Fatemi v. Fatemi

489 A.2d 798, 339 Pa. Super. 590, 1985 Pa. Super. LEXIS 6062
CourtSupreme Court of Pennsylvania
DecidedFebruary 27, 1985
Docket01714
StatusPublished
Cited by35 cases

This text of 489 A.2d 798 (Fatemi v. Fatemi) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fatemi v. Fatemi, 489 A.2d 798, 339 Pa. Super. 590, 1985 Pa. Super. LEXIS 6062 (Pa. 1985).

Opinions

BECK, Judge:

Appellant mother challenges the lower court’s denial of: (1) her petition for custody of her sons; (2) her petition for more liberal partial custody, and (3) her petition for partial custody privileges in the presence of male companions. With one modification, we affirm.

Appellant Linda Fatemi (“mother”) and her divorced husband, appellee Jalal Fatemi (“father”), have two sons: Kevin born in 1975, and Curt in 1977. The parties separated early in 1980. The mother retained custody of the two children.

In April 1980 the father went to Iran to be with his family and took the children with him without informing the mother. She did not see the children again until December 1980 when he returned to Wilkes-Barre with them. At his insistence, the parties met in Switzerland in August 1980 and reached an agreement which was incorporated into their divorce. The agreement provided that the father would retain custody of the children, with the mother having visitation privileges each day in his home. Both parties found this arrangement unworkable.

On September 15, 1982, the mother filed a petition for modification. On October 14, 1982, the parties, both represented by counsel, met with a master and entered into a stipulated agreement (“stipulated agreement”) which was converted into a court order on October 15, 1982. The order confirmed custody in the father. The mother was awarded partial custody two weekends a month, with overnight privileges on one of those weekends, and three hours every Tuesday and alternating Mondays.

[594]*594Problems arose immediately with this schedule. In December 1982, the mother filed a petition for contempt, and the father filed a petition to modify. After unsuccessfully attempting to resolve the matter through conferences with the parties, the court entered an interim order. It also ordered evaluations of the children, the parties, and their homes.

The parties continued to experience problems with the schedule. In April 1983, the father filed a contempt petition. The mother filed an answer and new matter requesting custody be transferred to her.

The trial court held hearings on May 26 and 31, and June 7, 1983. In order to consolidate the numerous petitions before it, the court with the agreement of the parties, treated the matter as a custody hearing on the merits.1 N.T. 5/26/83, 4-6. On June 8, 1983, the trial court issued an order confirming custody in the father, granting the mother expanded partial custody on weekends as well as holidays, and one week in the summer. The order prohibited the mother from having male companions present while she was enjoying partial custody. The mother appeals this order.

Initially we note that the trial court fulfilled its responsibility to provide a complete record. The judge also wrote a thorough and well considered opinion. In re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984). Both parties were afforded full opportunity to present evidence on all aspects of the dispute before the court. The trial court interviewed both children in chambers, and the following witnesses testified: appellant, appellant’s mother, appellant’s sister, appellee, and appellee’s housekeeper.

[595]*595The appellant contends that the trial court erred in awarding custody to the father. Alternatively she argues that the trial court erred in not granting her more liberal partial custody. In addition, she maintains it was error for the trial court to prohibit her from having male companions present when she is with the children.

We disagree with the mother’s first contention that the trial court erred in affirming custody in the father. She asserts that uncontradicted testimony reveals that the father initially obtained custody by taking the children to Iran without her knowledge and thereafter frustrated her partial custody privileges by taking the children to Bermuda without informing her.

The trial court heard the case on the merits and properly concluded that the mother had not met her burden of showing that the best interests of the children necessitated a shift in custody. Although her arguments were manifold, the mother centered them on the father’s obstruction to her partial custody. Since the October 15, 1982, order the father has on one occasion violated her partial custody privileges by taking the children to Bermuda during a portion of her partial custody time.

The obstruction of a non-custodial parent’s right to contact with her child is an extremely serious matter, especially when it violates court-ordered visitation or partial custody. Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 419 A.2d 1301 (1980). Isolated violations, however, must be viewed within the framework of the entire custody arrangement. An isolated violation will not automatically trigger transfer of custody. Our independent review of the record reveals that the children are thriving in their present environment and that the trial court correctly concluded they should not be removed from the home where they had lived for three years at the time of the hearing. See Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982); Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982).

[596]*596Appellant alternatively argues that the trial court’s order allows her less time with the children than she had under the prior October 15, 1982, order. We disagree. Although the trial court eliminated the disruptive mid-week visits,2 it granted her expanded partial custody on weekends and provided a holiday schedule and one week during the summer. Overall, the trial court expanded, not curtailed, appellant’s time with the children.

The child’s best interest constitutes the standard by which a trial court crafts and enters a partial custody order that permits relatively extended periods of parent-child contact. Dena Lynn F. v. Harvey H.F., 278 Pa.Super. 95, 419 A.2d 1374 (1980); Scott v. Scott, 240 Pa.Super. 65, 368 A.2d 288 (1976) (Spaeth, J., concurring). We must now consider the standard by which a trial court may fashion and impose restrictions on an award of partial custody. In other words, when may the court impose a restriction and what may be the nature of the restriction?

We begin by noting that usually an award of partial custody will not contain any restriction. A restriction will be imposed if the parties have agreed to a restriction or if the party requesting a restriction shows that without it, partial custody will have a detrimental impact on the child.

It is important for courts to impose restrictions sparingly. See Ferencak v. Moore, 300 Pa.Super. 28, 445 A.2d 1282 (1982). Courts ought not to impose restrictions which unnecessarily shield children from the true nature of their parents unless it can be shown that some detrimental impact will flow from the specific behavior of the parent.

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Bluebook (online)
489 A.2d 798, 339 Pa. Super. 590, 1985 Pa. Super. LEXIS 6062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fatemi-v-fatemi-pa-1985.