Swope v. Swope

689 A.2d 264, 455 Pa. Super. 587, 1997 Pa. Super. LEXIS 64
CourtSuperior Court of Pennsylvania
DecidedJanuary 24, 1997
Docket442
StatusPublished
Cited by52 cases

This text of 689 A.2d 264 (Swope v. Swope) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swope v. Swope, 689 A.2d 264, 455 Pa. Super. 587, 1997 Pa. Super. LEXIS 64 (Pa. Ct. App. 1997).

Opinion

EAKIN, Judge.

Carl L. Swope (Father) appeals from an order of the Court of Common Pleas of York County awarding primary physical custody of the couple’s two youngest children to appellee Mother, Carole J. Swope. We affirm.

Mother and Father married on March 23, 1980, separated in August 1994 and were divorced on June 20, 1995. Three children were born of the marriage: Daaron, born August 3, 1978; Dennis, born May 23, 1982; and Deanna, born December 25,1985.

On November 2, 1994, Father petitioned for the legal and physical custody of Daaron, Dennis and Deanna. Mother, Father, Daaron, Dennis and Deanna appeared at a conciliation conference on November 17, 1994 wherein the couple agreed that Father would have majority physical custody of Daaron with partial rights of physical custody in Mother. 1 The conci *590 liator’s report indicated that Deanna wanted to live with Mother, while Dennis was “non-commital.” On November 23, 1995, the court entered an interim order, pending a full custody hearing, whereby Mother and Father would share legal custody of Dennis and Deanna and alternate weeks of physical custody of both children. A licensed psychologist evaluated the parties and filed reports recommending that primary physical custody be granted to Mother. 2

After a hearing on January 4 and 5,1996, the court awarded primary physical custody to Mother, effective beginning with the 1996/1997 school year, since Mother has moved a short distance away and the children must change school districts. Father was awarded partial custody on alternating weekends, holidays and every other week during the summer. The parties are to share legal custody.

Father claims the trial court abused its discretion in awarding Mother custody because the children are separated from their older brother Daaron, the children expressed a preference to live with Father, and the children’s lives will be disrupted.

Our scope of review of a trial court’s order of child custody is of the broadest type:

Tn reviewing a custody order, an appellate court is not bound by findings of fact made by the trial court which are unsupported in the record, nor is it bound by the court’s inferences drawn from the facts. However, on issues of credibility and weight of the evidence, an appellate court defers to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Only where it finds that the custody order is “manifestly unreasonable as shown by the evidence of rec *591 ord ...” will an appellate court interfere with the trial court’s determination. Therefore, unless the trial court’s ruling represents a gross abuse of discretion, an appellate court will not interfere with its order awarding custody.’

E.A.L. v. L.J.W., 443 Pa.Super. 573, 579-80, 662 A.2d 1109, 1112 (1995) (quoting Robinson v. Robinson, 538 Pa. 52, 55-56, 645 A.2d 836, 837-38 (1994)). 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. Id. at 580, 662 A.2d at 1112.

Father first contends that the trial court failed to consider the policy against separation of siblings. Although the general rule is that siblings should not be separated without compelling reasons, this policy is only one factor to be considered in determining the best interests of the child. Cardamone v. Elshoff, 442 Pa.Super. 263, 279, 659 A.2d 575, 583 (1995).

In the instant case, while not directly addressing this issue, the trial court clearly considered it in discussing the situation of then-17-year-old Daaron, and

how he has responded to [Father’s] input. He is now living with his father and has, essentially, either been kicked out or dropped out of school.
He was essentially truant and Father, at this point, does not have any plans for Darron [sic]. Darron essentially sits around the house and does not have any future plans as to employment and/or obtaining a G.E.D.

Trial Court Order, 4/22/96, at 3. The court was also concerned that Daaron did not really discuss his school problems with Father who, although he knew of Daaron’s truancy, in turn did not discuss it with Mother.

The record supports the trial court’s concern about two impressionable siblings growing up with, and being influenced by, an older brother who is unemployed, is not in school, has few future plans, and who receives little direction from Father. Moreover, Daaron, now 18, may soon be living on his own, out *592 of Father’s house and away from his younger siblings. The policy against separation of siblings is based on factors normally present in family situations, but belied by the situation herein. The conclusion that daily exposure to the role model provided by Daaron would be a good thing does not leap to mind nearly as quickly as the fear he will encourage his siblings to follow in his footsteps. Under these circumstances, we discern no abuse of discretion or manifest error that would warrant reversal of the custody order on this ground. See Cardamone, supra.

Next, Father argues that the children expressed a preference to live with him. While Dennis stated that he wanted to “stay with my dad ... [b]ecause I like it over there more,” Deanna was never asked in court to state a preference. In fact, according to the conciliator’s report, Deanna “wants to live with Mother.”

The preference of a child in a custody case, although not controlling, is a factor to be carefully considered, as long as it is based on good reasons. E.A.L., 443 Pa.Super. at 590, 662 A.2d at 1117-18. The child’s maturity and. intelligence must be considered, and the weight to be given the child’s preference can best be determined by the judge before whom the child appears. Cardamone, 442 Pa.Super. at 278, 659 A.2d at 583.

After the hearing, the trial court observed that

the indication from the children, as well as the parents, established that Father has a rather flexible and lax attitude about the children’s discipline and how they conduct themselves at home.
The father and the mother both concur that the father has a great deal of fun being involved in the activities of the children but that essentially he is not one to forward the idea of education nor of structure in discipline. A concern to the Court is the fact that the children seem to be adopting Father’s ideas as to where they should be and essentially voice as the reason that they should be with *593 Father ...

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Bluebook (online)
689 A.2d 264, 455 Pa. Super. 587, 1997 Pa. Super. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swope-v-swope-pasuperct-1997.