LISA J. WHITESELL

	Plaintiff

vs

JAMES P. WHITESELL
		Defendant

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

CASE NO:  1436 OF 1997
CUSTODY

APPEARANCES:

JOHN McDANEL, ESQUIRE, Attorney for the Plaintiff
GREGORY T. MORO, ESQUIRE, Attorney for the Defendant
DEANNA PEALER, ESQUIRE, Attorney for the Minor Children

FEBRUARY 1, 2001.  JAMES, J.

FINDING OF FACTS, DISCUSSION, AND OPINION

The parties are the parents of three minor children.  By Order of Court dated December 15, 1998, the parties were granted joint legal custody of the children.  Plaintiff was granted primary physical custody, and defendant was granted partial physical custody, every other weekend and at certain other times. The matter is now before the court on defendant’s Petition for Modification of Custody, filed December 24, 1998, requesting that he be granted primary physical custody of the children.  There has been significant continuing litigation regarding custody that has regrettably delayed a full hearing of the case.1
A hearing on the modification petition was held on January 17, 24, and 30,  2001.2   At the hearing, defendant’s witnesses included:  defendant, himself; Daniel Miller (a psychologist); Becky Garrison (a guidance counselor at the Benton schools); Ronald Zaledonis (a guidance counselor and administrator at Benton schools); Yvonne McDonald (a Montour County Children and Youth Services caseworker); Ronald McMahon (a Montour County Children and Youth Services caseworker supervisor); Kerry Parks (a part-time Madison Township police officer); Gordon Cressley (mobile home park manager); Clarinda Broyan (former neighbor of plaintiff); Charles Fenstermacher (former neighbor of plaintiff); Dawn Bressler (former co-worker with defendant’s mother); Wendy Lizardi (defendant’s girlfriend); Sherry Kunkel (defendant’s mother); Jeffrey Kunkel (Sherry Kunkel’s husband).
Plaintiff’s witnesses consisted of plaintiff, herself; Jill Funi (a counselor for the children); and Michael Lizardi (plaintiff’s boyfriend).
   The court interviewed all three minor children.  All counsel also questioned the children.    
Plaintiff presented no exhibits.  Defendant presented exhibits consisting of photographs of defendant’s home and the children engaged in family activities; school records; custody orders, PFA documents, and other legal documents from various proceedings involving the parties; and numerous letters from the children to defendant and letters from plaintiff to defendant.

FINDINGS OF FACT

The court finds that the following facts have been proved:

1.	Plaintiff is Lisa J. Whitesell, age 35.  She lives at the Berlin Mobile Home Park, Benton, Columbia County, Pennsylvania, in a large mobile home.  Her boyfriend, Michael Lizardi, age 32, and the three minor children also reside in the dwelling.  The house is close to the Benton school that the children attend.

2.	Defendant is James P. Whitesell, age 36.  He resides at 261 Liberty Street, Danville, Montour County, Pennsylvania, which is approximately 25 miles from plaintiff’s residence.  He lives in the basement of the home owned and occupied by his mother Sherry Kunkel and her husband Jeffrey Kunkel.  The basement has been renovated to be a large apartment dwelling for defendant and the children.  

3.	The parties were married on August 30, 1984, and finally separated on February 10, 1998.  They are not divorced.

4.	The minor children are James Paul Whitesell, a seventh grader, born May 15, 1987; Jared William Whitesell, a fifth grader, born November 22, 1988; and Joel Michael Whitesell, a third grader, born May 8, 1992.

5.	Pursuant to the effective custody order dated December 15, 1998, plaintiff has primary physical custody of the children.  Defendant has partial physical custody on alternating weekends from Saturday at 9:00 a.m. to Sunday at 5:00 p.m.; every Tuesday from 6:00 p.m. to 8:00 p.m.; certain holidays; and two weeks each summer.

6.	Plaintiff and her boyfriend are disabled and collecting social security disability. Because of her disabilities, plaintiff does not drive a vehicle.  Michael Lizardi does the driving, including the driving to and from the custody exchanges.

7.	Defendant has his GED and has worked as a laborer at Hawkins Amoco for 15 years.  In high school, he was trained in horticulture, although he has not pursued work in that field.  Sherry Kunkel, age 53, has worked for over twenty years as a patient account specialist at Geisinger Medical Center.  Jeffrey Kunkel, age 59, has a steady job as a courier.  Defendant and his mother and stepfather all work dayshift, Monday through Friday.  Sherry and Jeffrey Kunkel have been married for seven (7) years.  Jeffrey had been a foster parent for twelve (12) years.

