Rivera v. Pineiro-Garcia

12 Pa. D. & C.5th 89
CourtPennsylvania Court of Common Pleas, Berks County
DecidedApril 8, 2010
Docketno. 07-12576
StatusPublished

This text of 12 Pa. D. & C.5th 89 (Rivera v. Pineiro-Garcia) 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
Rivera v. Pineiro-Garcia, 12 Pa. D. & C.5th 89 (Pa. Super. Ct. 2010).

Opinion

LASH J.,

The matter before this court is the petition of plaintiff, Alexis Rivera (Father), to modify the child custody order entered in this case by agreement on December 15,2008, regarding custody of the parties’ minor child, Aron J. Pineiro, bom September 28, 2007. Trial was held on April 6, 2010. The Court enters the following Findings of Fact:

I. FINDINGS OF FACT

(1) Plaintiff, Alexis Rivera (Father), is an adult individual who currently resides at 916 Moss Street, Reading, Berks County, Pennsylvania 19604.

(2) Defendant, Yahaira Pineiro-Garcia (Mother), is an adult individual who currently resides at 1008 Scott Street, Reading, Berks County, Pennsylvania 19611.

(3) The parties are the natural parents of Aron J. Pineiro, bom September 28, 2007 (minor child).

(4) This matter initially came before the court through Father’s complaint for custody filed September 16,2008. After appearing before a custody master, the parties [91]*91agreed to resolve the case, as set forth in an order entered December 15, 2008. That order provided, among other things, that Mother would have primary physical custody of the minor child and Father would have partial custody every Monday, Wednesday, and Friday from 11 a.m. until 1 p.m., and alternate weekends from Saturday at 1 p.m. until 7 p.m., and Sunday from 1 p.m. until 7 p.m. Father’s custody time was to be supervised by the paternal grandmother, Luz Rivera, who would also provide all transportation.

(5) On May 19, 2009, Father filed a petition to modify the custody order in conjunction with a motion to hold Mother in contempt, setting forth, among other things, that Mother had refused to allow Father to visit with the minor child, that the minor child suffered injuries from unknown sources requiring Father to take the minor child to the hospital, and because Mother’s home is unclean and unsanitary, and the minor child’s continued residence there would not be in the minor child’s best interest.

(6) The matter was set for a hearing on June 10,2009. At that time, the parties reached an agreement whereby the order of December 15, 2008 would be modified to provide, among other things, that Mother would have primary physical custody and Father would have partial physical custody every Monday, Wednesday, and Friday from 11 a.m. to 3 p.m., and on alternate weekends from Saturday at 11 a.m. until 6 p.m., and Sunday from 11 a.m. until 6 p.m. The requirement that Father’s visits be supervised was rescinded. Father withdrew his petition for contempt.

[92]*92(7) On or about August 11, 2009, Father filed the within petition for modification, alleging, among other things, that Father never agreed to the terms for modification as set forth in the order of June 30, 2009. Father requested that he be granted primary physical custody of the minor child.

(8) Father currently resides with his parents, Luz and Juan Rivera, in a four-bedroom home. Also residing there temporarily-is Father’s 10-year-old cousin, Juan Louis Rivera.

(9) Father has never been employed. He receives SSI due to mental limitations, which Father described as being “slow.”

(10) Mother resides in a three-bedroom home with the subject minor child and her other three children, Yarelis, age 7, Angel, age 4, and Yasteris, 10 months. Mother has a steady boyfriend, who occasionally stays over on weekends.

(11) Mother is also unemployed, since January 2010.

(12) The minor child used to spend weekdays in daycare, however, Mother cancelled the daycare for financial reasons after losing her employment.

(13) The minor child is considered developmentally delayed, currently functioning at the level of a 1 and 1/2 year old, with speech impediments. The minor child receives speech therapy twice a week.

(14) There were several protection from abuse petitions filed by the parties. Mother obtained a final order [93]*93against Father, by agreement without admission, on June 11, 2008, for a period of one year. Father obtained a temporary order against Mother on his own behalf in a separate matter, and obtained one on behalf of the minor child and against Mother, both of which were subsequently withdrawn by Father.

II. DISCUSSION

Father is seeking a 50/50 shared custody arrangement on a week-on, week-off basis. Mother desires to retain primary custody, although she is willing to grant expanded time to Father to permit overnights on weekends, in addition to the time already provided under the order of June 30, 2009. In making disposition, this court considered the testimony of the parties and the exhibits submitted.

The primary thrust of Father’s argument is that he is being denied time with the minor child. He did not know Mother’s current address. He does have her cell phone number, however, she does not answer the phone when he calls. Father states that Mother’s boyfriend is antagonistic toward him. As a result, Father tries to avoid any direct contact with Mother or the boyfriend and, therefore, does not pick the minor child up on weekends, limiting himself to picking up the minor child from daycare on weekdays. However, since the minor child no longer goes to daycare, his time is further limited. Father has relied on the paternal grandmother to pick up the minor child on his behalf, however, this is now a problem because of hard feelings between her and Mother.

[94]*94Father believes he can provide a good household for the minor child, when he has the minor child, they interact in a playful manner. His house is spacious. He is always available to care for the minor child, as is the paternal grandparents, who also do not work.

. Mother provides a different point of view. She states that she would like Father to have the minor child during his times and other times when he asks, however, he does not ask, and even declines visits when Mother inquires whether he would want some time. While Mother agrees that Father loves the minor child a great deal, she questions the extent of his commitment.

On the other hand, the paternal grandmother was very active in obtaining as much custody time with the minor child as possible. Initially, Mother agreed to allow the paternal grandmother to pick up the minor child whenever she asked. However, the paternal grandmother would seek time nearly every day. As a result, Mother began insisting on following the schedule contained in the court order. Mother states that the paternal grandmother then became upset and since that time, the two have had hard feelings. The paternal grandmother stopped picking up the minor child, and since Father was only sporadically involved in picking up the minor child, his visits became even less frequent.

Mother notes that Father has not been involved in the minor child’s speech therapy, nor with medical visits or treatments. The minor child had to have surgery on his ears to implant tubes. Father did not participate. Father states that he would have participated, however, Mother [95]*95never notified him of medical appointments. The speech sessions also create logistical concerns, as the therapist conducts the sessions at the minor child’s home.

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Related

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

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Bluebook (online)
12 Pa. D. & C.5th 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-pineiro-garcia-pactcomplberks-2010.