Davis v. Shawley

72 Pa. D. & C.4th 139, 2005 Pa. Dist. & Cnty. Dec. LEXIS 135
CourtPennsylvania Court of Common Pleas, Centre County
DecidedMay 25, 2005
Docketno. 2004-2382
StatusPublished

This text of 72 Pa. D. & C.4th 139 (Davis v. Shawley) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Centre County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Shawley, 72 Pa. D. & C.4th 139, 2005 Pa. Dist. & Cnty. Dec. LEXIS 135 (Pa. Super. Ct. 2005).

Opinion

GRINE, J.,

Before this court is a complaint for custody brought by plaintiff Douglas J. Davis (Father) in which he seeks primary physical custody of Brittany Shawley (the child). Currently, defendant Crystal L. Shawley (Mother) and Father have been sharing custody of the child. A hearing was held in this matter over the course of two days — March 22 and March 29,2005— during which this court heard testimony from both Father and Mother, as well as the child’s paternal grandmother and paternal aunt. This court also heard testimony from several members of Mother’s family. At the conclusion of the hearing, this court ordered counsel for Father and Mother to submit suggested findings of fact, conclusions of law, and memorandums of law. Counsel for both parents filed their suggested findings, conclu[141]*141sions, and memorandums in a timely manner, and this court has reviewed them. Based on the testimony elicited at the hearing and the written arguments presented by counsel, this court determines that it is in the best interest of the child to grant Father’s petition for primary physical custody.

PRELIMINARY DISCUSSION

The child was bom on November 27,1995. From birth until approximately the age of two years, the child resided with both of her parents. Mother and Father’s relationship floundered when Father was sentenced to a period of incarceration on drug charges. Mother and Father have been separated ever since. Mother was relatively young when the child was bom and relied on the assistance of family members, especially following Father’s incarceration. Father’s mother and sister were Mother’s primary source of assistance during the child’s early years.

After the relationship between Mother and Father ended, Mother went to live with her parents. From that point in time until the time when the child was in her first-grade year, it is unclear exactly what custody arrangement existed between Mother, Father, and the members of Father’s family. Mother testified that her child was primarily with her, but Father and paternal grandmother testified that, up until first grade, the child resided primarily with their family. School records indicate that the child was enrolled in “headstart” in the Bellefonte Area School District, and all parties agree the child was enrolled in “headstart” by Father and his mother. The child also attended kindergarten at the [142]*142Bellefonte Area School District. Mother’s family resided in a nearby community located in the Bald Eagle Area School District. As the child was considered eligible to attend the Bellefonte Area School District, it appears to this court that the child’s primary residence was with Father and his family.

The child began attending first grade in the Bellefonte District, but she ended the school year at the Bald Eagle Area School District. According to Mother, she enrolled the child in the Bald Eagle School District following a weekend visit with the child. Both Mother and paternal grandmother testified that the subject of the child’s switching schools was discussed. Paternal grandmother testified that, while she was agreeable to the child’s switching schools in order to be with her mother, she suggested to Mother that she wait until the end of the academic year before making the change. Mother testified that she did not wish to wait and saw no reason why the child could not be transferred immediately. She, therefore, decided not to return the child to paternal grandmother’s home following a weekend visit and, instead, enrolled her in the Bald Eagle Area School District the following Monday. Father’s family later relocated to the Bald Eagle Area School District in order to be closer to the child and remain a part of her life.

Mother is currently engaged to Barry Hall (fiancé).

While the child was in kindergarten in Bellefonte, Mother moved in with fiancé. The couple have another child, Kaitlyn, who is the child’s half-sister. The family resides in a trailer located on the fiancé’s family farm. During periods of time when Mother has physical custody of the child, the child resides with the family in that [143]*143residence. Testimony indicates that the child and her half-sister have developed a close bond as sisters.

This custody action was originally filed on May 27, 2004, by Father. Father stated in his complaint for custody that he had concerns for the safety and care of the child. Prior to Father’s filing for primary physical custody, the child suffered a first-degree sunburn while in her Mother’s care due to the child’s not wearing sunblock. A series of conferences were held culminating in an order of court dated July 16, 2004, which outlined periods of partial physical custody to be exercised by both parents with Father having custody of the child Mondays and weekends and Mother having custody each Tuesday through Friday. This custody arrangement was generally practiced by the parties until the time of the present court hearing.

DISCUSSION

As in any custody matter, this court must look at what is in the best interest of the child and decide the matter solely on that interest. What constitutes “best interest” is a fact-specific, case-by-case analysis of “all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Sawko v. Sawko, 425 Pa. Super. 450, 454, 625 A.2d 692, 693 (1993), citing Lee v. Fontine, 406 Pa. Super. 487, 594 A.2d 724(1991).

All parties agree that the present custody arrangement is not working. Testimony indicated that Father and fiancé do not get along, and the tension between them has been the source of a number of arguments between the parents concerning the child. It was also apparent in the tes[144]*144timony provided by the parties that Mother and Father do not always get along, and have engaged in more than a few arguments concerning the child. Testimony by the paternal grandmother also provided evidence that the custody situation is negatively impacting the child. According to the paternal grandmother, beginning in January 2005, the child began complaining of stomachaches when the time would come for her to return to Mother’s home following a visit to Father’s home. The child’s physician suggested to paternal grandmother that the child could benefit from counseling, and the child has since been enrolled in counseling. Additionally, Mother provided testimony that the child is aware of the current “battle” being waged over her as she has asked her mother following court proceedings, “Who won me?”

In custody cases involving two parents, where neither has been alleged to be unfit, “[t]he test as to best interest ... is evaluated on a scale that is initially weighed equally as to each parent, and when that scale is tipped in favor of one of the parents, the other must come forward with evidence to reverse the balance.” Id. at 458, 625 A.2d at 695, citing In the Interest of Coast, 385 Pa. Super. 450, 561 A.2d 762 (1989). Before this court, therefore, Father and Mother are viewed as equally suitable to be the primary custodian of the child. This court must then look to which environment provided by each parent would serve the best interests of the child.

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Related

Sawko v. Sawko
625 A.2d 692 (Superior Court of Pennsylvania, 1993)
Wiskoski v. Wiskoski
629 A.2d 996 (Superior Court of Pennsylvania, 1993)
Dile v. Dile
426 A.2d 137 (Superior Court of Pennsylvania, 1981)
In the Interest of Coast
561 A.2d 762 (Supreme Court of Pennsylvania, 1989)
Lee v. Fontine
594 A.2d 724 (Superior Court of Pennsylvania, 1991)

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Bluebook (online)
72 Pa. D. & C.4th 139, 2005 Pa. Dist. & Cnty. Dec. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-shawley-pactcomplcentre-2005.