8.	Defendant was injured severely in an automobile accident in 1978.  The injuries have left him with some residual physical and neurological impairments.  He is slow in processing some information and has a poor memory.  He has a balance problem that keeps him from climbing ladders.  However, he is able to work steadily.  He is capable of caring for the children, although in an environment such as where he is living with a supportive mother and stepfather.

9.	Sherry Kunkel and Jeffrey Kunkel are willing to assist defendant with caring for the children.  They are both capable caregivers.

10.	Defendant’s home, where he has lived for three years, is three blocks from Danville High School, one-half mile from the elementary school, and about a mile from the middle school.  Defendant works across the highway from the middle school.  Defendant has a flexible schedule that allows him to take the children to school for a “Sack Program” for breakfast before school.  He is able to pick them up after school.

11.	Since the time of the parties’ separation, the children have been moved by plaintiff from the Bloomsburg School District to the Central School District to the Millville School District to the Benton School District.  Prior to the separation, Jimmy had been in the Danville School District and, along with Jared, in the Southern School District.

12.	All three children have learning disabilities and have been taking prescribed Ritalin for ADHD since the separation.  All three children have IEPs in school.  Presently, all three children are doing satisfactorily in school, with a great deal of help from school authorities.

13.	Both before and after separation, Plaintiff has been the main caregiver, actively involved with the children’s schools and medical care and needs.

14.	At and since the time of separation, plaintiff has had a relationship with Michael Lizardi, her boyfriend, with whom she and the children have lived since the separation.

15.	Sometime after the separation, defendant and Michael Lizardi’s wife, Wendy Lizardi, became entwined romantically.  Defendant and Wendy Lizardi see each other regularly on weekends.

16.	Michael and Wendy Lizardi are now divorced (since the parties’ separation).  They have two sons, ages 9 and 6.  Wendy has primary custody.  Their custody arrangement operates relatively smoothly.

17.	Since the time of the separation, the parties have been unable to develop a civil relationship with each other.  The problem is exacerbated by the presence of Michael Lizardi who actively adds fuel to an already difficult relationship.  Since the time of the separation, the parties and Michael Lizardi have caused the children great stress and anguish (and probably more) by their constant and vile actions.

18.	While much, much more civil than the parties and Michael Lizardi, Sherry Kunkel has engaged in making negative statements about plaintiff in front of the children.  She has been ordered to refrain from doing so.

19.	The parties were engaged in a violent relationship, on both sides, before they separated.

20.	Defendant has a history of alcohol abuse, although recently he has had it under control.  There is no indication that he has been using alcohol when he has custody of the children.

21.	Plaintiff is aggressive, explosive, and taunting.  Defendant overreacts to plaintiff’s actions. There is some question as to whether or not they could communicate civilly if Michael Lizardi were not involved so deeply in the custody scenario.  Michael Lizardi taunts defendant, who in turn, overreacts.  The parties cannot communicate civilly.

22.	Michael Lizardi has taken a .38 special (a revolver) to the custody exchanges, although he has not done so lately.  Most of the exchanges have resulted in heated arguments.  Michael Lizardi has a gun permit, and for a long time carried a gun, even around the children.

23.	Plaintiff has engaged in a pattern of intentionally trying to alienate the three children from their father, defendant, since the parties’ separation.  Michael Lizardi has been a willing and active participant in attempting to alienate the children from their father.

24.	Plaintiff and/or Michael Lizardi have made unfounded and false accusations against defendant regarding the children on several occasions to Children and Youth Services.

25.	Plaintiff and/or Michael Lizardi have made unfounded and false accusations to various police departments accusing defendant of crimes.

26.	Plaintiff and/or Michael Lizardi have made unfounded and false charges to Sherry Kunkel’s employer in an attempt to disrupt her longtime employment.

27.	Plaintiff has not informed defendant about the children’s school activities and academics, medical treatment, or anything related to the children. In fact, when she enrolled the children in school, she did not name the father, but named Michael Lizardi as the stepfather.  Defendant has not been as aggressive as he should have been pursuing this information.  However, plaintiff knew that he may not have the ability to be aggressive and should have kept him informed of the children’s activities, etc.

