TODD A. MOYLE,

	Plaintiff
vs

SHIRLEY J. MOYLE,
		Defendant

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

CASE NO: 1788 of 1997 

APPEARANCES:
W. KIM HILL, ESQUIRE, Attorney for Plaintiff
GARRY WAMSER, ESQUIRE, Attorney for Defendant

May 20, 2002.   JAMES, J.

FINDINGS OF FACT, DISCUSSION, AND OPINION

Pursuant to a custody order dated March 20, 1998, based on the Special Master’s recommendations, defendant was granted primary physical custody of the parties’ minor children, Katelyn Moyle, born May 29, 1991; Haylee Moyle, born September 13, 1992; and Mitchell Moyle, born March 7, 1994.  The parties were granted joint legal custody.  Plaintiff had partial physical custody pursuant to a schedule which included alternate weekends, an evening each week, certain holidays, and two weeks in the summer.
On August 21, 2000, plaintiff filed a Petition to Modify Custody.  A Special Master was appointed to review the matter and make recommendations.  By order of October 13, 2000, the Special Master recommended maintaining the status quo.  Plaintiff filed exceptions.  This court ordered home studies and directed the parties to file a praecipe for a hearing when either party was ready to proceed.  A full hearing was scheduled and held before this court on May 15, 2002.
At the hearing plaintiff’s witnesses included plaintiff himself; plaintiff’s spouse, Valerie Moyle; Gloria Budman, Valerie Moyle’s mother; Abby Beach, a neighbor; plaintiff’s sister, Antoinette Kester; and Dennis Lewis, a friend. Plaintiff presented two exhibits in the form of records from a PFA and a criminal complaint.
Defendant’s witnesses included defendant herself; Tracy Schoeffler, a friend; Alice Snyder, defendant’s grandmother; Hope Miller, defendant’s sister; and Candace Howe, a “blended worker”, i.e., a social worker at the children’s school.  Defendant’s three exhibits consisted of the children’s school records.
     The three children were questioned by the court, with follow-up questions by counsel for both parties.  The court’s two exhibits consisted of a home study for each party’s residence. 

FINDINGS OF FACT

The court finds that the following facts have been proved:

1.	Plaintiff is Todd A. Moyle, age 31, born January 18, 1971.  He lives on W. First St., Bloomsburg, Columbia County, Pennsylvania, in single house in a nice residential area.  The house has plenty of room for all occupants.  However, the quarters are tight when the three children at issue stay with plaintiff.  Plaintiff plans on adding one more bedroom and possibly adding a bedroom in part of the finished third floor which would provide sufficient room for six children.  Plaintiff lives with his second wife, Valerie Moyle; their sons Brandon (age 2) and Brady (age 3 months); and Dustin Bucher (age 6), Valerie Moyle’s son by a prior marriage.  Dustin’s natural father sees him on alternate weekends.  Plaintiff and Valerie Moyle were married three years ago.  Valerie Moyer operates a hair salon out in a first floor room in the house.

2.	Defendant is Shirley Coladonato, formerly Shirley J. Moyle age 30.  Since the parties separated, she has lived in various locations, primarily Orangeville, the Bloomsburg area, Washingtonville, and for the last year, in Danville.  Defendant just purchased a house (in her father’s name for financial reasons) across the street from her present house on Church Street in Danville, Pennsylvania.  With the help of friends and family she has remodeled it and planned on moving into the house on the night of the custody hearing.  The house is spacious and has plenty of room for defendant and the children.  The first floor acts primarily as defendant’s daycare center.

3.	The parties were married on July 6, 1991.  There were three children born of the marriage: Katelyn Moyle, born May 29, 1991; Haylee Moyle, born September 13, 1992; and Mitchell Moyle, born March 7, 1994.   After several years of marital problems, the parties separated in 1995.  The parties were eventually divorced by court decree.  Pursuant to a custody order dated March 20, 1998, based on the Special Master’s recommendations, defendant was granted primary physical custody of the parties’ minor children.  The parties were granted joint legal custody.  Plaintiff had partial physical custody pursuant to a schedule which included alternate weekends, an evening each week, certain holidays, and two weeks in the summer.    

