Talley v. McDermott

9 Pa. D. & C.5th 9
CourtPennsylvania Court of Common Pleas, Berks County
DecidedAugust 5, 2009
Docketno. 07-5251
StatusPublished

This text of 9 Pa. D. & C.5th 9 (Talley v. McDermott) 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
Talley v. McDermott, 9 Pa. D. & C.5th 9 (Pa. Super. Ct. 2009).

Opinion

LASH, J,

This court held a custody

trial on July 30 and 31, 2009. At issue is primary custody of the parties’ son, Liam B. Talley McDermott, age 11. This court also reviewed defendant, Niall B. McDermott’s (Father), partial custody time with the parties’ three daughters. Also under review was whether counseling for the parties is appropriate and whether Liam should be permitted to resume individual counseling. We enter the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Clare T. Talley (Mother), is an adult individual who currently resides at 3813 Penns Drive, Reading, Berks County, Pennsylvania 19606.

(2) Defendant, Niall B. McDermott (Father), is an adult individual who currently resides at 80 Overlook Drive, Reading, Berks County, Pennsylvania 19606.

(3) The parties are the natural parents of five children, Roiy N. Talley McDermott, bom July 15, 1992, Elena M. Talley McDermott, born July 11,1995, Liam B. Talley McDermott, bom November 23, 1997, Maeve I. [12]*12Talley McDermott, born March 14,2000, and Brigid C. Talley McDermott, bom April 5, 2003.

(4) Both parties reside in the Exeter School District.

(5) The parties are husband and wife, having been married on January 9,1989. The parties separated on or about November 16,2007, when a temporary protection from abuse order was entered in favor of Mother and against Father, which among other things, evicted Father from the marital residence at 80 Overlook Drive, Reading, Berks County, Pennsylvania.1

(6) The parties have remained separated since the entry of the temporary protection from abuse order, but are not yet divorced. The divorce action is pending.2

(7) The parties were experiencing marital difficulties for an extended time. As a result, Mother filed a divorce action on May 23,2007. Within the divorce was a count for confirmation of custody in which Mother requested the court grant primary custody of the five children to her. However, the parties continued to reside together.

(8) The problems came to a head on or about November 15, 2007. On that date, the minor child, Rory, was cut with a pair of scissors. The incident began after Mother observed the parties’ daughter, Maeve, walking around a table with a pair of sharp scissors. Mother directed her daughter to put the scissors down, however, Rory told Maeve not to listen to Mother. After Mother tried to retrieve the scissors, Rory grabbed the blades, then Mother and Rory each pulled on the scissors, result[13]*13ing in Rory getting cut. He then cursed at Mother. Father, who was in another room and heard the commotion, began attending to Rory and stated to Mother that she “was a danger to the children.” This incident was the catalyst for mother proceeding to file protection from abuse petitions against Father and Rory.3

(9) Temporary orders were granted by this court against Father and Rory on November 16, 2007. The temporary order against Father evicted him from the marital home. The temporary order entered against Rory did not evict Rory from the home, however, Rory moved out with Father, as did the parties’ other son, Liam. Father obtained a temporary arrangement to reside in a friend’s residence.

(10) On or about November 30, 2007, the parties reached an agreement, whereby Mother and the three daughters would move from the marital residence, Father and the two sons would move back into the marital residence, and Mother would receive the sum of $ 10,000 to assist her with relocation. Both abuse petitions were withdrawn by Mother.

(11) As a result of the separation, the custody claim began being processed. A temporary order was entered by agreement on January 3,2008, setting forth that Father would maintain primary custody of the sons, Rory and Liam, and Mother would have primary custody of the [14]*14daughters, Elena, Maeve, and Brigid.4 No partial custody or supervision to the non-custodial parent was set forth. The parties also agreed to have the court appoint Peter H. Thomas Ph.D., to perform an independent custody evaluation.

(12) An unfortunate estrangement developed whereby the daughters and Father had no contact, while Mother and the sons had no contact. The daughters and the sons also became estranged from each other. Each party blames the other for this circumstance.

(13) In response to a petition for special relief filed by Father, the court ordered reunification counseling through Dr. Timothy Ring of Berkshire Psychiatric Associates, which was to take place prior to resuming visitation. The order provided that Dr. Ring, once he observed progress in reconciliation, would recommend visitation or partial custody with the non-custodial parent and the children from which that party was estranged.

(14) Due to costs and insurance concerns, the parties did not proceed with counseling with Dr. Ring. In lieu thereof, the court, on June 30,2008, by agreement of the parties, appointed Robert M. Nagle Ph.D., to perform the reunification counseling. The stipulation, which the court approved, specifically provided that Dr. Nagle would first meet with Mother and the sons to attempt reunification among them prior to involving himself with Father and the daughters.

[15]*15(15) On August 28, 2008, the court entered a new temporary custody order reiterating that Mother would have primary custody of the daughters and Father would have primary custody of the sons, but also setting forth that the non-custodial parent “shall be permitted partial custody or visitation as directed by” Dr. Nagle. The court also removed the case from the trial list setting forth that the custody order would remain in effect for as long as necessary and could become a permanent order, but permitting either party, if a modification was deemed necessary, to make application and obtain a hearing.

(16) Dr. Nagle scheduled and attempted to have sessions with Mother and the sons. However, Dr. Nagle cut off the sessions when he determined that the level of emotion and anger among Mother and the sons precluded any progress in reunification. In lieu of continuing with the reunification process, Dr. Nagle wrote a written report. Further, he never commenced any reunification attempts among Father and the daughters.

(17) In his report, dated November 2008, Dr. Nagle expressed concerns about Father asserting influence in the form of parental alienation. He stated: “we also feel that there is no hope for reunification attempts as long as the boys are with [Father].” He also offered his belief that Father should not have visitation with his daughters and that there is a “real possibility” that Father may be relocating to his native Ireland with the sons.

(18) Recently, the estrangement has ameliorated somewhat. Currently, the parties alternate partial custody of the youngest four children, Sundays from 1 p.m. to 4 p.m. Rory, who is now 17, remains estranged from his mother and does not participate in partial custody.

[16]*16(19) Prior to Dr. Nagle’s involvement, Father obtained counseling for Liam with Pennsylvania Counseling Services. Tracy R. York provided the counseling which, according to Father, went well. However, Mother, who was not involved in the decision to employ counseling for Liam, objected on or about February 18,2008.

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Related

Alfred v. Braxton
659 A.2d 1040 (Superior Court of Pennsylvania, 1995)
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666 A.2d 1096 (Superior Court of Pennsylvania, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
9 Pa. D. & C.5th 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/talley-v-mcdermott-pactcomplberks-2009.