LEROY F. FORCE

	Plaintiff

vs

PAMELA R. FORCE
		Defendant

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

CASE NO:  925 OF 2001

APPEARANCES:
DANIEL P. LYNN, ESQUIRE, Attorney for the Plaintiff
GARRY WAMSER, ESQUIRE, Attorney for the Defendant

June 5, 2002.   JAMES, J.

FINDINGS OF FACT, DISCUSSION, AND OPINION

On August 31, 2001, plaintiff filed a complaint for custody requesting primary physical custody of the parties’ minor son, Brian Force, born September 22, 1987.   A Special Master was appointed to review the matter and make recommendations.  By order of September 18, 2001, the Special Master recommended that plaintiff be granted primary physical custody of Brian.  The master recommended defendant be granted primary physical custody of the parties’ other minor child, Brandon Force, born August 28, 1996, with plaintiff to have partial physical custody on alternating weekends, every Wednesday evening after school until 8:00 p.m., certain holidays, and two weeks each summer.  It was recommended that Brian should visit with defendant alternating weekends from 6:00 p.m. on Friday until 6:00 p.m. on Saturday at defendant’s sister’s house.  
Plaintiff filed exceptions.  Both parties sought primary physical custody of Brandon, while defendant deferred to Brian’s wishes and requested counseling for Brian, hoping that counseling would lead to more frequent and more meaningful contact between her and Brian.    A full hearing was scheduled and held before this court on June 4, 2002.
At the hearing plaintiff’s witnesses included plaintiff himself; Darla Orzo, plaintiff’s sister; Kathy Arreola, a friend and neighbor; and Butch Marconi, a friend.  Plaintiff presented three exhibits:  progress reports and school records for the children and a certificate that plaintiff attended the Kid’s First counseling program.  
Defendant’s witnesses included defendant herself; Chris Aikey, her paramour; and Angela Kipple, her sister.  Defendant presented no exhibits.
Brian was questioned by the court, with follow-up questions by counsel for both parties.  The court’s one exhibit was a psychological evaluation report by psychologist Carol Hidlay.  Counsel stipulated to the entry of the report without the necessity of the psychologist’s testimony. 

FINDINGS OF FACT

The court finds that the following facts have been proved: 

1.	Plaintiff is Leroy F. Force, age 36, born November 6, 1965.  He lives on Main Street, Benton, Columbia County, Pennsylvania, in one side of a double house in a residential area.  The house has plenty of room for all occupants, including the children.  Plaintiff lives with Brian and, on alternating weekends, with Brandon. Plaintiff works as a laborer for a masonry contractor, where he has been employed for two months.  His hours of employment are normally 7:00 a.m. until 3:30 p.m. Monday through Friday.  He is a high school graduate.

2.	Defendant is Pamela R. Force, age 33.  After the parties separated in August of 2001, she lived with her sister and the children for a few weeks.  She then moved in with Chris Aikey, who became her paramour.  At first she and both children resided with Mr. Aikey.  After a brief period of time, Brian moved back with plaintiff. Defendant, Mr. Aikey, and Brandon all have lived in one side of a double house on State Street, Millville, Columbia County, Pennsylvania.  The house has plenty of room for all occupants, including the children.  Defendant works at the Millville Health Care Center Monday through Friday, normally from 5:30 a.m. until 2:00 p.m.    

3.	The parties were married April 21, 1986, and separated in August of 2001.  There were two children born to the parties:  Brian Force, born September 22, 1987, and Brandon Force, born September 28, 1996.  After their separation, defendant retained custody of the two children for a brief period of time.  Pursuant to an oral agreement, the parties divided custody of the children, with defendant retaining custody of Brandon and plaintiff taking primary physical custody of Brian.  The parties alternated weekend custody of both children with one parent.  However, Brian has infrequently visited with defendant.  He refuses to visit defendant’s home because of the presence of Mr. Aikey.         

4.	Chris Aikey has been divorced for three years.  He has two children (ages 8 and 5) who primarily live with his ex-wife. By an amicable agreement, he regularly sees his children on Thursday evenings and on alternating weekends.  He regularly works as a laborer at Milco Industries, normally Monday through Friday starting around 7:00 a.m.  He takes Brandon to a certified daycare center at 6:45 a.m.  The daycare center gets him to kindergarten where he stays until just before noon.  He then goes back to the daycare center where defendant picks him up after work at 2:00 p.m.  During the summer, Brandon is at daycare the entire time.

