JASON A. HESS
	Plaintiff

vs

JACQUELINE F. SMITH
		Defendant.

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

IN CUSTODY

CASE NO:  1692 CV 1999

MICHAEL GREGOROWICZ, ESQUIRE, Attorney for the Plaintiff
STEPHEN ANDERER, ESQUIRE, Attorney for the Defendant

FINDINGS OF FACT, DISCUSSION, AND OPINION

March 9, 2000, James, Jr., J.

Plaintiff filed a Complaint for Custody with this court.  Under the local rules, the case was referred to a special master who conferred with the parties and their counsel and filed recommendations with the court on February 1, 2000. In paragraph 4 of the recommendations, the special master indicated that the case should be set for a prompt hearing, which was held before the court on the issue of custody on March 7, 2000.

At the hearing Plaintiff presented four witnesses:  Jacqueline F. Smith (Defendant); Jennifer Wagner (a speech therapist); Plaintiff, Jason A. Hess; Kelly Pauling, (cousin of Plaintiff); Stephanie Hess (sister of Plaintiff); Patsy Hess (Plaintiff’s mother) and Charlotte Worowski (Plaintiff’s grandmother).  Defendant presented two witnesses: herself, Defendant, and her mother, Illuma Bernstein, with whom she lives.  Defendant presented no exhibits.  Plaintiff presented one admitted exhibit, the speech therapy report.

FINDINGS OF FACT

After hearing and review of the testimony and evidence presented, the court finds the following facts:

1.	Plaintiff is Jason A. Hess, age 26, an adult individual residing at 300 Main street, Catawissa, Columbia County, Pensylvania, where he resides by himself.

2.	Defendant is Jacqueline F. Smith, age 20, an adult individual currently residing at 16 Apache Court, Absecom, Atlantic County, New Jersey 08201, where she resides with the minor child, Ryan William Hess, and her mother, Illuma Bernstein and her step-father.

3.	One minor child was born of the parties’ union, namely, Ryan William Hess, born October 3, 1997.

4.	Plaintiff is a native of Columbia County, Pennsylvania, mainly in the Catawissa area, where he has family, including his mother, father, sister, grandmother, and numerous other relatives. The relationship of Plaintiff with his family members is strong, and they are available to assist with childcare if necessary.  He has approximately two years of college education.  Since February 1999, he has worked at International Shared Services in Danville, Pennsylvania, doing computer work.  He normally works Monday through Friday and returns home from work at approximately 5:30 p.m.  

5.	Defendant is a native of New Jersey.  Her family mainly consists of her mother and stepfather, who live with Defendant and Ryan.  She also has relatives in Northern New Jersey, with whom she has a close relationship. The relationship of Defendant and her family is strong, and the family members are available to assist her with childcare if necessary.

6.	The parties met in approximately July of 1996 over the internet and physically on July 20, 1996.  Defendant was 16 years old and in high school, and Plaintiff was 22 years old.  The parties visited each other at their respective residences, and Defendant became pregnant in approximately January 1997. 

7.	Defendant finished high school, graduating in June 1997, and Plaintiff moved to New Jersey to live with Defendant and her mother and brother shortly thereafter.  Defendant had a part-time job and Plaintiff secured a full-time job.

8.	Plaintiff moved back to Pennsylvania in January 1998 to attend school.  Defendant stayed in New Jersey because the parties were going to live with Plaintiff’s parents and her dog was not allowed to live there.

9.	During 1998, Ryan lived with Defendant and her family in New Jersey.  Plaintiff visited regularly (except for some short periods of time in the summer of 1998, when a strain developed and Plaintiff and his mother sought legal counsel in New Jersey).

10.	All the time that Defendant lived with Ryan in New Jersey, she would not allow Plaintiff to bring Ryan to Pennsylvania because she feared “kidnapping”, although she did not believe Plaintiff would do any such thing.

11.	While the parties resided together, they both shared the care of Ryan.  While it is clear that Defendant was very active in the care of Ryan, the same is true of Plaintiff. Both parties are found to be caring, loving, devoted parents. However, Defendant’s housekeeping skills need improvement, and Plaintiff did not spend enough time with Defendant and Ryan while they lived in Pennsylvania.

12.	Although Defendant was reluctant, she moved to Pennsylvania in February of 1999, for the sake of Ryan and to try to establish a family unit.  They lived in an apartment with Ryan.

13.	Defendant was not able to adjust to living in Pennsylvania.  Defendant eventually became isolated in Pennsylvania because she felt that Plaintiff was not home with her enough and they did few things together.  She became lonely.  She missed her mother, family, and friends.  The parties themselves did not communicate well.

14.	In December 1999, Defendant left Pennsylvania and decided to stay in New Jersey.  On December 23, 1999, Plaintiff and his sister came to New Jersey and tried unsuccessfully to forcibly take Ryan back to Pennsylvania.  There was an unfortunate scuffle at Defendant’s residence. 

