Kelly v. Kelly

15 Pa. D. & C.5th 80
CourtPennsylvania Court of Common Pleas, Berks County
DecidedAugust 3, 2010
Docketno. 08-947
StatusPublished

This text of 15 Pa. D. & C.5th 80 (Kelly v. Kelly) 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
Kelly v. Kelly, 15 Pa. D. & C.5th 80 (Pa. Super. Ct. 2010).

Opinion

LASH, J,

This court held a custody trial on June 29 and July 30, 2010. At issue was the petition of defendant, Jeffrey Kelly (Father), to modify the custody order entered in this case on July 22, 2008. We enter the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Donine Kelly (Mother), is an adult individual who currently resides at 2867 Pricetown Road, Temple, Berks County, Pennsylvania.

(2) Defendant, Jeffrey Kelly (Father), is an adult individual who currently resides at 259 Wheatfield Road, Sinking Spring, Berks County, Pennsylvania 19608.

(3) The parties are the natural parents of two minor children, Dylan Kelly, born April 2, 2003, and Jaden Kelly, born January 17, 2005, (minor children).

(4) The parties are husband and wife, having been married on June 22, 2002. They resided together until October 28, 2007 when Father moved from the marital residence. A divorce action is pending.

(5) Initially upon separation, Mother remained in the residence and Father obtained an apartment. On February 5, 2008, Mother moved from the marital residence into the home of the maternal grandparents. Shortly thereafter, Father moved back into the marital residence.

(6) In November of 2009, Mother moved from the home of the maternal grandparents into her current residence, which she owns. She resides there with the minor children. The home is suitable for rearing the minor children.

[83]*83(7) Father currently resides with his paramour, Michele Faust. As stated, the residence is the former marital home and is suitable for rearing the minor children.

(8) Mother’s residence is in the Oley Valley School District and Father’s is in the Wilson School District.

(9) At all times post-separation, Mother retained primary physical custody of the minor children. Initially, the arrangement was informal, with Father returning to the marital home to visit with the minor children while Mother would run errands. Eventually, Father began taking the minor children to his apartment usually for two nights a week, with the visits eventually extending through overnight.

(10) On or about January 22, 2008, Mother filed a custody complaint, resulting in a custody order entered by this court on July 22,2008. The order provided, among other things, that Mother would have primary physical custody with Father to have partial custody as follows:

(A) During the school year every Tuesday and Thursday from 4:45 p.m. to 7:15 p.m. and every other weekend from Friday at 4:30 p.m. through Sunday at 6:30 p.m., and

(B) During the summer every Tuesday from 4:30 p.m. to 7:30 p.m. and every other weekend from Friday at 4:30 p.m. through Monday at 9 a.m. Following the weekend of Father’s partial custody, Father would have Thursday overnight from 4:00 p.m. through Friday at 4:30 p.m.

(11) The order of July 22, 2008 has been modified to address collateral matters, stemming from several contempt petitions and requests for special relief filed by the parties.

[84]*84(12) On or about February 10, 2009, Father filed the within petition to modify the order of July 22, 2008, arguing that he should be awarded primary physical custody. Father alleged, among other things, that the minor children want to reside with him, that Mother does not properly care for the minor children, delegating that responsibility to the maternal grandmother, who is not a fit person to care for them, that Mother, as well as the maternal grandmother, make derogatory statements about Father to the minor children, and that Mother is unable to control her anger toward Father which affects the custodial arrangement.

(13) Mother is currently employed as a physical educad on/health teacher in the Hamburg School District working Mondays through Fridays, from 7 a.m. to 3:30 p.m. The school does provide some flexibility, allowing Mother time off if important matters arise concerning the minor children. Further, Mother does not work during the summer months.

(14) Father is self-employed as a retirement planner, working from his home with flexible full-time hours during the weekdays, working generally from 8:30 a.m. to 4 p.m.

(15) The maternal grandmother provides daycare services for the minor children on weekday mornings from approximately 7 a.m. to 8:30 a.m. until the minor children begin school, then after school for a short period of time until Mother is available from work.

(16) The minor child, Dylan, attends Oley Valley Elementary School. He will be starting the second grade in the 2010-2011 school year.

[85]*85(17) The minor child, Jaden, attends preschool at Little Angels Academy at the Spring Valley Church of God. Previously, Jaden had attended preschool at Atonement Lutheran Christian Preschool, however, Mother unilaterally transferred Jaden to Little Angels over Father’s objection. Previously, the minor child, Dylan, had attended Atonement Lutheran Christian Preschool.

(18) An independent psychological evaluation was performed by Timothy E. Ring, Ed.D. Dr. Ring interviewed the parties, the minor children, Father’s paramour, and the maternal grandmother, and reviewed documentation, including information received from medical and educational sources, parental and child questionnaires, and also conducted several tests, including the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), the Millón Clinical Multiaxial Inventory — III (MCMI — III), the Ackerman-Schoendorf Scales for Parent Evaluation of Custody (ASPECT), the Bricklin Perceptual Scales (BPS), and the Children’s Behavior Checklist (CBCL). Dr. Ring prepared a written report dated January 11,2010, which was submitted to the court.

II. DISCUSSION

Both parties are seeking primary physical custody. In making disposition, this court considered the testimony of the parties, the maternal grandmother,. Donna Renninger, the paternal grandmother, Lynn Fox, Father’s paramour, Michele Faust, Cindy Bickley, the director of Atonement Lutheran Christian Preschool, Christopher J. Spohn, the principal of the Hamburg School District, Aaron Menapace, the athletic director at Hamburg High School, Kelly Kline, Esquire, a friend of Mother’s, John [86]*86Schroll, a business associate of Father’s, the testimony and report of Dr. Ring, and the exhibits submitted by the parties. By agreement of the parties, neither child participated in the proceedings.

Father believes the custody order should be modified to provide that he be the primary custodian for two reasons. First, Father believes he has excellent qualities as a parent and would provide an appropriate home for the minor children. Secondly, Father complains that Mother engages in vindictive and obstreperous conduct, creating difficult and unnecessary obstacles, which hinders his ability to co-parent and which harms the minor children.

Father testified that when the parties’ resided together they shared in the caretaking responsibilities. Fie has been and has always wanted to be extremely involved in all aspects of the minor children’s lives. When it is his turn to have custody, he devotes his time and energy in activities with the minor children. He loves them a great deal and has developed an extremely close bond. The paternal grandmother visits and also enjoys a healthy interaction with the minor children.

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Related

Alfred v. Braxton
659 A.2d 1040 (Superior Court of Pennsylvania, 1995)
Costello v. Costello
666 A.2d 1096 (Superior Court of Pennsylvania, 1995)

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Bluebook (online)
15 Pa. D. & C.5th 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-kelly-pactcomplberks-2010.