Brugger v. Brugger

66 Pa. D. & C.4th 83, 2004 Pa. Dist. & Cnty. Dec. LEXIS 257
CourtPennsylvania Court of Common Pleas, Berks County
DecidedFebruary 3, 2004
Docketno. 02-6838
StatusPublished

This text of 66 Pa. D. & C.4th 83 (Brugger v. Brugger) 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
Brugger v. Brugger, 66 Pa. D. & C.4th 83, 2004 Pa. Dist. & Cnty. Dec. LEXIS 257 (Pa. Super. Ct. 2004).

Opinion

GRIM,

— The matter before the court is a custody dispute involving Father’s request to modify his periods of partial physical custody. The following are the pertinent facts and procedural history.

The parties share legal custody of their four children: Will (date of birth July 28, 1992), Ross (September 29, 1993), Graham (December 29,1994), and Brett (December 29, 1994). Plaintiff, Deborah A. Brugger (Mother) has primary physical custody of the children. Defendant, Robert Brugger (Father), has partial physical custody of the children.

[85]*85The parties have been abiding by a June 2003, custody order which provides Father, inter alia, with partial physical custody of the children every Saturday from 6 p.m. until Sunday at 6:30 p.m. On alternate Sundays, Father takes the children to 9 a.m. mass. Father also has custody of all the children on Tuesday from 6 p.m. to 8 p.m. and has custody on a rotating basis of one child on Wednesdays from 6 p.m. to 8 p.m. In summer, Father’s Tuesday evening custodial periods extend until Wednesday evenings at 8 p.m.

This order further provided that a party could request a relisting before the custody master without the filing of a petition if the request was made within six months from the date of the order. Father requested and received a relisting and subsequently filed exceptions to the recommended order.

Mother and the children reside in the former marital residence in Topton, Pennsylvania. Following the separation, Father initially lived with his grown daughter and her children in their residence in Bethlehem, Pennsylvania. To be closer to his minor children, Father shared a residence with another man in Topton. This arrangement failed because the man did not like children so Father returned to his daughter’s residence. This past summer, Father moved into an apartment in Topton that is less than two blocks from Mother’s residence.

For nine years prior to the parties’ separation, Father did not work outside the home in order to care for the children. He worked as a realtor during this period. Father now works as a salesperson in Emmaus, Pennsylvania. He works Monday through Saturday beginning at 9 a.m. On Thursdays he works until 8:30 p.m. and on Saturdays he works until 5:30 p.m. The other days he usually works until 6:30 p.m.

[86]*86For approximately 25 or 26 years, Mother has been the nursing and personnel supervisor at a doctors’ office. She works from 8 a.m. to 3 p.m. Monday through Friday. On some Fridays she works until 5 p.m.

All children are involved in scouting activities. Will’s troop meets on Tuesdays. Father wants to become actively involved with scouting but he cannot attend the meetings because he has custody of the other children on Tuesdays. Therefore, he wants his weekly custodial period to be changed to Monday or Wednesday and he wants to have all the children overnight on that day.

Father also wants to have overnight visitation with the individual child. He strongly believes that individual time is important for each child.

The children attend school in Emmaus. Father works approximately one mile from the school. If he were to have the children overnight, he could take them either to Mother’s residence in time to board the school bus or directly to school. He is willing to take the children to their activities that occur during his custodial periods.

The third change which Father requests is that he have all the children for one week of vacation during the summer so that they can do something together, such as camping. He also wants to have each child for one week during the summer so that he can spend quality time with each child. He would have the children’s usual babysitter watch the child while he was at work during the day.

Father complains that Mother is inflexible and will not deviate from the custody order. He asked 34 times for different children and received them only twice. Mother contends that Father shows favoritism by asking for custody of Will more than the other boys. Father testified that he may have asked for custody of Will more because he had wanted to do scouting activities with him [87]*87and Will is the only child who is a scout. The others are cub scouts. Father accommodated Mother’s requests to care for the children three out of four times.

Mother does not want the custody schedule to change. She believes that the present schedule works fine. Mother complains, however, that she does not always have a telephone number to contact the children when they are in Father’s custody. Father takes the children places without notifying her.

Mother does not want the children to stay overnight at Father’s residence during the school year. At her residence, the children’s bedtime is 9 p.m. She believes Father is more lenient and allows them to stay up later. She also thinks that it would be too hectic for Father to get the children ready on time for school because he would have to oversee the children’s homework, have clean uniforms ready for them, and prepare breakfast for them.

All four children want to spend more time with Father. They enjoy their time alone with him. All the children, except Ross, play chess with Father who taught them how to play. The children wish to be able to see Father beyond the times allotted on the custody order.

The children have been in therapy since October 2002, for issues surrounding their parents’ divorce. All of the children told the therapist that they desire to spend more time with Father. The children want more freedom to see Father during the week since he lives so close to them. The therapist believes that flexibility in the custody schedule would be good for them, especially since the two residences are so close in proximity.

The therapist believed that Father wanted to spend more time with Will than he did with the other boys. She wrote that this favoritism elicits resentment from the other children and appears to increase Will’s already present [88]*88symptomology. Will’s maladaptive behavior includes aggression towards siblings and Mother and overt defiance. Will also exhibits depression with anxiety features. (Plaintiff’s exhibit no. 1.)

The paramount concern in a child custody case is the child’s best interests, based on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being. Bovard v. Baker, 115 A.2d 835 (Pa. Super. 2001).

In the case sub judice, it is apparent that both parties love their children and want to be an important influence in their lives. A strong public policy exists against limiting the relationship between a parent and a child. Visitation should be limited or denied only if the parent has been found to possess such severe mental or moral deficiencies as to constitute a grave threat to the child’s welfare. Nancy E.M. v. Kenneth DM., 316 Pa. Super. 351, 462 A.2d 1386 (1983).

Nothing was presented to suggest that Father’s time with the children should be limited. He should be able to spend more time with them. If his work schedule would be a typical one, he would have, at the bare minimum, alternate weekends.

It is well established that the strength of a child’s relationship with each parent is a critical factor in custody determinations. Mahoney v. Mahoney, 354 Pa. Super.

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Related

Mahoney v. Mahoney
512 A.2d 694 (Supreme Court of Pennsylvania, 1986)
Nancy E.M. v. Kenneth D.M.
462 A.2d 1386 (Supreme Court of Pennsylvania, 1983)

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Bluebook (online)
66 Pa. D. & C.4th 83, 2004 Pa. Dist. & Cnty. Dec. LEXIS 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brugger-v-brugger-pactcomplberks-2004.