28.	Plaintiff has made it difficult for defendant to see the children every time she moved.

29.	Defendant and his mother wanted to take the children to Disney World during school in 1999.  Plaintiff refused permission, and defendant got a court order allowing him to do so.  For 2001, defendant wants to take the children on the trip again.  Plaintiff is refusing permission again, interpreting the earlier court order as saying that they could only ever go one time during the school year.

30.	Defendant gave the children Miami Dolphins hats.  Plaintiff told the children that the hats gave them lice, took the hats away, and shaved their heads.

31.	The children wrote many hateful letters to defendant in the fall of 2000.  Plaintiff and Michael Lizardi provided stamps for the letters and mailed them, without objecting to the contents.  They denied telling the children what to write. 

32.	Plaintiff refused to allow the children to visit defendant pursuant to the court order from early October 2000 through late December 2000, when the court issued an order directing her to do so.  

33.	Custody has gone relatively peacefully since late December 2000.  The children did not complain about their visits with their father, even though they had written the hateful letters.

34.	Plaintiff is inflexible to her approach to the custody order.  Her inflexibility is intended to obstruct defendant’s contact with the children.

35.	Defendant is more likely to be flexible with any custody arrangement.  He is much more likely to allow the children to have a good relationship with their mother than she is likely to allow with him.

36.	As a caregiver, plaintiff has allowed the children to run amok in neighborhoods where they lived.  Profanity is commonplace in plaintiff’s household.

37.	The children expressed a desire to stay with plaintiff.  Although they said that they did not want to go with their father, after recent visits they had no complaints.

38.	Father has a strong support network with his relatives and his mother and stepfather.

39.	Both homes provide adequate housing for the children.

40.	Neither party has made a substantial effort to solve the destructive problems that are adversely affecting custody and the children.

41.	The parties and the children are in significant need of continuing counseling and human services support.

42.	The children are personable and likeable boys.  However, if their “nurturing” continues in the same fashion as is has, they are doomed to a life of delinquency and misery.

43.	Plaintiff and Michael Lizardi are found to be not credible. 

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.

Any analysis of this case must be dominated by the brutal circumstances to which the children have been subjected.  Most significant is the obvious behavior pattern of plaintiff and her boyfriend designed to alienate the children from their father.  Defendant has reacted inappropriately to plaintiff and her boyfriend’s shenanigans.  However, without the despicably alienating actions of plaintiff and her boyfriend, these children would not have been exposed to this torturous period of their childhood.  As set forth in the Findings of Fact, plaintiff and her boyfriend have made numerous false and/or misleading accusations to the authorities about defendant.  They further tried to damage Sherry Kunkel’s employment with lies.  Their behavior has been inexcusable.  Plaintiff and her boyfriend’s attempts to damage the childrens' relationship with their father and grandmother are contrary to the best interest of the children.
Certainly, it is defendant and his mother and stepfather who are much more likely to encourage, permit, and foster frequent and continuing contact and physical access between the children and their mother.  There is no indication that defendant or his family would engage in parental alienation.  Their actions, while often very inappropriate, have largely been a reaction to plaintiff and her boyfriend’s deplorable behavior.
Both parents have adequate living facilities for the children.  Plaintiff and her boyfriend do not work and can be home for the children at all times.  Defendant and his family work dayshift jobs.  However, they have made proper arrangements to get the children back and forth to school and to take care of them during working hours.  The children are getting to the age where they are a little more self-sufficient.  Nevertheless, they still need constant monitoring, particular in light of their level of activity.
Switching schools again is a concern.  The Benton schools have done a fine job dealing with these children.  However, there is no reason to think that the Danville schools cannot provide similar services.  Although these unfortunate children have been shuffled from school to school over the years, one more switch is outweighed by all the other factors in this case.  In addition, defendant’s home has been stable for three years, and there is constant concern that plaintiff may move the children again at any time.  It would be wonderful to have the children go to a school where they can make stable friendships and stay at for the rest of their academic careers. 
Although the children expressed an interest in staying with plaintiff, their age and maturity significantly diminishes the weight of their opinion.  Recent cordial visits with their father belie the sentiments expressed in their hateful letters, which were stamped and mailed by plaintiff and her paramour.
To her credit, plaintiff has been active with helping the children at school and with their limited extracurricular activities.  With the assistance of his mother and stepfather, defendant can and should be able to assist the children in school and in extracurricular activities.  These children need intense help in school and parental involvement in their extracurricular activities, such as the Boy Scouts.  With the support of his mother, defendant can be involved with the children in school and in these activities.
One consideration in any custody determination is present and past violent and abusive conduct.  23 Pa.C.S. § 5303 (a)(3).  Plaintiff, her boyfriend, and defendant have all engaged in violent behavior in the past.  There is shared blame on this issue. The court is particularly concerned about the incendiary effect of Michael Lizardi’s presence in this mix.  It was totally irresponsible for him to carry a gun to custody exchanges.  That was clearly not in the best interests of the children and could have had tragic consequences.
The children must certainly be removed from the custody arrangement in which they have been trapped and used like chess pieces.  Under the circumstances and after consideration of all of the relevant factors, the court finds that the best interest of the children will be best served if they are in the primary physical custody of defendant under the guidelines set forth in the accompanying order. 