4.	The children had resided with both parties’ mothers and with plaintiff for a short time after the parties separated.  Since approximately 1996, the children have resided primarily with defendant. Plaintiff has had regular and continuing contact with the children since the parties separated.  Defendant and plaintiff have been cooperative in maintaining the custody schedule, although personally, the parties do not communicate well.

5.	Plaintiff presently has a steady job at Kawneer, where he works second shift.  In June or July of 2002, he will move to third shift so that he can be with the children after school and in the evening, and he will be home in the morning in time to help them get to school.  Valerie Moyle works in her hair salon in their home with flexible hours from 10:00 a.m. until 6:00 p.m., Monday through Friday, and a few hours on some Saturdays.

6.	Defendant works as a licensed daycare center operator out of her house.  She presently has three shifts, twenty-four hours each day, including some weekends.  However, the number of children varies from a maximum of 5 at a time to only a couple children, depending on their parents’ schedules.  Defendant’s grandmother helps her during the day shifts, and another friend helps at other hours during primarily the second shift.  To her great credit, defendant is pursuing a degree in early childhood development though a distant learning program which she just started and intends to complete.

7.	Plaintiff had two Protection From Abuse Petitions filed against him by defendant, in 1996 and 2000.  He stipulated to an order prohibiting him from contacting defendant on both occasions, and on the first occasion was subject to an agreed on structured visitation schedule with Mitchell, although he disputes abuse and it was “indicated” but not “found.”  There are indications that plaintiff had a tempestuous relationship with defendant when they were together and that plaintiff was temperamental in the relationship.  However, there is no indication that he has been unusually temperamental outside of their relationship and for at least the last two years.    

8.	Defendant had developed alcohol problems that caused her severe personal problems in the mid-1990’s.  She went through a rehabilitation program.  She continues to drink one to three times each week when she goes out with her friends.  She does not have a driver’s license as a result of a DUI conviction in the mid-1990’s, but she continues to drive on occasion.  She had remarried Ed Coladonato in 1997, but separated in 1999 and eventually divorced.  She lived with another man in Washingtonville from approximately 1999 until December of 2001.  She now only lives with the children.

9.	Defendant was arrested in January of 2002, for driving while her license was suspended – DUI related, but pled guilty to criminal mischief.  She disputes driving.

10.	Despite the personal problems that these parties have had individually and together, both are sincere people who love their children.  

11.	When the parties were married, each was a primary caretaker at various times, depending on their job schedules.

12.	The children attend the Danville elementary school.  For three years they had gone to the Central Columbia Schools.  For a year they went to the Liberty Valley Elementary School, before they moved to Danville in 2001.  The children have an unusual number of absences from school.   

13.	All three of the children are bright and will have a good future if properly guided and reared by their parents.  Katelyn is articulate and mature beyond her years.  Haylee is bright and personable.  Mitchell is a typical second grade boy, full of energy.  All three children are pleasant, polite, personable, and likeable.  However, all three children need guidance to fulfill their full potential.  None of the children participates in significant extracurricular activities, except for cheerleading for the two girls. 

14.	When the children are with their mother on weekends, they often spend Saturday nights at defendant’s sister’s house and go to her church on Sunday.  She also has taken them to Bible School the last two summers.

15.	All three children said that they wish to stay living with their mother.  However, Katelyn is the only child mature enough to make a well-reasoned choice.  None of the children gave mature or well-reasoned rationale for their opinion regarding custody.  All three children appeared to be “coached” to some extent regarding their opinions.

16.	Plaintiff is a stricter disciplinarian than defendant.  Defendant has a much less structured approach to child-rearing.  Defendant has developed a warmer rapport with the children, although she is somewhat permissive.

