ERIC G. BACON,

	Plaintiff
vs

AMY M. BACON,
		Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA
CIVIL ACTION - CUSTODY

CASE NO: 933 OF 2000 

APPEARANCES:

SUSAN M. HILL, ESQUIRE, Attorney for Plaintiff
GARRY WAMSER, ESQUIRE, Attorney for Defendant

MAY 18, 2001.  JAMES, J.

FINDINS OF FACT, DISCUSSION, AND OPINION

Plaintiff filed a Complaint for Custody on August 29, 2001, seeking primary custody of the parties’ two minor daughters, Christine D. Bacon, born September 1, 1989, and Rachel D. Bacon, born September 15, 1995.  Defendant had primary custody pursuant to an oral agreement.  A special master was appointed to review the matter and make recommendations.  After the recommendations were made, a full hearing was held before this court on May 10, 2001.
At the hearing plaintiff’s witnesses included plaintiff, himself; Kimberly Mylet, plaintiff’s fiancée; Barry Bennet, a friend; Melanie Kriner, Mr. Bennet’s girlfriend; Patsy Bacon, plaintiff’s mother; and Dr. John Scerbo, an oral surgeon. Plaintiff’s exhibits consisted of a photograph and a report card.
Defendant’s witnesses included defendant, herself; Evelyn Rankin, defendant’s mother; and Michelle DiVirgilio, defendant’s aunt. Defendant presented no exhibits.
At the request of both parties, Kim M. Nguyen, a caseworker at Columbia County Children and Youth Services, conducted home studies of both parties’ residences.  Ms. Nguyen was a joint witness for the parties, and the written home study was entered into evidence as a joint exhibit.

FINDINGS OF FACT

The court finds that the following facts have been proved:

1.	Plaintiff is Eric G. Bacon, age 28, born March 28, 1973.  He lives on Old Berwick Road, Bloomsburg, Pennsylvania, in a large two-story home in a nice residential area.  The house has plenty of room for all the occupants.  Plaintiff resides with his fiancée, Kimberly Mylet, age 35, and Ms. Mylet’s 13-year-old son Brock.  Ms. Mylet’s has another son, Jacob, age 8, who primarily resides with his father and resides at the house every other weekend, every Wednesday evening, and every other Thursday evening until the next morning.  Ms. Mylet is a registered nurse who works second shift.

2.	Defendant is Amy M. Bacon, age 30, born November 3, 1970.  She has lived on 9th Street in Bloomsburg, Pennsylvania, for over a year.  The home is a large mobile-type home with a large back yard.  The home is approximately one block from the Bloomsburg Middle School and High School, and two blocks from the Bloomsburg Town Park.  The home has plenty of room for the occupants, who include plaintiff and the two minor children.  

3.	After living together on and off since 1989, the parties were married in November of 1995.  They separated for the last time in 1997 and were divorced in 1996 or 1997.  There were two children born of their marriage, namely Christine Evelyn Bacon, born September 1, 1989, and Rachel Denise Bacon, born September 15, 1995.  

4.	The children have primarily resided with defendant since the parties’ separation.  Since the separation, the children have temporarily resided with plaintiff every other weekend and holidays.  Recently, Wednesday evenings have been spent with plaintiff.  Plaintiff has consistently exercised his temporary custody rights.  Plaintiff and defendant have been very cooperative in this regard.  Defendant has been very cooperative in permitting plaintiff’s relatives, such as his mother, to have partial custody and contact with the children when plaintiff was away from the area on business and at other reasonable times.  

5.	Both parties have extended families who have been very active in the children’s’ lives and have had a positive influence on the children.  The parties have both cooperated in nurturing the children’s’ relationship with their respective relatives, including grandparents.

6.	Defendant is employed as a hair stylist.  She works Tuesday and Friday 2 p.m. to 8 p.m., and Saturday from 8 a.m. to 2 p.m. when she has custody and 11 a.m. to 6 p.m. when plaintiff has custody.  Rachel is at day care and Christine rides the bus to defendant’s mother’s house on Tuesday and Friday when defendant works.  

