ROLLIN DAVID YOHEY, JR.,

	Plaintiff

vs

REBECCA DANIELLE YOHEY,
		Defendant.

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

IN CUSTODY

CASE NO:  1026 CV 1999

ALICE T.K. CORBA, ESQUIRE, Attorney for the Plaintiff
RICHARD KNECHT, ESQUIRE, Attorney for the Defendant

FINDINGS OF FACT, DISCUSSION, AND OPINION

March 8, 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 November 3, 1999.  Plaintiff filed exceptions to the recommendations, and a hearing was held before the court on the issue of custody on February 29, 2000.

At the hearing Plaintiff presented four witnesses:  Defendant Rebecca Danielle Yohey; Plaintiff Rollin David Yohey, Jr.; Dennis Dietterick (a friend of Plaintiff); and Maria Yohey (Plaintiff’s mother).  Defendant presented two witnesses:  Defendant and her boyfriend with whom she lives, Jason Guillory.  Defendant presented no exhibits.  Plaintiff presented four exhibits including a proposed settlement agreement, a calendar, a copy of a plane ticket, and a telephone bill.

FINDINGS OF FACT

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

1.	Plaintiff is Rollin David Yohey, Jr., age 29, and an adult individual residing at 1517 Third Avenue, Berwick, Columbia, Pennsylvania, where he resides with his mother Marie Yohey and his sister Yvonne Yohey, age 27.

2.	Defendant is Rebecca Danielle Yohey, age 22, an adult individual currently residing at 4136 Windsor Spring Road, #206, Hephzibah, Georgia, where she resides with the minor child, Savannah E. Yohey, and Defendant’s boyfriend, Jason Guillory, age 22.

3.	One minor child was born of the parties’ union, namely, Savannah E. Yohey, born April 29, 1998.

4.	Plaintiff is a native of Berwick, Pennsylvania, where he has family, including his mother, sister, and several aunts and uncles.  The relationship of Plaintiff with his family members is strong, and they are available to assist with childcare if necessary.  He is a graduate of Clarion State University where he secured a degree in mass communications.  After school he enlisted in the Air Force where he spent four years based mainly in Georgia, where he met Defendant.  

5.	Defendant is a native of Georgia.  Her family mainly consists of her father, stepmother, stepbrother, and stepsister, all of whom live relatively near where Defendant and the minor child live.  Although strained on occasion, the relationship of Defendant and her family is relatively strong, and the family members are available to assist her with childcare if necessary.

6.	The parties met in approximately May of 1996 in Georgia, when Plaintiff was in the Air Force.  The parties were married on December 11, 1997, and Savannah was born April 28, 1998.  

7.	The parties lived together in Georgia from September of 1997 until late July of 1998 when Plaintiff was discharged from the Air Force.  Plaintiff wanted to move back to Berwick to be near his family and his roots.  Defendant wanted to stay in Georgia but reluctantly moved to Berwick with Plaintiff and Savannah because she felt obligated.

8.	In Berwick Plaintiff received unemployment for five or six months, and defendant worked as a waitress and pursued education and on-the-job training to be an EMT. In January of 1999 Plaintiff took a job as a security guard.

9.	For the first five or six months that the parties were in Berwick, they lived with Plaintiff’s mother, Maria Yohey.  They then moved into their own apartment.  

10.	A significant strain developed between Defendant and Plaintiff’s mother, which became a little less pronounced when they were no longer living in the same residence.  Defendant does not like Plaintiff’s mother, but acknowledges that Plaintiff’s mother is kind to Savannah.  It was quite obvious from Plaintiff’s mother’s testimony that she is quite hostile toward Defendant. Defendant complained to Plaintiff about his mother’s perceived interference in the parties’ parenting of Savannah.  Although it is found that Plaintiff’s mother was well intentioned, particularly in light of the close living arrangements, Defendant’s perceptions about her mother-in-law’s interference were not baseless. 

11.	While the parties resided together, they both shared the care of Savannah.  Plaintiff’s mother also provided care when necessary. While it is clear that Plaintiff was very active in the care of Savannah, the same is true of Defendant. Both parties are found to be caring, loving, devoted parents.

12.	Defendant was not able to adjust to living in Berwick, and requested that the parties move back to Georgia.  Plaintiff wanted to stay in Berwick.  Defendant eventually became isolated in Berwick because she felt that Plaintiff was not home with her enough and they did few things together.  She became lonely.  She told Plaintiff her cocern, but he did not seem to understand the problem.

13.	On May 7, 1999, Defendant and Savannah returned to Georgia for what Plaintiff thought would be a visit.  On May 19, 1999, Defendant informed Plaintiff that she and Savannah would not be returning.  

14.	The parties had conversations about possible reconciliation during the summer of 1999, but the geographical differences of opinion were too strong and reconciliation became unlikely.

15.	Plaintiff is now living with his mother and sister. Savannah has her own bedroom available to her when she is in Pennsylvania.  He is employed at Deluxe Homes in a laboring type of job, but is looking into police or security type work. He works from 6:30 a.m. to 2:30 p.m. Monday through Friday.  His mother and sister help to care for Savannah when he is not home. Plaintiff spends a great deal of time with Savannah when she is in Pennsylvania.