17.	Both parties have decent family and friendship networks to help with the children. 

18.	All three children clearly love both their father and their mother.  

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

20.	All of the witnesses in this case are credible on most matters.

21.	Both parents have been significant caregivers.

22.	Both plaintiff and defendant 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.

In this case, both parents have been loving and devoted to the three children, each in their own manner.  Despite the marital and personal difficulties of the parties, they have essentially a civil approach to the exchange of the children and making adjustments in schedules.  To that end, defendant is the more flexible.
Both homes have deficiencies and advantages.  Plaintiff’s home is in a quiet residential area.  However, the home is small for two adults and six young, growing children on a full time basis.  Defendant’s home is in an adequate neighborhood and has plenty of room for the three children.  However, defendant has a habit of changing locations, and this court has grave concerns about another relocation for these children.  
  Both parties are able to care for the children and be with them before and after school.  Both parties offer appropriate care for the children, although plaintiff’s schedule and approach to the children is more structured and disciplined than defendant’s. 
Both parties have a support network to help with nurturing the children.  Defendant’s support network is largely found in a few friends and a few family members.  However, some of her fiends may be transitory.  Furthermore, this court is concerned about her male relationships which have been tumultuous and temporary.  Plaintiff’s support network is found in his family, friends and neighborhood.  His spouse is a stable, hardworking person, who helps provide structure and substance to their family.  
This court is concerned with the educational future for these children.  The three children are bright children who must be given every opportunity to succeed academically.  Although they are doing well at this point, their academic success seems to be attributable to their innate intelligence as opposed to a structured approach to academics.  None of the children are significantly involved in extracurricular activities.  As they enter their middle school years, this free time may translate to trouble for them and their lack of academic discipline may diminish their academic success.  Defendant’s “grand central station” daycare environment and her uncertain personal life requires her to give extra effort to the nurturing of the children.  She is wonderful with them personally with her warmth and love, but she must provide them with the extra attention they need to develop fully without being left to fend for themselves, as she did as a young person.  Plaintiff’s more disciplined approach to the children may provide for better structure and study skills, and, thus, academic achievement.  However, this may prove difficult with six small children in the house.    
The children have told this court in no uncertain terms that they desire to primarily live with their mother.  “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).  
Katelyn is a very mature and articulate almost eleven-year-old girl.  Her reasons to stay with her mother were simply based on the bond that obviously existed between her mother and the children.  Her resolve is strong.  However, Katlyn’s bond to her mother appears to be based on her instinct to help her mother and protect her mother.  Haylee and Mitchell are too young and immature to have the court consider their preferences with any significant weight.    Although not controlling, this court gives some weigh to the preference of the Katelyn.
Plaintiff’s motives for attempting to modify custody are well-reasoned.  He is rightly concerned about the lack of stability in the children’s lives and the problems that this instability may create as they head toward adolescence.  He is properly concerned about defendant’s multiple relocations, her tumultuous personal life, and her drinking habits and irresponsibility, as evidenced by her unlicensed driving.  
This court believes that a modification of custody is needed, whereby both parents can be involved in these wonderful children’s lives, to the end that they may flourish personally.  In modifying this order, this court is considering the following:
1.	Six children in plaintiff’s house during school time may be overwhelming for all involved.  Although plaintiff and his spouse will certainly try to raise six children full time, Katelyn, Haylee, and Mitchell may not get the personal attention that they need.

2.	Both parents need to spend significant time with these children.

3.	Plaintiff’s job leaves him free during much of the day when he is not sleeping.  Thus, he will be available for the children on weekends and all day during the summer when they are home.

4.	Defendant needs more time to herself to establish her business properly and to address her personal life.

5.	Although the children clearly need the love,  structure, discipline, and watchful eye of their father, they also need the warmth and love that their mother provides.

6.	These children need to be involved in extracurricular activities.  The parties live close enough that each can help facilitate involvement in activities such as soccer, little league, scouts, band, etc.

7.	Defendant is somewhat more flexible in allowing modifications of schedules for custody when necessary.  The parties should learn to communicate better in this regard and may need some counseling. 
      
