Orlando v. Orlando

43 Pa. D. & C.4th 339, 1998 Pa. Dist. & Cnty. Dec. LEXIS 70
CourtPennsylvania Court of Common Pleas, Berks County
DecidedNovember 9, 1998
Docketno. 97-6873
StatusPublished

This text of 43 Pa. D. & C.4th 339 (Orlando v. Orlando) 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
Orlando v. Orlando, 43 Pa. D. & C.4th 339, 1998 Pa. Dist. & Cnty. Dec. LEXIS 70 (Pa. Super. Ct. 1998).

Opinion

SCHMEHL, P.W., J.,

This matter is before the court on Ms. Orlando’s exceptions to the report and recommendation of the child custody hearing officer. Ms. Orlando, Mother, and Mr. Orlando, Father, are the parents of two minor children, David, age 8, and Aidra, age 6. Mother and Father separated on or about June 6,1997 when Father was excluded from the marital residence by a protection from abuse order obtained by Mother. Mother had physical custody of the children until approximately August 9, 1997 when she attempted to commit suicide.1 Since that time, Father has had primary physical custody of the children.2 For the reasons set forth herein, primary physical custody of the parties’ children shall remain with Father.

The paramount concern in a child custody proceeding is what is in the best interests of the child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of the child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995). The removal of a young child from an established home with one parent is a factor which should be considered in resolving a custody issue because it bears upon a child’s emotional well-being. Commonwealth ex rel. Jordan v. [341]*341Jordan, 302 Pa. Super. (1982). 421, 425, 448 A.2d 1113, 1115

The character and habits of individuals with whom a child has daily in-home contact bear upon whether proximity to these persons is in the child’s best interests. Andrews v. Andrews, 411 Pa. Super. 286, 298, 601 A.2d 352, 357 (1991), affirmed, 533 Pa. 354, 625 A.2d 613 (1993). It is in the child’s interests to avoid situations which might prove harmful, whether physically, mentally or emotionally. See Bucci v. Bucci, 351 Pa. Super. 457, 460, 506 A.2d 438, 439 (1986). Although the primary concern in custody matters lies not with the past but with the present and future, past conduct is relevant to the extent that it will produce an ongoing negative effect on the child’s welfare. Commonwealth ex rel. Gorto v. Gorto, 298 Pa. Super. 509, 514, 444 A.2d 1299, 1301 (1982).

In addition to applying the foregoing law to the facts of a case, the court is obligated to consider the testimony of expert witnesses. Rinehimer v. Rinehimer, 336 Pa. Super. 446, 453, 485 A.2d 1166, 1169 (1984). Furthermore, although the court is not bound to accept the testimony of an expert witness, it cannot disregard uncontra-dicted expert testimony. Murphey v. Hatala, 350 Pa. Super. 433, 447, 504 A.2d 917, 924 (1986), appeal denied, 516 Pa. 634, 533 A.2d 93 (1987).

This has been one of the more venom-saturated custody hearings this court has heard, but, if there was one underlying consistency, it was Mother’s inability to accept any responsibility for the situation and her readily consistent ability to blame others for the entire situation. [342]*342It is, in fact, alarmingly consistent with the remarks made by Peter Thomas Ph.D. about her paranoia. This and other psychiatric conditions were alluded to by Dr. Thomas, both based upon his own evaluation and based upon his comprehensive review of notes received from the family doctor and psychiatrist who had been working with Mother.

Mother would have the court believe that there is a massive conspiracy of police departments out to get her. She would have the court believe that everyone in Father’s family is seeking her destruction as a parent by almost any means possible. Mother spent a fair amount of time on the stand answering questions with questions of her own, even after admonition by the court not to do so. When the issue addressed in questioning was painful to her, or, in her view, the answer would have been embarrassing or incriminating, she dodged by saying that it was not the business of the questioner. In short, there is nothing that dissuades the court from Dr. Thomas’ comprehensive and well-reasoned conclusion that Father should have principal custody of these children. This is not to say that Father does not have some deficits. Clearly he does. But in terms of the best interests and welfare of the children, they pale in comparison to the markedly serious and potentially child-damaging deficits which Mother has.

There was an extensive list of drugs which Mother has been on, some presently.3 Mother was addicted to and [343]*343abused some of these drags, and to the knowledge of the court, she may still be abusing drags since there was no testimony from her or from anyone else that she is now drag-free or substantially so.4 The testimony of her current therapist, Susan Freeman, who holds a master’s in counseling psychology from Kutztown University, suggested that her role was more that of a confidante than as someone either able or willing to deal with the deep-seated and, in the view of Dr. Thomas, incurable psychiatric and personality deficits extant in Mother. His view is that there are some parts of her personality which are ingrained in her, so to speak, based upon some rather damaging things which happened to her as a child and young adult. The best that can be hoped for, in Dr. Thomas’ view, is that she can learn to cope with these personality issues with appropriate therapy and perhaps medicines. Dr. Thomas believes that Mother can certainly deal, to some extent, with her problems, with therapy, but he, of course, would have had to carefully review what was being done, by whom, and for what period of time and, specifically, what areas of her deficit were being addressed before he would be willing to pass on the success of any such modality.

Mother’s life seems to be one of mild chaos. The house is barely taken care of. Police officers who have been at the house report that it is unkempt at best. There may or may not be appropriate heat therein. Mother admitted she does not have running hot water, and either goes to [344]*344the neighbor to bathe or heats water on the stove to get hot water. As described above, the chaos in Mother’s life goes beyond her living conditions. She has attempted twice to take her life. It would have been nice to hear from her that she carefully and precisely limits her intake of prescription drugs and, then, only under the careful and vigorous scrutiny of a medical doctor. She argues that she uses prescription injections to control migraine headaches.

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Related

Rinehimer v. Rinehimer
485 A.2d 1166 (Supreme Court of Pennsylvania, 1984)
Andrews v. Andrews
625 A.2d 613 (Supreme Court of Pennsylvania, 1993)
Commonwealth Ex Rel. Jordan v. Jordan
448 A.2d 1113 (Supreme Court of Pennsylvania, 1982)
Bucci v. Bucci
506 A.2d 438 (Supreme Court of Pennsylvania, 1986)
Andrews v. Andrews
601 A.2d 352 (Superior Court of Pennsylvania, 1991)
Alfred v. Braxton
659 A.2d 1040 (Superior Court of Pennsylvania, 1995)
Commonwealth Ex Rel. Gorto v. Gorto
444 A.2d 1299 (Superior Court of Pennsylvania, 1982)
Murphey v. Hatala
504 A.2d 917 (Supreme Court of Pennsylvania, 1986)
Costello v. Costello
666 A.2d 1096 (Superior Court of Pennsylvania, 1995)

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Bluebook (online)
43 Pa. D. & C.4th 339, 1998 Pa. Dist. & Cnty. Dec. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orlando-v-orlando-pactcomplberks-1998.