7.	Defendant attends church at least two times per month with the children.

8.	Defendant had been in an abusive and unhealthy relationship with a man.  She broke off the relationship three years ago.  Although she has dated, there is no indication of her involvement in an unhealthy relationship during the last three years or a relationship that would adversely affect the children.

9.	Plaintiff works as a welder at Deluxe Homes.  He normally works 6:00 a.m. to 2:30 p.m. Monday through Friday, with occasional Saturday overtime.  

10.	Plaintiff and his fiancée intend to be married in June of 2002.  Their combined incomes are significantly greater than defendant’s, although defendant has adequate income to care for the children.

11.	Christine has attended the Bloomsburg Middle School for the last year, and Rachel has been in daycare and will start kindergarten in the fall of 2001.  If they reside primarily with plaintiff, they will attend Central Schools.  Christine is doing poorly in school.  Her first year in middle school has been difficult for her academically.  She needs remedial education before entering seventh grade.  Neither child is involved in extracurricular activities.

12.	The parties and the children are healthy, except Rachel.  Rachel was diagnosed as an infant with hydrocephalus.  She has a shunt implanted which drains excess fluid from the brain to the abdomen.  She must be careful with her physical activities and sees her doctor at least once each year.  By all accounts, defendant has become well-informed about Rachel’s condition and takes excellent care of her medical needs and monitors her activities in light of her restrictions.

13.	Rachel developed decayed teeth in the summer of 2000.  Defendant had Rachel treated just prior to that time at a local dental clinic which indicated that she needed to get another dentist more familiar with pediatric dentistry.  Plaintiff took her to an oral surgeon in August 2000.  The oral surgeon recommended that Rachel be treated immediately.  Plaintiff informed Defendant of this.  Defendant took Rachel to a dentist in Lewisburg for treatment, but defendant declined this treatment since Rachel would be under a general anesthesia for the procedure.  Defendant believed that the general anesthesia was not appropriate for Rachel because of her hydroencephalus.  She tried to get Rachel to the Geisinger Medical Center for treatment of her teeth since that is where her neurologist was located.  It took several months to get into the Geisinger.  In December 2000 Rachel had an operation which addressed her teeth problems.  This incident precipitated the filing of the custody complaint by plaintiff.

14.	Plaintiff had not and has not been involved in the children’s medical or dental care, except for the evaluation with the oral surgeon.

15.	Plaintiff and defendant both take good care of the children's everyday needs, including grooming.

16.	Both parties have different methods of discipline.  Neither party abuses the children.

17.	Christine wants to live with plaintiff because there is more privacy, particularly from Rachel; her dad “lets her do more things”; and because there appear to be more material goods at plaintiff’s house. 

18.	Although the parties have cooperated with each other in effecting the custody arrangements over the years between themselves and their families, they do not communicate well on important details of the children’s care, including but not limited to medical and dental care, school grades, and other issues.   

19.	Both parties have provided the children with love and affection.

20.	The parties are credible.

21.	Defendant has been the primary caregiver for the children since their birth.

22.	Both parties have been loving and caring parents, who sincerely have the best interests of the children at heart.

DISCUSSION

The paramount consideration of any child custody proceeding is what is in the best interest and welfare of the child, which includes preserving the welfare of the child’s physical, intellectual, and spiritual well being.  Cardamone V. Elshoff, 442 Pa.Super. 263, 659 A.2d 575 (1995).  The court will consider all relevant factors that could affect a child’s well being.  Andrews v. Andrews, 411 Pa.Super. 286, 289, 601 A.2d 352, 353 (1991).
The legislature has given some guidelines for determining what custody arrangement is in the best interest of the children.  23 Pa.C.S. § 5303(a) provides the “general rule”:
(1)	In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor that legitimately impacts the child’s physical, intellectual and emotional well being.

(2)	In making an order for custody, partial custody or visitation to either parent, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child.