After consideration of all of the relevant factors, the court finds that the best interest of the minor children would be served by a custody arrangement that provides for shared legal and physical custody and with primary residence with defendant during the school year and primary physical residence with plaintiff during the summer and on three weekends each month.  This order will be subject to automatic review by this court within the next year or upon praecipe of either party.  This order envisions that the children will maintain good grades, have good attendance at school, and be involved in extracurricular activities.  This order also envisions the children staying in the Danville School District throughout their school years, unless good reasons are provided for moving.  

TODD A. MOYLE,

	Plaintiff
vs

SHIRLEY J. MOYLE,
		Defendant

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

CASE NO: 1788 of 1997 

ORDER

	AND NOW, this 20th day of May 2002, it is ORDERED AND DECREED as follows:
1.	The parties shall enjoy joint legal custody of their minor children, Katelyn Moyle, born May 29, 1991; Haylee Moyle, born September 13, 1992; and Mitchell Moyle, born March 7, 1994, and shared physical custody subject to the physical custody schedule set forth herein.

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

3.	Plaintiff shall have physical custody as follows:

a.	On the first, third, and fourth weekends of each month from 6:00 p.m. on Friday until 6:00 p.m. on Sunday.  Between the first and third weekends, Plaintiff shall have custody one evening from 5:00 p.m. until 7:30 p.m. on an evening to be agree upon by the parties.  If the parties cannot agree, it shall be the Thursday evening after the first weekend. 

b.	Every summer from one week after school ends until two weeks before school resumes.  Defendant shall have physical custody during the summer on the first, third, and fourth weekends of each month from 6:00 p.m. on Friday until 6:00 p.m. on Sunday, and on Thursday evening after the first weekend from 5:00 p.m. until 8:00 p.m.  Each parent shall have physical custody during the summer for an uninterrupted 10-day vacation period with the children.  However, said 10 day period must be utilized in conjunction with and include their Friday to Sunday custody period.  Each parent shall give to the other a 30-day written notice as to when the 10-day vacation will occur.

c.	In even numbered years from December 24 at 3:00 p.m. through December 25 at 2:00 p.m.  In odd numbered years from December 25 at 2:00 p.m. through December 26 at 7:00 p.m.

d.	New Years Day, Memorial Day and Labor Day in even numbered years and Easter, Fourth of July, and Thanksgiving Day on odd numbered years, 5:30 p.m. the evening before the holiday until 7:30 p.m. the evening of the holiday.

e.	Every Father’s day from 5:30 p.m. on Saturday until 7:30 p.m. on Sunday. (Plaintiff shall have every Mother’s Day from 5:30 p.m. on Saturday until 7:30 p.m. on Sunday).

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

g.	The parties shall have additional periods of partial physical custody with the minor children at such other times and places and under such circumstances as the parties may mutually agree upon from time to time.

The holiday schedule shall supercede the regular custody schedule to the extent it conflicts with the regular schedule.  The ten (10) day vacation period shall not supercede weekend custody periods.

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

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

7.	The parties shall exchange all information pertaining to the health, education, and welfare of the minor children; 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 the children, each party shall have the right to visit the children 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 child shall have free acess to both parents by e-mail.

20.	The parties shall seek court approval before changing schools for the children, unless both parties agree in writing.

21.	The parties shall make extraordinary efforts to enroll the children in approriate extracurricular activities. Each party shall accommodate those activities while the children are in his or he custody.  It is envisioned that the regularly scheduled extracurricular activites will be normally in the Danville area since that is where their school is located.  

22.	The parties shall engage in counselling with a family counsellor to be agreed upon by the parties.  The purpose of the counselling shall be to discuss implementation of this order and to improve communication between the parties in the best interest of the children.  The cost of the counselling shall be divided equally between the parties.

23.	This court will review this order, and modify it if necessary, after a hearing which shall be scheduled upon praecipe filed by either party within twelve (12) months of this date.  

		
BY THE COURT:

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