties’ past conduct is only relevant if it will produce an ongoing, negative effect on the child’s welfare. Id.

Three types of custody disputes are recognized in Pennsylvania law: parent versus parent; parent(s) versus the Commonwealth; and parent(s) versus a third party. [512]*512Cardamone v. Elshoff, 442 Pa. Super.

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Fisher v. Fisher
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Albright v. Commonwealth Ex Rel. Fetters
421 A.2d 157 (Supreme Court of Pennsylvania, 1980)
Charles v. Stehlik
744 A.2d 1255 (Supreme Court of Pennsylvania, 2000)
Swope v. Swope
689 A.2d 264 (Superior Court of Pennsylvania, 1997)
Cardamone v. Elshoff
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Hockenberry v. Thompson
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Bluebook (online)
48 Pa. D. & C.4th 507, 2000 Pa. Dist. & Cnty. Dec. LEXIS 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-berger-pactcomplmonroe-2000.