5.	Brandon started kindergarten at the Millville schools.  He was a young kindergarten student and had some academic troubles in school.  Thus, the teachers and defendant have agreed that it is in his best interest to complete another year of kindergarten.  If he lives primarily with plaintiff he will attend Benton schools.  Each school is close to the parties’ respective homes in Benton and Millville.

6.	Brian is completing eighth grade at the Benton schools, where he has attended for quite some time.  After his parents separated, his grades dropped precipitously.  He was clearly preoccupied by the separation and the turmoil between the parties.  Through his school, for several months he has attended an alternative program to improve his grades and concentration.  His grades have improved dramatically, and he will enter ninth grade at Benton schools in the regular educational program in the fall of 2002.   

7.	Both parties have a significant network of family and friends to supply support and nurture to the children.

8.	Defendant’s sudden separation from the household in August of 2001 was a traumatic event for the parties and the children, particularly Brian.  There was little testimony for the reasons for the departure, although there were clearly severe problems brewing between the parties for quite some time.  Defendant filed a PFA, which, although contested by plaintiff, was stipulated upon advice of counsel.  Defendant’s sudden relationship with another man so shortly after her separation showed poor judgment on her part vis-à-vis the children.

9.	Defendant has cancelled too many appointments to visit with Brian.

10.	Plaintiff has harbored and continues to harbor severe animosity toward defendant and Mr. Aikey.  Plaintiff’s hate is clearly reflected in the hatred that Brian expresses for Mr. Aikey.  Brian is seriously adversely affected by plaintiff’s continuing hostile attitude.

11.	Mr. Aikey is a hard-working, well-organized person.  Although he permitted defendant to move in with him less than two months after the parties’ separation, he has done nothing else to realistically alienate Brian.  He is nurturing toward Brandon, although not divisive in Brandon’s relationship with his father.  

12.	Brian, a teenager, has an understandable anger about his mother’s precipitous actions in separating and moving in with another man within two months.  However, his anger is unnecessarily fueled by his father’s extremely hostile attitude.  His mother has given plaintiff and Brian fuel for this anger by not conscientiously making all of her scheduled visits with Brian.

13.	Brian did not visit with his mother for five months until recently.

14.	Brian is a fine young man.  He is very polite and caring and decent.  He expresses love for both his mother and his father.  His anger at the situation that he finds himself in is directed at Mr. Aikey, and is somewhat extreme and a bit misplaced.  His mother handled the separation poorly and his father has used her poor judgment to help alienate Brian from her.         

15.	Both of the children have good potential and will have a good future if properly guided and reared by their parents.  However, both children need guidance to fulfill their full potential.  

16.	Brian has indicated that he wishes to stay with Plaintiff.  His reasons are well-reasoned under the circumstances.  However, Brian wishes to visit with his mother without the presence of Mr. Aikey.  This attitude is not well-reasoned and is promoted by his father.  Counseling and time will be necessary for this situation to be put into proper perspective for this nice young man.

