Marshall v. Mason

14 Pa. D. & C.5th 467
CourtPennsylvania Court of Common Pleas, Centre County
DecidedJuly 30, 2010
Docketno. 2007-1172
StatusPublished

This text of 14 Pa. D. & C.5th 467 (Marshall v. Mason) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Centre County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall v. Mason, 14 Pa. D. & C.5th 467 (Pa. Super. Ct. 2010).

Opinion

GRINE, J,

Presently before the court is a petition for modification of current custody order. Zachariah Marshall (Father) asks the court to allow his two sons, Ezekiel Marshall and Kaleb Marshall be allowed to remain with him in his home in Sterling, Virginia where they have lived since approximately August 2009. Penny Mason (Mother) asks the court to award her full custody of the boys so that they can return to Centre County, Pennsylvania and live with her, her paramour Michael Reitz, and her two-year-old daughter Olivia.

FINDINGS OF FACT

(1) Mother and Father were never married but lived together from 1993 through December 2006.

(2) Ezekiel was born on May 13,1994 and Kaleb was born on July 27, 1997.

[469]*469(3) Both Mother and Father have allegedly had problems with controlled substances in the past.

(4) Father has been diagnosed with several severe medical conditions over the years. Fie was at different times prescribed narcotics for the treatments of these conditions.

(5) Father admits that he relocated to Virginia in part to pursue a relationship with Patricia Gabriel. Father claims that his unstable employment in the State College area also contributed to his decision to relocate.

(6) Father claims that Mother chose to leave him and the children in December 2006.

(7) Mother is currently living with her paramour, Mr. Reitz.

(8) Mr. Reitz testified that he liked Kaleb, but had nothing to say about Ezekiel.

(9) Ezekiel, Father and Mother’s sister, Kim Carney, claim that Mr. Reitz threatened to harm Ezekiel.

(10) Ezekiel and Kaleb were both interviewed by the court in the presence of counsel.

(11) Both children expressed a preference to live with Father.

(12) Both children expressed the belief that Mother could not properly care for them.

(13) Ezekiel claimed that if he had to live with Mother and Mr. Reitz, he would run away.

(14) Both children expressed that they were happy living in Virginia, and that they wished to remain there.

[470]*470CONCLUSIONS OF LAW

(1) “The paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.” This determination is to be made on a case by case basis. Speck v. Spadafore, 895 A.2d 606, 609 (Pa. Super. 2006) (quoting Swope v. Swope, 455 Pa. Super. 587, 689 A.2d 264, 265 (1997); citing Myers v. DiDomenico, 441 Pa. Super. 341, 657 A.2d 956, 957 (1995).

(2) In a custody dispute, a trial court must determine what arrangement is in the best interest of the child, conducting a searching inquiry into all facts and circumstances having an impact on the child’s physical, intellectual, moral, and spiritual well-being. Jackson v. Beck, 858 A.2d 1250, 1253 (Pa. Super. 2004).

(3) “[AJbsent compelling reasons to the contrary, the policy in Pennsylvania is to permit siblings ... to be raised together” Saintz v. Rinker, 902 A.2d 509, 513 (Pa. Super 2006).

(4) “The Pennsylvania Domestic Relations Code, 23 Pa.C.S. §101 et seq., is clear that a trial court is required to consider a child’s preference before entering an award of partial custody, as well as any other factor which will legitimately impact the child’s physical, intellectual, and emotional well being. See 23 Pa.C.S. §5303(a)(l). The weight to be afforded to the child’s preference varies with the age, maturity, and intelligence of that child, together with the reasons given for the preference. Gianvito v. Gianvito, 975 A.2d 1164, 1170 (Pa. Super. 2009) (citing Wheeler v. Mazur, 793 A.2d 929, 938 (Pa. Super. 2002)).

[471]*471(5) “[A] parent’s ability to care for a child must be determined as of the time of the custody hearing and not as of an earlier time” Gianvito v. Gianvito, 975 A.2d 1164, 1169 (Pa. Super. 2009.) (citing Wiseman v. Wall, 715 A.2d 844, 847 (Pa. Super. 1998).

(6) “When custodial parent seeks to relocate at a geographical distance and the non-custodial parent challenges the move, the custodial parent has initial burden of showing that the move is likely to significantly improve the quality of life for that parent and the children[, and,] [i]n addition, each parent has burden of establishing the integrity of his or her motives in either desiring to move or seeking to prevent it[;] . . . court must then consider . . . feasibility of creating substitute visitation arrangements to ensure continuing, meaningful relationship between children and non-custodial parent.” Gruber v. Gruber, 400 Pa. Super. 174, 186, 583 A.2d 434, 440 (1990).

(7) The best interests of children cannot always be separated from the interests of their custodial parents, as the custodial parent’s mental well being affects his or her ability to parent their child. Thomas v. Thomas, 739 A.2d 206, 214 (Pa. Super. 1999).

(8) Determinations regarding child custody and relocation must be made on a case-by-case basis. Zoccole v. Zoccole, 751 A.2d 248, 251 (Pa. Super. 2000).

DISCUSSION

In a custody dispute, a trial court must determine what arrangement is in the best interest of the child, conducting a searching inquiry into all facts and circumstances [472]*472having an impact on the child’s physical, intellectual, moral, and spiritual well-being. Jackson v. Beck, 858 A.2d 1250, 1253 (Pa. Super. 2004). The court finds that it is in the best interest of the children to remain living with Father in Sterling, Virginia. This determination is based on several factors. Both boys expressed a desire to remain living with Father. “The Pennsylvania Domestic Relations Code, 23 Pa.C.S. §101 et seq., is clear that a trial court is required to consider a child’s preference before entering an award of partial custody, as well as any other factor which will legitimately impact the child’s physical, intellectual, and emotional well being. See 23 Pa.C.S. §5303(a)(l). The weight to be afforded to the child’s preference varies with the age, maturity, and intelligence of that child, together with the reasons given for the preference. Gianvito v. Gianvito, 975 A.2d 1164, 1170 (Pa. Super. 2009) (citing

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Related

Wheeler v. Mazur
793 A.2d 929 (Superior Court of Pennsylvania, 2002)
Gianvito v. Gianvito
975 A.2d 1164 (Superior Court of Pennsylvania, 2009)
Wiseman v. Wall
718 A.2d 844 (Superior Court of Pennsylvania, 1998)
Speck v. Spadafore
895 A.2d 606 (Superior Court of Pennsylvania, 2006)
Gruber v. Gruber
583 A.2d 434 (Supreme Court of Pennsylvania, 1990)
Thomas v. Thomas
739 A.2d 206 (Superior Court of Pennsylvania, 1999)
Zoccole v. Zoccole
751 A.2d 248 (Superior Court of Pennsylvania, 2000)
Elliott Associates, L.P. v. Avatex Corp.
715 A.2d 843 (Supreme Court of Delaware, 1998)
Swope v. Swope
689 A.2d 264 (Superior Court of Pennsylvania, 1997)
Myers v. DiDomenico
657 A.2d 956 (Superior Court of Pennsylvania, 1995)
Jackson v. Beck
858 A.2d 1250 (Superior Court of Pennsylvania, 2004)
Saintz v. Rinker
902 A.2d 509 (Superior Court of Pennsylvania, 2006)

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Bluebook (online)
14 Pa. D. & C.5th 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-mason-pactcomplcentre-2010.