(3)	The court shall consider each parent and household member’s present and past violent or abusive conduct that may include, but is not limited to, abusive conduct as defined under the act of October 7, 1976 (P.L. 1090, No. 218), known as the Protection From Abuse Act.1

In this case, both parents have been loving and devoted to Christine and Rachel, each in their own manner.  Despite the marital and personal difficulties of the parties, they have cooperated and will continue to cooperate in fostering a relationship of both parents with the children.  
Both homes are adequate for the children.  Both neighborhoods are friendly and safe.  Both parties are able to care for the children.  Both parties provide a spiritual component to the children’s lives.  Both parties offer appropriate care for the children. 
Both parties have a support network to help with nurturing the children.  Their support networks involve good families and friends.    
This court is concerned with the Christine’s educational performance and plans.  Although the transition from elementary school to middle school is oftentimes difficult, Christine’s performance and attitude toward school is troublesome, particularly for a child who is as articulate as Christine.  Neither party has a particular plan to address this concern. In addition, Christine and Rachel are very personable and active.  They should be involved in extracurricular activities.  Neither party had a plan to do this.  There is some concern that finances play a role.  The parties should communicate to get these girls into extracurricular activities.
Christine has told this court that she desires to primarily live with her father.  “Although the express wishes of a child are not controlling in custody decisions, such wishes of a child constitute an important factor that must be carefully considered in determining the child’s best interest. … The child’s preference must be based on good reasons, and the child’s maturity and intelligence must be considered.”  McMillen v. McMillen, 529 Pa. 198, 203, 602 A.2d 845, 847 (1992) (citations omitted).  See also, Swope v. Swope, 455 Pa.Super. 587, 592, 689 A.2d 265, 266 (1997); Myers v. DiDomenico, 441, Pa.Super. 341, 346, 657 A.2d 956, 958 (1995).
Christine is mature and intelligent, but her reasons to change residences are ephemeral.  The reasons are based mostly on her own comfort rather than substantive reasons.  They are not good reasons.  She also acknowledged that Rachel was a “mommy’s girl” and would not want to move.  Futhermore, Christine set up a scenario where she would live with her father during the week and live with her mother on weekends and Wednesday evenings.  Clearly, she wants to spend a great deal of time with both parents.
Defendant has become quite adept at handling Rachel’s medical condition.  She has educated herself on the subject and attends quite well to Rachel’s needs in this regard.  Rachel is a “mommy’s girl”, and there is no reason to disrupt that situation. Defendant has shown considerable ability and willingness over the years to encourage the extended family on both sides to have plenty of contact with the children.  There is no reason to think this will change.  
Although plaintiff has been actively involved in the children’s lives, defendant has been the primary caregiver.  In a custody case, continuity of care is extremely important.  Gerber v. Gerber, 337 Pa. 580, 487 A.2d 413 (1985).  
After consideration of all of the relevant factors, the court finds that there are insufficient circumstances and facts to warrant a modification of the custody arrangement.  The best interest of the minor children would be best served by a custody arrangement that provides for shared legal and physical custody, with primary physical residence with defendant and significant residential time with plaintiff.  Additionally, both parties must learn to communicate with each other better, and both parties must address the educational needs of the children. 

ERIC G. BACON,

	Plaintiff
vs

AMY M. BACON,
		Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA
CIVIL ACTION - CUSTODY

CASE NO: 933 OF 2000 

ORDER

	AND NOW, this 18th day of May 2001, it is ORDERED AND DECREED as follows:
1.	The parties shall enjoy joint legal custody of their minor children, Christine Evelyn Bacon, born September 1, 1989, and Rachel Denise Bacon, born September 15, 1995, and shared physical custody of the children subject to the physical custody schedule set forth herein.

2.	Defendant shall have physical custody of the children except during those times when defendant shall have physical custody as specified in paragraph three (3) below.

