Johns v. Cioci

865 A.2d 931, 2004 Pa. Super. 492, 2004 Pa. Super. LEXIS 5014
CourtSuperior Court of Pennsylvania
DecidedDecember 30, 2004
StatusPublished
Cited by79 cases

This text of 865 A.2d 931 (Johns v. Cioci) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johns v. Cioci, 865 A.2d 931, 2004 Pa. Super. 492, 2004 Pa. Super. LEXIS 5014 (Pa. Ct. App. 2004).

Opinion

BECK, J.:

¶ 1 This is a custody dispute involving the twelve year old daughter of divorced parents who was in the primary physical custody of her mother for approximately a decade. After Father petitioned for modification of custody and Mother petitioned for relocation, the trial court held a consolidated hearing. The trial court then denied Mother’s petition for relocation and granted Father primary physical custody. We affirm the court’s denial of Mother’s petition for relocation; however, we reverse the court’s order granting primary physical custody to Father and remand for further proceedings.

I

¶ 2 Appellant Mother and Appellee Father were divorced in Delaware in 1994 after approximately four years of marriage and the birth, in April 1992, of one child. By orders of a Delaware court in 1996 and 2000, parents shared legal custody, Mother had primary physical custody, and Father had partial physical custody. Both parties have remarried. Mother moved to Pennsylvania with permission of the Delaware court, but Father has continued to reside in Delaware. In September 2003, the Court of Common Pleas of Chester County entered an order, by agreement of the parties, that retained the structure of the custody arrangement originally ordered in Delaware. Mother had primary physical custody of the child, and Father had custody every other weekend and one afternoon during the week. The parties’ relationship has been characterized by poor communication, frequent disagreements, and numerous court appearances.

¶ 3 After negotiations for at least several months in 2003, Mother’s husband accepted new employment in Virginia in January 2004. Mother now wishes to relocate to that state with the child. On December 8, 2003 Father filed a petition to modify custody, and on January 29, 2004, Mother filed a petition for relocation. Mother’s proposed new home in Virginia is approximately two hours from Father’s home in Bear, Delaware, representing approximately a doubling of the distance between their current residences.

¶ 4 On February 20, 2004, the parties appeared before a custody conciliator. On March 1, 2004, the Court of Common Pleas of Chester County ordered implementation of the recommendations of the custody conciliator: the custody arrangement was to be maintained, but Dr. Bruce Mapes was to conduct a full custody evaluation.

¶ 5 A custody trial, consolidating the petitions of Mother and Father, began on March 15, 2004. Father renewed his request for a full custody evaluation, but Mother objected, arguing that time was of the essence since her husband had already moved out of state. The trial court first considered Father’s petition for modification, beginning on March 16, 2004. Father was the only witness to testify on that date.

¶ 6 On March 17, both Mother and Father met with Dr. Mapes as part of the custody evaluation. When trial resumed on March 18, 2004, the court indicated that a full custody evaluation would not be necessary at this time, leaving open the possibility that a full evaluation might be required at a future date. The trial judge also stated that he had spoken with Dr. Mapes by phone after the interviews with Mother and Father and that Dr. Mapes had detected no mental pathology in either party. Although the parties were given the opportunity to supplement the record with Dr. Mapes’ testimony, neither chose to call him to testify.

¶ 7 Witnesses who testified on March 18 and 19, 2004 included Mother, step-father, [935]*935step-mother, step-father’s mother, the child’s school principal and the child. The court questioned the child with counsel present. The trial judge had required the parties to submit questions that they wished him to ask during the interview. The court did not directly ask the child her preference with regard to custody, but did seek information from her regarding her relationship with her parents and her interactions within their two households.

¶ 8 On March 28, 2004 the court heard testimony from step-father, Mother, and Father specifically relating to Mother’s petition for relocation. The court then ordered the parties to deliver briefs.

¶ 9 The parties entered into settlement talks and requested an extension from the court. In a letter dated Wednesday, March 30, 2004, the court granted the extension, but also noted that it was “inclined” to award primary custody to Father and to deny Mother’s petition for relocation. The court’s letter stated that if the case had not settled by Friday, the court would issue the “appropriate” order.

¶ 10 The court subsequently received a letter signed by the child and dated April 12, 2004, expressing her desire to live with her mother. The court returned the letter to the child, advising her that such information, being ex parte, could not appropriately be seen by the judge and that any other correspondence should be directed to her mother’s attorney. We note that neither Mother nor Father introduced this letter into evidence at any proceeding, and the circumstances surrounding its writing are unclear.

¶ 11 On April 15, 2004, the court issued a temporary order that granted Father’s petition for modification and denied Mother’s petition for relocation. Mother then filed a petition to reopen, with the child’s letter attached. The court denied the petition. On May 26, 2004, the court entered a detailed custody order that transferred primary physical custody to Father, granted Mother partial physical custody, and provided for shared legal custody.

¶ 12 On June 2, 2004, Mother filed a notice of appeal and emergency application for a stay of the May 26, 2004 custody order. This Court stayed the trial court’s order and remanded for an evidentiary hearing, which took place on June 9, 2004. The child’s school principal, guidance counselor, and the child testified. The evidence revealed that on June 1 (approximately the time that Father was to assume primary custody) the child had been distraught at school, expressing her emotions in writing and verbally.

¶ 13 On June 11, 2004, the trial court vacated the temporary stay and affirmed its May 26 order granting primary physical custody to Father. The trial court issued a detailed opinion on August 11, 2004.

¶ 14 The child started classes in her new school near Father’s residence in Delaware in late summer 2004. Shortly thereafter, in mid-September, Mother filed an emergency application for stay of enforcement of the custody orders of May 26 and June 11, 2004, and Father filed an emergency petition seeking sole legal custody so that he could immediately take the child to a counselor without Mother’s consent. In their petitions, both parties similarly recounted several recent events of concern involving the child. Specifically, the child was performing poorly in school, in contrast to her excellent academic performance in previous years. In addition, she had run away from Father’s home, ending up in a scuffle at the local police station. We note that no documents or testimony in support of these allegations has been admitted into evidence in any proceeding. However, we also note that after a hearing [936]*936on September 27, 2004, the trial judge agreed that the child’s problems were sufficiently serious to warrant immediate counseling.

¶ 15 The order under appeal is the order from May 26, 2004, which incorporates the temporary order of April 15, 2004 and was affirmed by the June 11, 2004 order.

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Bluebook (online)
865 A.2d 931, 2004 Pa. Super. 492, 2004 Pa. Super. LEXIS 5014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johns-v-cioci-pasuperct-2004.