16.	Defendant is now living with her boyfriend, Jason Guillory, with whom she expects a child in July 2000.  He wants to marry her, but she has not committed since she is still married to Plaintiff. Defendant, Savannah, and Jason will be moving to a three-bedroom townhouse within two months in the same vicinity in Georgia.

17.	Defendant is about to start working as a receptionist/secretary for a masonry company owned by Jason’s father.  She will be paid $350 per week and will be able to bring Savannah to work with her. Her hours are approximately 8:00 a.m. to 3:00 p.m.

18.	Plaintiff may have another child born out of wedlock.  However, a paternity determination has not been finalized.

19.	Jason has another child born out of wedlock.  He and the mother of the child have an amicable relationship, and he frequently has custody of the three-year-old child.

20.	The parties lived together in Georgia for ten months. Their entire relationship in Georgia lasted twenty-six months.  The parties lived together in Berwick approximately ten months.

21.	The parties were both tense with each other during the marriage and sometimes acted inappropriately.  However, none of the complained-of-acts significantly affected Savannah.

22.	In Berwick, Plaintiff’s mother will be a significant factor in Savannah’s life, and in Georgia, Jason will be a significant factor in Savannah’s life.

23.	Defendant’s return to Georgia was done inappropriately.  

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

25.	Defendant made a proposal to resolve this matter in January of 2000.  The proposal acknowledged that both parties should have significant contact with Savannah.  It is found through the document and Defendant’s testimony that she intended the issue of schooling (at school age) to be her option, either at the Berwick public schools or at a private school which could be in Georgia.

26.	Savannah was baptized in the Catholic religion in Pennsylvania and is now being raised in the Episcopalian faith.  She attends church regularly with her mother.  There is no reason to believe that Defendant or Plaintiff would not make religion a part of Savannah’s life.

27.	The parties have been sharing custody of Savannah since November 1999 and have met half way, in Virginia, to exchange custody pursuant to the special master’s recommendation, approximately monthly.

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 essentially equally fit as parents.

30.	Both parties were significant caregivers.

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 Georgia and Defendant did not want to live in Berwick.  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 has not been decided, but the principles 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.  The parties had more of a relationship in Georgia than in Berwick.  The move to Berwick 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 Georgia was not based on a momentary whim and has the potential, under the circumstances, of substantially improving the life of the Defendant.  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 Berwick.  The motive of Defendant for the move is understandable.  She became isolated in Berwick, 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 Savannah before she begins school.

The court has scrutinized the two existing competing custodial environments and the two primary family units, one in Berwick with Plaintiff and one in Georgia with Defendant.  See McAlister, supra at 3.  The best interest and welfare of Savannah will be best served if Defendant has primary physical custody of her 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 Savannah.  Both parties have adequate income to take care of Savannah.  Importantly, both parents have the interest and commitment to play a significant role in Savannah’s life regardless of the custody arrangement.  However, there will be a tendency to have a more hostile relationship toward the other parent if Savannah is primarily in Berwick family environment.  In addition, Defendant proposed a liberal custody arrangement to Plaintiff, showing her willingness and desire for Plaintiff to have a significant role in Savannah’s life. See 23 Pa.C.S.A. sec. 5303. 

Defendant did not act properly when leaving the state without resolving the custody issue under Gruber and Plowman.  However, 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).  In this case Defendant has exhibited contriteness for her acts with her custody proposal and reasonableness.  During her testimony she was very considerate and often complimentary of Plaintiff. (Plaintiff was likewise generally decent toward Defendant in his testimony.)

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

ROLLIN DAVID YOHEY, JR.,	    IN THE COURT OF COMMON 
			    PLEAS OF THE 26TH JUDICIAL
Plaintiff		    DISTRICT, COLUMBIA COUNTY 
Vs			    BRANCH, PENNSYLVANI
			    CIVIL ACTION - LAW
REBECCA DANIELLE YOHEY,	    

	Defendant.    	    CASE NO:  1026 CV 1999

ORDER

	AND NOW, this 8th day of March, 2000, it is ORDERED AND DECREED as follows:

1.	Primary physical custody of the minor child, Savannah E. Yohey, born April 29, 1998, 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.	For three weeks each February from 2:00 p.m. on the first Sunday in February until 2:00 p.m. on Saturday, three weeks later.
b.	For three weeks each April (beginning with April 2000) from 2:00 p.m. on the first Sunday in April until 2:00 p.m. on Saturday, three weeks later.
c.	For six weeks each summer beginning at 2:00 p.m. on the second Sunday in June until 2:00 p.m. on Saturday, six weeks later.
d.	For three weeks each October from 2:00 p.m. on the first Sunday in October until 2:00 p.m. on Saturday, three weeks later.
e.	For three weeks weeks each December from 2:00 p.m. on the first Sunday in December until 2:00 p.m. on Saturday, three week later.  On even numbered years the three week shall be extended to December 28 at 2:00 p.m.

4.	Plaintiff shall have additional periods of partial physcal custody with the minor child, Savannah, 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 Salem, Virginia or at such other place as the parties may agree.

6.	The parties shall have reasonable telephone contact with their minor child when she 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 reasoanble 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 frequesntly 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.

		BY THE COURT:

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