3.	Plaintiff shall have physical custody as follows:

a.	Weekends - Alternating weekends from 4:00 p.m. on Friday until 6:00 p.m. on Sunday.

b.	Summer - Each party shall have two (2) weeks of physical custody of the minor children during each summer at their convenience, subject to thirty (30) days advance written notice to the other.

c.	Christmas - Plaintiff shall have custody with the minor children each year from 2:00 p.m. on Christmas Day until 7:30 p.m. on December 28th.  Defendant shall have physical custody each year from 3:00 p.m. on December 24th until 2:00 p.m. on Christmas Day, and from 7:30 on December 28th until 3:00 p.m. on December 31st.

d.	Easter – Plaintiff shall have physical custody each year from 3:00 p.m. on the eve of the holiday until 2:00 p.m. on Easter Day.  Defendant shall have physical custody each year from 2:00 p.m. on Easter Day until the following day.

e.	Thanksgiving – Plaintiff shall have physical custody each year from 3:00 p.m. on the eve of the holiday until 2:00 p.m. on Thanksgiving Day.  Defendant shall have physical custody from 2:00 p.m. on Thanksgiving Day until 3:00 p.m. the following day.

f.	Holidays - Memorial Day and Labor Day in even numbered years, and New Years Day and Fourth of July on odd numbered years, 3:00 p.m. the evening before the holiday until 7:30p.m. the evening of the holiday.

g.	Every Father’s day from 3:00 p.m. on Saturday until 7:30 p.m. on Sunday. (Defendant shall have every Mother’s Day from 3:00 p.m. on Saturday until 7:30 p.m. on Sunday).

h.	Both parties shall have access to the children on or near each child’s birthday and on or near each parties’ birthday.

The holiday schedule shall supercede the regular custody schedule to the extent it conflicts with the regular schedule.  

4.	Nothing in this order shall be construed to restrict or limit the ability of the parties to agree to additional custody arrangements.
 
5.	The parties shall equally share all transportation necessary to implement this order.  

6.	The parties shall have reasonable telephone contact with their minor children when they are in the custody of the other party.

7.	The parties shall exchange all information pertaining to the health, education, and welfare of the minor child; including without limitation, report cards; progress reports from school; approval of extraordinary medical and dental treatment; summer school; summer camp; and approval of schools in general, provided that such approval shall not be unreasonably withheld.

8.	The parties shall have equal access to all school and medical records of the minor children, and each shall have the ability to consent to emergency medical treatment when the children are in the custody of such party.

9.	If circumstances from time to time prevent the exercise of physical custody, the parties shall provide one another with timely and reasoanble notice as to the existence of such circumstances and an equal amount of make-up physical custody time shall be provided at the earliest mutually agreeable date and time.

10.	The parties shall notify one another by telephone of any serious illness of the children.

11.	In the event of any serious illness of a child, each party shall have the right to visit the child as frequently as he or she desires, consistent with proper medical care.

12.	The term “illness”, as used herein, shall mean any disablity which confines a child to bed under the direction of a licensed physician for a period in excess of forty-eight (48) hours.

13.	The parties shall exert reasonable efforts to maintain free access and unhampered contact between the children and each of the parties and to promote a feeling of love and affection between the children and the other party.

14.	The parties shall not harass, molest, or malign each other, or their respective families in the presence of their children.

15.	Neither party shall engage in a pattern or course of conduct designed to interfere with the free and natural development of the children’s love and respect for the other party.

16.	If either party intends to relocate from their present residence, he or she shall provide the other party with a minimum of thirty (30) days advance written notice of such relocation to permit modification of the terms and conditions recommended herein, if necessary.

17.	Both parties shall keep the other party informed at all times of their respective addresses and telephone numbers.

18.	Neither party will abuse alcohol while caring for the minor children and each will maintain a safe environment for the children.

19.	If available, the minor children shall have free acess to both parents by e-mail.

20.	The parties shall immediately consult with each other and school authorities and counsellors concerning the children’s educational status and plans.  The parties shall immedaitely take steps to implement any supplemental educational plans for the children, particularly for Christine, including plans for summer school, if recommended.

21.	The parties shall immediately consult with each other concerning enrolling  the children in at least one extracurricular activity.

22.	The parties shall immediately enroll in a parenting class or consult with a professional counsellor concerning their communication skills with each other, with an emphasis on the educational and health needs of the children.

		
BY THE COURT:

		_________________________________ 
		HONORABLE THOMAS A. JAMES, JR., J.