Malinchak v. Peterson

47 Pa. D. & C.5th 479
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedMay 12, 2015
DocketNo. 10709 of 2012, C.A
StatusPublished

This text of 47 Pa. D. & C.5th 479 (Malinchak v. Peterson) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malinchak v. Peterson, 47 Pa. D. & C.5th 479 (Pa. Super. Ct. 2015).

Opinion

HODGE, J.,

Before the court for disposition is plaintiff’s petition for modification of custody and defendant’s petition to relocate. The plaintiff, Jordan F. Malinchak (hereinafter, “father”) and the defendant, Courtney Peterson (hereinafter, “mother”) are the natural parents of the minor child, Kira N. Malinchak, bom April 18, 2012. Father initiated the instant custody action on June 12, 2012 by filing a complaint in custody. Following a custody conciliation conference, an agreed upon custody order was entered whereby mother enjoyed [481]*481primary custody of Kira, subject to father’s partial custody on Monday and Wednesday evenings and overnights every Friday. On April 22,2013, father petitioned to modify the existing custody order to increase his periods of partial custody. Following another custody conference, father’s partial custody increased to overnight visitation every Wednesday evening and every weekend from Saturday at 10:00 a.m. until Sunday at 8:00 p.m., in addition to extensive summer and holiday visitation. Father filed a second petition for modification on August 4, 2014, wherein father requested primary physical custody of Kira. On October 27, 2014, mother filed a petition to relocate with the minor child to Austin, Texas. Father opposed mother’s relocation, and the court consolidated mother’s request to relocate and father’s request for primary physical custody for trial. The trial commenced on March 18, 2015 and took an additional three days to complete.

The court summarizes the testimony presented at trial as follows: Doctor Kirk Lunnen, a psychologist employed by people in need, conducted a custody and psychological evaluation of the parties. Dr. Lunnen’s evaluation consisted of multiple interviews with the parties, mother’s current husband, the paternal grandparents, and a home visit of mother’s residence and father’s residence. Dr. Lunnen ultimately opined that the best interests of the minor child would be served by implementing a fifty-fifty division of physical custody between the parties. Dr. Lunnen stated that he reached his conclusion after considering each party’s psychological evaluations, the parents’ relationship with the minor child, the close proximity of the parties’ residences, the ability of both mother and father to parent, and the parties’ available support systems. Dr. Lunnen further opined that the minor child is [482]*482developing appropriately and, so far, appears unaffected by the custody dispute between the parties.

Father is currently twenty-three years old. Father resides with his parents, Robin Malinchak and Francesco Terranova. Father attends college at Youngstown State University full time, and he does not work. Father is completely reliant upon his parents for all of his financial support, including his monthly child support obligation of $100.00. Father is pursuing a degree in criminal justice. Father aspires to become a police officer. Father attends class every weekday at 10:000 a.m., and typically finishes his courses in the afternoon.

Father and mother met in high school. They dated for approximately three years prior to mother becoming pregnant. Mother and father remained close, but they did not maintain an exclusive relationship. Father was present for Kira’s birth, and he tried to assist mother in caring for Kira following her birth. Father stated that he helped assemble Kira’s crib, purchased clothing and baby items for Kira and tried to assist mother in feeding, clothing and comforting their child.

Although father and mother tried to maintain a cordial relationship, their efforts were strained by the presence of mother’s current husband, Jeremy Mao. When father’s relationship with mother began to deteriorate, father filed a custody complaint in an effort to secure a steady visitation schedule between himself and Kira.

Mother notified father of her desire to move to Austin, Texas in the Fall of 2013. Father stated that mother was vague about her intentions, and she seemed to only be considering the idea. Father stated that the petition to modify custody, most recently filed, was not initiated by his fear that mother would move, but rather, because [483]*483father was concerned that the minor child was arriving at his residence with scratches, bug bites and lice on her body. Father stated that he felt mother was not keeping her home clean, and that the animals in mother’s residence were causing Kira’s ailments.

Kira’s paternal grandmother, Robin Malinchak, testified that Kira has her own room at her residence. Father is the primary caregiver for Kira when she is with father, but Mrs. Malinchak enjoys assisting father when Kira is with him. Mrs. Malinchak stated that she has serious concerns about mother’s household because Kira frequently came to her house with lice, bug bites, and severe rashes on her private parts. Mrs. Malinchak contacted Children and Youth Services of Lawrence County regarding her concerns and they proceeded to conduct an evaluation.

Gary Zarilla was the children and youth caseworker assigned to Kira’s case. Mr. Zarilla stated that when he initially visited mother’s residence, there was a lot of garbage and clutter. There were dishes piled up in the sink and several pets living in the house. Mr. Zarilla generally described mother’s house as “overwhelming,” but he did not observe any definitive safety concerns. Mr. Zarilla asked mother to try and improve the overall appearance and cleanliness of her house. Mother complied with Mr. Zarilla’s request, and the conditions were drastically remedied upon Mr. Zarilla’s follow-up visit. Mr. Zarilla did not initiate any dependency proceedings on Kira’s behalf.

Mother testified that she has been the primary care giver for Kira since Kira’s birth. Following Kira’s birth, mother returned to her mother’s residence and lived with maternal grandmother until mother obtained a residence with Jeremy Mao. Mother and Mr. Mao subsequently married [484]*484on August 28,2014 and had a child together on November 28, 2014. Mother stated that her desire to relocate is primarily based upon a job opportunity provided to her husband by her mother-in-law. Mother stated that she does not perceive father as being a good provider for Kira, considering the fact that father is completely dependent upon his parents for his financial needs. Mother believes that she and her husband could better provide for Kira if they relocated to Austin, Texas because her husband would be working for his family’s business and earning in excess of $3,000.00 per month.

Mother wishes to further her education and believes this could be more easily accomplished if she was permitted to relocate with Kira to Austin, Texas. Mother stated that she is amicable to the idea of living with her in-laws, and mother believes that Mr. Mao and his family could provide an adequate support system for her children subsequent to moving.

Jeremy Mao, mother’s husband, also testified on mother’s behalf. Mr. Mao is twenty-three years old. In addition to mother and Mr. Mao’s child, Mr. Mao stated that he loves and cares for Kira. However, Mr. Mao is also conscientious of his role as her step-father. Mr. Mao does not intend to replace father as a male figure in Kira’s life.

Mr. Mao would like to move with his family to Austin, Texas so that he could work for his mother in her family restaurant. Mr. Mao proposed that he and mother could move into his mother’s residence during their transition, and that they could save money to buy their own home. Mr.

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Bluebook (online)
47 Pa. D. & C.5th 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malinchak-v-peterson-pactcompllawren-2015.