LISA J. WHITESELL

	Plaintiff

vs

JAMES P. WHITESELL
		Defendant

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

CASE NO:  1436 OF 1997
CUSTODY

ORDER

	AND NOW, this 1st day of February 2001, it is ORDERED AND DECREED as follows:

1.	The parties shall enjoy joint legal custody of their minor children, James Paul Whitesell, born May 15, 1987; Jared William Whitesell, born November 22, 1988; and Joel Michael Whitesell, born May 8, 1992.

2.	Defendant shall have primary physical custody of the children except during those times when plaintiff shall have partial physical custody as specified in paragraph three (3) below.  This provision shall remain in effect as long as defendant lives in the same residential building as his mother Sherry Kunkel, who is available to help with the nurturing and custody of the children.  If she is no longer available to help, this order shall be subject to review.

3.	Plaintiff shall have physical custody as follows:

a.	On alternating weekends from 6:00 p.m. on Friday until 6:00 p.m. on Sunday.
b.	Every summer for two (2) weeks, which shall not be consecutive.  Plaintiff shall give to defendant a 30 day written notice as to when the weeks will occur.
c.	In even numbered years from December 23 at 6:00 p.m. through December 25 at 2:00 p.m.; and from December 30 at 6:00 p.m. until the day before school resumes at 5:00 p.m.  In odd numbered years from December 25 at 2:00 p.m. through December 30 at 6:00 p.m.
d.	Easter Day on odd numbered years from 6:oo p.m. before the day until 6:00 p.m. on Easter Day.
e.	At Thanksgiving time (Thursday through Monday), in even numbered years, plaintiff shall exercise custody from 12:00 noon on Thursday to 12:00 noon on Saturday.  In odd numbered years plaintiff shall exercise custody from 12:00 noon on Saturday to 6:00 p.m. on Monday.
f.	Every Memorial Day and weekend in even numbered years; every Labor Day and weekend in even numbered years; and every Fourth of July and weekend in odd numbered years.  The weekends shall begin on Friday at 6:00 p.m. and end on Monday at 6:00 p.m. Defendant shall have the same weekends in the alternate years.
g.	Every Mother’s day from 6:00 p.m. on Saturday until 6:00 p.m. on Sunday. (Defendant shall have every Father’s Day from 6:00 p.m. on Saturday until 6:00 p.m. on Sunday).

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.  The exchange point shall be the Cole’s parking lot in Bloomsburg, Pennsylvania.  The parties shall not exit their respective vehicles or converse with each other at the exchanges unless absolutely necessary.  The parties shall not allow, permit, or encourage any other person to harass or taunt the other party at the exchanges.

6.	The parties shall have reasonable telephone contact with the 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 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 the children 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.	Defendant and plaintiff shall cooperate in enrolling the children in proper extracurricular activities and, to the extent possible, shall participate actively with the children in those activities.  The custodial parent shall take the children to their extracurricular activities if reasonable.

20.	Defendant, with the cooperation of plaintiff and the support of his mother and stepfather, shall seek and utilize any and all human resource programs that are available to help the children and the family, e.g., CMSU, Children and Youth Services, services available through the schools, and any available counseling services.  The parties shall cooperate in securing and implementing these services.  The parties shall continue any human resource progams presently utilized by the family and the children.  Intense counseling is recommended for the children.

21.	If available, the children shall have free access to both parents by e-mail.

22.	Defendant may take the children to Florida to Disney World for a week beginning March 2, 2001, and ending March 11, 2001.  Defendant, with the assistance of his family, shall make arrangements to assure that the minor children properly complete their schoolwork for that week.  Sufficient time each day should be devoted to the children’s studies while in Florida.

		BY THE COURT:

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