15.	Plaintiff started this custody action, and since the special master’s hearing in late January 2000, Plaintiff has had partial Physical Custody of Ryan every week from Thursday at 7:30 p.m. until Sunday at 7:30 p.m., with a couple exceptions.

16.	Reconciliation of the parties is unlikely.

17.	Plaintiff is now living in an apartment in Catawissa, Pennsylvania.  He has adequate accommodations for Ryan, and has the support of his family to help with Ryan’s care.

18.	Defendant is now living with her mother and stepfather in southern New Jersey.  She has adequate accommodations for Ryan.  Her mother watches Ryan when Defendant is working.  Ryan attends a “play” school a couple hours, two days a week, and will likely be attending pre-school later this year.

19.	Defendant is now working at Balley’s in Atlantic City as a secretary.  She works days and her mother is always available to provide care for Ryan.  The pay and benefits at Balleys are good and health insurance is available for Ryan.

20.	It is clear that Plaintiff’s mother, sister and other relatives have hostility toward Defendant.  Likewise, Defendant’s mother has also exhibited some hostility toward Plaintiff’s relatives.  The parties themselves do not appear to have the same hostility.

21.	In Pennsylvania, Plaintiff’s mother and family will be a significant factor in Ryan’s life, and in New Jersey, Defendant’s mother will be a significant factor in Ryan’s life.

22.	Plaintiff’s mother and family and Defendant’s mother and family have the ability to provide Ryan with positive guidance and assistance.  Both Plaintiff’s mother and Defendant’s mother have graciously contributed time and economic aid for the benefit of Ryan and the parties.

23.	Defendant’s return to New Jersey was done inappropriately, and Plaintiff’s attempt to return Ryan to Pennsylvania by use of force was inappropriate.  However, both acts appear to be aberrations for these parties, who both have the best interests of Ryan in mind.  

24.	Neither party appears to have an interest in alienating the affections of Ryan from the other.

25.	Both parties can afford the care of Ryan, and both parties have appropriate living arrangements for Ryan.

26.	Defendant has been the primary caregiver for Ryan.  She is well aware of his needs and routines of daily living.  Plaintiff is not as aware of the needs or daily routines of Ryan.

27.	The parties have been meeting approximately half way between their residences to exchange custody pursuant to the special master’s recommendation.

28.	Both Plaintiff and Defendant are found to be credible, although on some issues their perceptions are somewhat different.

29.	The parties are found to be fit as parents.

30.	Ryan may have a speech development problem.  Neither party made any significant attempts to address this possible problem prior to the custody action, although Plaintiff noticed it and Defendant spoke to her doctor about it.  The possible problem should be addressed immediately by a professional. 

31.	Defendant moved back to New Jersey for reasons that would significantly benefit Defendant and Ryan, and was not done on a whim.  Defendant’s move to Pennsylvania was a trial move.  

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, 601 A.2d 352, 353 (1991).

All parties agreed on the record that this case was spawned because Plaintiff did not want to live in New Jersey and Defendant did not want to live in Pennsylvania.  Counsel for the parties have alluded to a threshold analysis under Plowman v. Plowman, 409 Pa. Super. 143, 597 A.2d 701 (1991), as to whether it is in the best interest of the custodial parent to move out of the jurisdiction.  The parties have also alluded to the three-prong test under Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), to determine whether a custodial parent and child may relocate. The three Gruber considerations are:

1.	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.
2.	The court must establish the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it.
3.	The court must consider the availability of realistic, substitute visitation arrangements, which will adequately foster an ongoing relationship between the child and the non-custodial parent.

In our case the custodial parent had not been decided and there had been, in essence, joint custody.  Yet, the principles of Gruber and Plowman are the same, particularly since this is a “geographical” case. See McAlister v. McAlister, 2000 WL 174893 (Pa.Super. 2000). However, this is not a true “relocation” case.  Defendant and Ryan had more of a connection to New Jersey than to Pennsylvania.  The move to Pennsylvania was ostensibly permanent, but clearly Defendant was not sure about the permanency.  The parties clearly did not have a meeting of the minds on the location of their family home.

	Yet a Gruber analysis in this case does not prevent the relocation of Defendant if she is the custodial parent.  The move to New Jersey was not based on a momentary whim and has the potential, under the circumstances, of substantially improving the life of Defendant and Ryan.  A move will not decrease the quality of life of the child, and may improve it, particularly by removing the hostility and tension that may affect the child if Defendant were forced to remain in Pennsylvania.  The motive of Defendant for the move is understandable.  She became isolated in Pennsylvania, had no family in the area, was lonely, and wanted to be near her family.  In Gruber, the mother was permitted to move with the children due to her severe depression and minimal contacts with family and friends where she had been living.

In our case, realistic custody arrangements can be made to foster an ongoing relationship with both parents.  The travel time puts some burden on both parents.  However, the custody schedule will allow each parent plenty of time to develop a strong and healthy relationship with Ryan before he begins school.

