Szilagyi v. Raicu

75 Pa. D. & C.4th 202, 2005 Pa. Dist. & Cnty. Dec. LEXIS 85
CourtPennsylvania Court of Common Pleas, Berks County
DecidedMay 18, 2005
Docketno. 02-6818
StatusPublished

This text of 75 Pa. D. & C.4th 202 (Szilagyi v. Raicu) 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
Szilagyi v. Raicu, 75 Pa. D. & C.4th 202, 2005 Pa. Dist. & Cnty. Dec. LEXIS 85 (Pa. Super. Ct. 2005).

Opinion

KELLER, J,

Beatrice Andrea Szilagyi, bom March 4,1998, daughter of the plaintiff, Samuel Szilagyi and defendant Tabitha Raicu, is the subject of the custody relocation order at issue. The parties to the action moved to this country from Romania several years ago. They were divorced July 2000, after which the plaintiff moved to Georgia to live with his brother and his family. The plaintiff lived in Georgia from August 2000 through November 2001. While the plaintiff lived in Georgia, Beatrice visited several times, for approximately two weeks at a time. The remainder of the time, the child lived with the defendant, Tabitha Raicu, in Berks County.

In June 2002, the plaintiff filed for partial physical custody of the minor child, and, by stipulated order of June 7, 2002, was granted partial physical custody. The plaintiff had custody of the minor child every other weekend — Friday from 4:30 p.m. to Sunday night at 7 p.m. After this order was entered, however, the defendant failed to allow the plaintiff to take part in the scheduled visitations on numerous occasions due to allegations being investigated by Berks County Children and Youth Services, arising in January 2002, that the plaintiff sexually abused the minor child.

The defendant filed a petition to modify custody on August 15, 2003, due to allegations of child abuse. On October 31, 2003, as a result of a status conference on the petition to modify, the custody order was modified. Due to the many issues surrounding this case, the order ultimately allowed the plaintiff more visitations, with Father not only having the child every other weekend, but also Tuesdays and Thursdays after school until 7 p.m. The order also included a provision that neither parent [205]*205should file reports with Children and Youth Services accusing the other parent of misconduct.

On February 12, 2004, the minor child’s pediatrician reported another possible incident of child abuse to Berks County Children and Youth Services. On February 18, 2004, as a result of this allegation, as well as the many previous allegations beginning in January 2002, a dependency hearing took place. At that point, the parties agreed to have the child put in placement. The child remained in placement until the investigation was completed in July 2004. During the investigation all parties were interviewed and evaluated by Dr. Valliere. See N.T. relocation hearing, 1/14/05, 2/11/05, exhibit P4, pp. 54-62 (Beatrice Szilagyi), 63-69 (Samuel Szilagyi), 90-98 (Tabitha Raicu). During the child’s sessions, as well as to her foster parents, she recanted her allegations of abuse and said she felt uncomfortable lying. N.T. exhibit P4, pp. 57-58. As a result of the evaluations, it was determined that the defendant was unable to see the child unsupervised because she was believed to be coaching her daughter to bring allegations of abuse against her father. See N.T. exhibit P4, pp.70-71, 123-24.

As the allegations against the plaintiff were found to be unfounded, and after trial visits with the father went well, on November 5,2004, an order was entered transferring physical custody back to the father and, on November 10,2004, an order was entered transferring legal custody to the father. See N.T. exhibit P2, pp. 1-2; exhibit P3, pp. 1-4. At that point, the defendant was permitted only supervised visitation, to increase or decrease as recommended by Dr. Veronique Valliere, one time every other week. It was also required that the defendant [206]*206could only speak English during the visits, as a result of the belief that the defendant was coaching the child. Children and Youth Services continued to be involved in the case to supervise the family. See N.T. exhibit P3, pp. 2-3.

On December 16, 2004, the plaintiff, unable to find suitable employment in Berks County, filed a relocation petition, requesting that he be permitted to take his daughter to Georgia to live with his family. This court set the hearing date for January 14,2005. However, prior to the hearing, on December 29,2004, the plaintiff moved back to Georgia with his family, and took Beatrice with him.

On January 14,2005, and February 11,2005, this court heard testimony regarding the plaintiff’s petition for relocation. On March 14, 2005, this court granted the plaintiff’s petition for relocation, finding that it was in the best interests of the minor child, Beatrice Andrea Szilagyi, to remain living with the plaintiff in Georgia. This court granted the defendant supervised visits two times per year for at least one hour at a time.

On April 13, 2005, the defendant filed a notice of appeal to this court’s order of March 14, 2005. On April 22, 2005, this court ordered the defendant to file a concise statement of matters complained of on appeal within 14 days. The defendant filed her concise statement raising one issue on appeal:

“(1) Whether the trial court erred in approving appellee’s relocation to Georgia with the minor child.” (Defendant’s concise statement of matters complained of on appeal, 5/9/05.)

The factors to be considered in determining whether the petitioner’s relocation petition should be granted are [207]*207the factors delineated in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). “First, the court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children, and is not the result of a momentary whim on the part of the custodial parent.” Id. at 184, 583 A.2d at 439. Next, the court must determine the motives for both parties, in wanting the relocation or challenging the relocation. It must be determined whether the motive is to keep the child from the non-custodial parent, and whether the custodial parent will cooperate with alternate visitation arrangements once the move occurs. Id. at 185, 583 A.2d at 439. Lastly, “the court must consider the availability of the realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the noncustodial parent.” Id. The necessity for an alternate visitation arrangement is not going to defeat a move that will benefit the custodial parent and the child. Id. The burden of showing that the move is going to significantly improve the quality of life for the parent and child is primarily upon the custodial parent requesting the relocation. However, both parties have the burden of showing that their motives are pure, either in desiring the move or trying to prevent it. Id. at 186, 583 A.2d at 440.

In the case at hand, this court reviewed the above standard and carefully applied the facts of this case to the standard. Further, this court carefully reviewed all evaluations done by Dr. Valliere and her staff, and the recommendations resulting from the evaluations. First, this court reviewed the potential advantages of the proposed [208]*208move for the custodial parent, here the father, and the minor child. This is a unique case in that this petition for relocation follows years of litigation in both custody court and juvenile court, arising from numerous allegations of sexual abuse by Father. Additionally, the parties came here from Romania and, because of the allegations of sexual abuse against the father, he was ostracized from the small Romanian community here in Berks County. N.T. at 14-16.

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Related

Gruber v. Gruber
583 A.2d 434 (Supreme Court of Pennsylvania, 1990)

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Bluebook (online)
75 Pa. D. & C.4th 202, 2005 Pa. Dist. & Cnty. Dec. LEXIS 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/szilagyi-v-raicu-pactcomplberks-2005.