Nieto v. Hawk

42 Pa. D. & C.5th 377
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedSeptember 29, 2014
DocketNo. 10015 of 2006, C.A
StatusPublished

This text of 42 Pa. D. & C.5th 377 (Nieto v. Hawk) 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
Nieto v. Hawk, 42 Pa. D. & C.5th 377 (Pa. Super. Ct. 2014).

Opinion

HODGE, J,

Before the court for disposition is defendant’s petition to modify current custody order and defendant’s petition for special relief.

The plaintiff, Cathy Sue Nieto (hereinafter, “mother”), and the defendant, Jason Michael Hawk (hereinafter, “father”) are the natural parents of the subject minor children, H.S.H., bom September 12, 2000, and M.L.H., bom September 20, 2003. The minor children were bom during the course of the parties’ marriage. Mother and father were divorced in June of 2007. Since the parties’ separation, mother has been the primary custodian. The children attend school in the East Palestine City School District, and they have exclusively attended school within that district.

Following the parties’ divorce, mother remarried Edgard Nieto (hereinafter, “stepfather”). Mother and stepfather have a nine-month-old son, Edgard Nieto, Jr. Father also remarried. Father and father’s wife, Leah Hawk (hereinafter, “stepmother”) have an infant daughter.

The current custody order provides mother with primary physical custody. Father enjoys partial custody of the minor children every other weekend during the school year and extended visitation during the summer months. On July 9, 2014, father filed the instant petition to modify current custody order, and this case was scheduled for a custody conciliation conference. Moments before the parties attended the conference, mother’s counsel advised Father’s counsel that the parties’ oldest child had suicidal ideations. Although the child’s intentions stemmed back to January of 2014, mother only recently became aware of them. Mother delayed telling father because the child expressed that “she was not feeling that way [380]*380anymore.” Father, however, was veiy concerned about H.S.H.’s disclosures and filed a petition for emergency special relief. The court consolidated father’s request for modification of custody and petition for special relief, and a hearing was scheduled for September 4,2014. The court scheduled further hearings for September 5, September 12 and September 18, 2014. Each of father’s petitions are now properly before the court for consideration.

In any custody proceeding, the court’s main concern is the most appropriate custody arrangements for the minor children. 23 Pa.C.S.A. §5327(a); K.B. v. C.B.F., 833 A.2d 767, 771 (Pa. Super. 2003). In a custody contest, such as the case now before the court, where the dispute arises between two parents, the burden of proof is shared equally between the parties, as the court will not presume that custody should be awarded to a particular parent. Id.

In making a determination, the court bases its findings on how the best interests of the child may be served. Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). It is axiomatic that the paramount concern in a child custody case is the best interests of the child, and the court makes its determination based upon a consideration of all factors legitimately affecting the child’s physical, intellectual, moral and spiritual well being. Id. Specific factors that a court must consider are set forth in 23 Pa.C.S.A. §5328(a); see also B.K.M. v. J.A.M., 50 A.3d 168 (Pa. Super. 2012) (holding that “best interests of the child” analysis requires consideration of all Section 5328(a) factors). The court will address each of these factors in the following discussion.

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

Father and mother both encourage and permit contact [381]*381between the other party and the children. When mother has custody of the children, the children are permitted to contact father and vice versa. Prior to these proceedings, the parties entered into a consent order, dated May 21, 2014. Each party has demonstrated an ability to comply with the provisions of their consent order, but father contends that mother displays a more rigid approach to the parties’ shared custody arrangement and is not as flexible as father in resolving requests to alternate or modify the current order. Alternatively, mother stated that there have been instances where father has been offered additional custody and declined to receive the children because his work schedule precluded him from exercising custody.

Overall, the court finds this factor to weigh equally in its determination. A more flexible custody arrangement could only occur if the parties overcame the communication barrier between them. Consequently, the corresponding order of court will direct the parties to attend co-parenting/ communication counseling.

(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

There is insufficient evidence to warrant and present finding of abuse by either party against the other. There was a protection from abuse order against father on mother’s behalf, issued on September 5, 2007; this order expired after one year.

The court has present concerns that mother and stepfather demonstrate an unhealthy relationship. Mother’s relationship with stepfather seems to be the driving force behind father’s request for primary custody. [382]*382Father is concerned about the negative effect mother’s relationship with stepfather has on the children. Father is also concerned that stepfather is not an appropriate role model for the minor children.

(3) The parental duties performed by each party on behalf of the child.

Both mother and father perform all the necessary tasks associated with raising young girls. Mother and father each demonstrate a willingness to care for the children and assist the children in completing schoolwork and attending school activities. Mother has consistently been the primary caregiver for the minor children, and she has assumed a majority of the responsibility of taking the children to doctor appointments, school events and activities, and attending to the children on a more frequent basis. This factor, therefore weighs in mother’s favor.

(4) The need for stability and continuity in the child’s education, family life and community life.

Given the emotional instability the children are currently experiencing, the court believes that its determination must especially attend to the children’s need for stability and continuity. If the court were to award mother primary custody, the court’s finding would be consistent with the histoiy of this case. However, the court is concerned that the children are not being provided with an emotionally stable home environment at mother’s residence. The court’s concern is based upon the concerns presented by father, the guardian ad litem and the minor children.

If father were to be awarded primary custody, this would be the first time father assumed responsibility for the children on a primary basis, despite the fact that father has consistently exercised custody of the children on a frequent [383]*383basis, as provided in the prior orders granting father partial custody. Additionally, the children are very comfortable at father’s residence.

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Related

Arnold v. Arnold
847 A.2d 674 (Superior Court of Pennsylvania, 2004)
K.B. v. C.B.F.
833 A.2d 767 (Superior Court of Pennsylvania, 2003)
B.K.M. v. J.A.M.
50 A.3d 168 (Supreme Court of Pennsylvania, 2012)

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Bluebook (online)
42 Pa. D. & C.5th 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nieto-v-hawk-pactcompllawren-2014.