The court has scrutinized the two existing competing custodial environments and the two primary family units, one in Pennsylvania with Plaintiff and one in New Jersey with Defendant.  See McAlister, supra at 3.  The best interest and welfare of Ryan will be best served if Defendant has primary physical custody of him in her environment, and if Plaintiff has significant temporary physical custody on a regular basis.  Both parties are fit caregivers, and both environments have support systems to help them with Ryan.  Both parties have adequate income to take care of Ryan.  Importantly, both parents have the interest and commitment to play a significant role in Ryan’s life regardless of the custody arrangement.  However, there will be a tendency to have a more hostile relationship toward the other parent if Ryan is primarily in Pennsylvania. In addition, the court must give weight to the fact that Defendant has clearly been the primary caregiver since Ryan’s birth.  See Gonzalez v. Gonzalez, 337 Pa.Super. 1, 486 A.2d 449 (1984). 

Defendant did not act properly when leaving the state without resolving the custody issue under Gruber and Plowman.  Likewise, Plaintiff acted improperly and actually endangered Ryan when he went to New Jersey to try to snatch him from Defendant.  It is believed that these actions are aberrations for these parties. In addition, past misconduct by a parent is not controlling where a parent is otherwise presently fit.  Vicki N. v. Josephine N. 437 Pa. Super. 166, 649 A.2d 709 (1994).  Furthermore, Defendant was very credible when she indicated that she wants Plaintiff to play a major role in Ryan’s life.  During her testimony she was very considerate and often complimentary of Plaintiff. 

The order in this case will not address the issue of school since school is not yet in issue.  However, this order envisions Ryan attending school in New Jersey with alternate arrangements for custody being instituted, and with liberal contacts with both parents.

JASON A. HESS,	              IN THE COURT OF COMMON 
			    PLEAS OF THE 26TH JUDICIAL
Plaintiff		    DISTRICT, COLUMBIA COUNTY 
Vs			    BRANCH, PENNSYLVANI
			    CIVIL ACTION - LAW
JACQUELINE F. SMITH,	    

	Defendant.	    CASE NO:  1692 CV 1999

ORDER

	AND NOW, this  9th day of March, 2000, it is ORDERED AND DECREED as follows:

1.	Primary physical custody of the minor child, Ryan William Hess, born October 3, 1997, shall be with Defendant.

2.	The parties shall enjoy joint legal custody of the child.

3.	Plaintiff shall have partial physical custody as follows:

a.	Every other week from Wednesday at 7:30 p.m. until Sunday at 7:30 p.m.  If the Monday following the Sunday is a national holiday, Plaintiff shall have physical custody until Monday at 7:30 p.m. 

b.	Two consecutive full weeks each summer, with Defendant to also have two full weeks each summer.  Each party shall give to the other party thiry (30) days written notice as to when those weeks would occur.

c.	Even numbered years from December 23 at 7:30 p.m. until December 25 at 7:30 p.m.  Defendant shall have the same period in odd numbered years.

d.	During a long weekend as set forth in 3.a. above in odd numbered years at Thankgiving and even numbered years at Easter.  Defendant shall have the same period in even numbered years and odd numbered years, respectively.

e.	During a long weekend as set forth in 3.a. above on Father’s day.  Defendant shall have the same period of time on Mother’s day. 

4.	Plaintiff shall have additional periods of partial physical custody with the minor child, Ryan, at such other times and places and under such circumstances as the parties may agree.

5.	The parties shall equally share all transportation necessary to implement this Order.  The transfer shall occur at the Lansdale exit of the Pennsylvania Turnpike or at such other place as the parties may agree.  If Lansdale is substantially inconvenient for either party, and if the parties cannot agree to an alternate location, the court will entertain an approriate petition.

6.	The parties shall have reasonable telephone contact with their minor child when he is in the custody or partial 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 child, and each shall have the ability to consent to emergency medical treatment when the child is in the custody of such party.

9.	If circumstances from time to time prevent the exercise of partial physical custody or visitation, the parties shall provide one another with timely and reasonanble notice as to the existence of such circumstances and an equal amount of make-up partial physical custody or visitation 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 child.

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

12.	The term “illness”, as used herein, shall mean any disablity which confines the 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 child and each of the parties and to promote a feeling of love and affection between the child and the other party.

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

15.	Neither party shall engage in a pattern or course of conduct designed to interfere with the free and natural development of the child’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 child and each will maintain a safe environment for the child.

19.	Defendant is directed to have Ryan evaluated for his possible speech problems within twenty days of the date of this order.  Defendant shall fully apprise Plaintiff of the details of the evaluation process and shall give him full access to all records and shall forward to him all reports.  Defendant shall also pursue any services that may be available to Ryan for any speech problems that he may have.  Plaintiff may have a similar evaluation conducted, at his option.  The parties shall fully cooperate in any evaluations and follow-up action.

20.	Within sixty (60) days of this order, each parent shall attend at least one parenting session with a qualified counsellor and provide each other with certification that they have satisfactorily attended the session(s) in a good faith a effort to improve their parenting skills.

		BY THE COURT:

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