Grabko v. Grabko

67 Pa. D. & C.4th 160, 2004 Pa. Dist. & Cnty. Dec. LEXIS 157
Pennsylvania Court of Common Pleas, Monroe County·Decided April 2, 2004·No. no. 758 DR 1993·Published

Opinion

WORTHINGTON, J.,

Thomas R. Grabko, Father, and Diane Grabko, Mother, come before this court concerning custody of their son, Thomas Grabko, age 14, bom February 26, 1990. Mother and Father were married on July 29,1989. Father filed a complaint in divorce on May 2, 2000. The parties were divorced by decree dated February 5, 2004. The parties first began to litigate this custody dispute in 1993. At all time material hereto the parties have enjoyed shared legal and shared physical custody with Mother having primary physical custody.

On May 1,2003, Father filed a petition for modification of custody, which is now before us for disposition. On March 18,2004, we conducted a full evidentiary hearing on Father’s petition for modification of custody. At the hearing we heard testimony from Mother, Father and Thomas.1

[162] Based upon the testimony before this court and the arguments of counsel, we find it is in Thomas’ best interest to grant Father’s petition.

In Pennsylvania, the state legislation has defined elements which are to be considered in custody cases. The statute, in relevant part, is as follows:

“(a) General rule.—
“(1) In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor, which legitimately impacts the child’s physical, intellectual and emotional well-being.
“(2) In making an order for custody, partial custody or visitation to either parent, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child.” 23 Pa.C.S. §5303.

As interpreted by the courts of Pennsylvania, the statute requires that in any custody case, the court’s paramount concern must be for the best interest of the children. Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998); Mumma v. Mumma, 380 Pa. Super. 18, 550 A.2d 1341 (1988). The child’s physical, intellectual, moral and spiritual well-being is of the utmost importance. Wiseman, 718 A.2d at 847; Swope v. Swope, 455 Pa. Super. 587, 689 A.2d 264 (1997). However, these concepts are nebular terms rendering them amenable to neither simple definition nor application. See Morris v. Morris, 271 Pa. Super. 19, 412 A.2d 139 (1979). There are no presumptions in favor of either parent and the court must make [163] its determination based solely on the particular facts and circumstances of each case. Sawko v. Sawko, 425 Pa. Super. 450, 625 A.2d 692 (1993). In short, this court is obliged to consider all relevant factors that could affect the child’s well-being. Andrews v. Andrews, 411 Pa. Super. 286, 601 A.2d 352 (1991), alloc. granted, 533 Pa. 605, 618 A.2d 397 (1992), aff’d., 533 Pa. 354, 625 A.2d 613 (1993). Keeping the above standards in mind, and taking into account all of the testimony and evidence before the court, we find that it is in Thomas’ best interest to grant Father’s petition.

We first considered each parent’s employment stability. Father is employed by New Jersey Transit and earns approximately $40,000 a year.2 Mother is currently employed as a certified nurse and works approximately 40 hours a week at a rate of $10 an hour. Mother works the overnight shift from 11 p.m. to 7 a.m. There is no evidence that either party is facing any job instability. Thus, the parties’ employment stability is equal.

Although neither party is facing employment instability, we do have some concerns related to Mother’s employment. Presently Mother works the overnight shift and Thomas is home alone at night. Because of this, there is no one to assist Thomas in the event of an emergency. Additionally, it has come to our attention that Thomas has an excessive number of absences from school. We suspect that Thomas may be staying up late since there is no one to make sure that he goes to bed at a reasonable hour. We believe this may be contributing to his exces[164] sive number of absences. Since Father holds a job with regular hours, we believe that awarding him primary physical custody will alleviate both of these concerns.

We next considered any occupants of the custodial home. Thomas currently resides with Mother in a small trailer located in Lehighton, Pennsylvania. Thomas has his own bedroom and there are no other occupants in the home. Father currently lives alone in Kunkletown, Pennsylvania. Father’s home has three bedrooms. JR, a/k/a fur-fur, who Thomas considers to be his dog, also resides with Father. During his testimony, Thomas indicated that he has a great deal of affection for fur-fur. We believe that Thomas will benefit by being reunited with his dog. Father also intends to make a spare bedroom available to Thomas for recreational purposes.

There was little evidence presented concerning the condition of either parties’ home since neither parent believes this is of grave importance.

While staying with Father, Thomas is exposed to a number of positive recreational activities. This is significant since Thomas is not involved in any sports and/ or clubs. Thomas does, however, enjoy skateboarding. Father has built Thomas several skateboarding ramps located at his home.3 This is significant since both parties have indicated that Thomas hangs around with friends that they consider undesirable. With the skateboarding ramps located at his house, Father is able to keep an eye on Thomas and his friends. Father has also enrolled Thomas in guitar lessons and introduced him to the world of [165] toy trains, a hobby that Thomas and Father enjoy together. We believe the availability of these recreational activities should help prevent Thomas from getting involved with the wrong crowd.4 It also allows Thomas to enjoy activities with Father, strengthening their relationship.

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Grabko v. Grabko, 67 Pa. D. & C.4th 160, 2004 Pa. Dist. & Cnty. Dec. LEXIS 157 (Pa. Super. Ct. 2004).

67 Pa. D. & C.4th 160 (Grabko v. Grabko) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Mumma v. Mumma
550 A.2d 1341 (Supreme Court of Pennsylvania, 1988)
Wiseman v. Wall
718 A.2d 844 (Superior Court of Pennsylvania, 1998)
Andrews v. Andrews
625 A.2d 613 (Supreme Court of Pennsylvania, 1993)
Sawko v. Sawko
625 A.2d 692 (Superior Court of Pennsylvania, 1993)
Morris v. Morris
412 A.2d 139 (Superior Court of Pennsylvania, 1979)
Andrews v. Andrews
601 A.2d 352 (Superior Court of Pennsylvania, 1991)
Swope v. Swope
689 A.2d 264 (Superior Court of Pennsylvania, 1997)
Myers v. DiDomenico
657 A.2d 956 (Superior Court of Pennsylvania, 1995)