17.	Brian needs to be involved in more extracurricular activities at school and/or outside of school.

18.	Both children clearly love and respect 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. 

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 two children, each in their own manner.  However, this court is concerned that father’s hostility to defendant and her paramour has already helped to alienate Brian.  If plaintiff has primary custody of Brandon, Brandon may very well fall prey to this same alienation trap.  Defendant is more likely to encourage, permit, and allow frequent and continuing contact with the noncustodial parent.
Both parties are able to care for the children, either by themselves or with the help of responsible family members.  Both of the parties are hard workers.  
Both parties have a support network to help with nurturing the children.  Each party has adequate and reasonable care for the children when they are at work.      
This court is concerned with the educational future for these children.  The children must be given every opportunity to succeed academically.  Both parties seem to be addressing these needs with the school authorities.  However, Brian’s sudden decline in his academics was borne of the infighting between his parents and should never have occurred.  Each needs to be vigilant of their children’s education.  This court is concerned that a nice young man like Brian is not involved in activities outside of school. He needs to be engaged in activities that allow him to positively develop skills and to avoid being preoccupied with family problems that his parents should be solving without him in the middle.    
     Brian expressed to this court where they wish to live.  Brandon is too young.  “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).  Brian has indicated that he wishes to stay with Plaintiff.  His reasons are well-reasoned under the circumstances.  However, Brian wishes to visit with his mother without the presence of Mr. Aikey.  This attitude is not well-reasoned and is promoted by his father.  Counseling and time will be necessary for this situation to be put into proper perspective for this nice young man.  This court hopes that both parents will act appropriately to help heal Brian’s wounds without inflicting more psychological trauma upon him.
One of the biggest considerations in this case is the separation of Brian and Brandon. They have been close brothers in spite of the nine year age difference.  There is a strong policy in our law that in the absence of compelling reasons to the contrary, siblings should be raised together whenever possible.  “Absent compelling reasons to the contrary, the policy of this Commonwealth has been that siblings should be raised together whenever possible. …  The threshold for this standard is that the evidence must indicate it was necessary to separate the children and the evidence was forceful in this regard.  …  Without these compelling reasons, the children should be raised together in one household, which permits the continuity and stability necessary for a young child’s development.”  Ferdinand v. Ferdinand, 763 A.2d 820, 823-824 (Pa.Super. 2000) (citations omitted), appeal denied, 784 A.2d 118 (Pa. 2001).  However, in this case, the court finds that there are compelling reasons for keeping the status quo.  Mainly, plaintiff may attempt, consciously or subconsciously, to alienate Brandon from defendant, as Brian has been unnecessarily alienated.  At this point, Brandon is young enough to have avoided the trauma that Brian has had to endure.  This court will not allow the same to happen to Brandon.  With liberal partial custody, both boys can maintain a bond, particularly if Brian is able to visit more frequently with his mother.
This court believes that a custody schedule is needed, whereby both parents can be involved in the children’s lives, to the end that they may flourish personally.  In establishing this order, this court is considering the following:
1.	The concern that Brian has been unnecessarily alienated from his mother and that the same could happen to Brandon.
 
2.	Both parents need to spend significant time with these children.

3.	The children should spend significant time together.

4.	The personal and educational needs of the children need more personal attention.

5.	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, church, etc.

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 with primary physical custody of Brian with plaintiff and primary physical custody of Brandon with defendant, and with each to have significant partial physical custody with the noncustodial child.    

LEROY F. FORCE,

	Plaintiff
vs

PAMELA R. FORCE,
		Defendant

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

CASE NO: 925 of 2001 

ORDER

	AND NOW, this 5th day of June 2002, it is ORDERED AND DECREED as follows:
1.	The parties shall enjoy joint legal custody of their minor children, Brian Force, born September 22, 1987, and Brandon L. Force, born September 28, 1996.

2.	Plaintiff shall have primary physical custody of Brian Force and defendant shall have primary physical custody of Brandon L. Force, except during those times when the other party shall have physical custody as specified in paragraph three (3) below.

3.	The non-primary physical custodian of a child shall have temporary physical custody as follows, on a schedule that assures that both children are together during temporary physical custody periods:

a.	Weekends – Alternating weekends from 5:00 p.m. on Friday until 6:00 p.m. on Sunday.

b.	Weekdays – Every Wednesday from 4 p.m. until 7:00 p.m. (Brandon with plaintiff).  Every Thursday from 4 p.m. until 7:00 p.m. (Brian with defendant).

c.	Summer - Every summer, Brandon shall be with Plaintiff for three consecutive weeks, and Brian shall be with defendant for three consecutive weeks.  Unless the parties agree otherwise, Brian’s time with defendant shall begin one week after school is out.  Brandon’s time with plaintiff shall begin on Sunday of the third full week of July. Each parent shall have physical custody during the summer for an uninterrupted 10-day vacation period with the children, which shall supersede Wednesday or Thursday custody periods.  During the three week period, the noncustodial party shall have temporary physical custody on the second weekend of the three week period from Friday at 5:00 p.m. until Sunday at 6:00 p.m. and on each Wednesday from 4:00 p.m. until 7:00 p.m.  If the children have camps and extracurricular activities to attend during the summer, the party who has physical custody during that time shall make certain that the children attend the camps and extracurricular activities.

d.	Christmas – Plaintiff shall have custody in odd numbered years from December 24 at 3:00 p.m. through December 25 at 2:00 p.m. (Plaintiff shall have custody on even numbered years during said times.) In even numbered years, plaintiff shall have custody from December 25 at 2:00 p.m. through December 29 at 7:00 p.m. (Defendant shall have custody during odd numbered years during said times.)  If defendant is working during her stated custodial times, plaintiff shall have custody during Christmas Eve and/or Christmas Day, and appropriate make-up time shall be established.

e.	Holidays – Defendant shall have custody on 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.  Plaintiff shall have custody on the alternate holidays at said times.

f.	Defendant shall have custody every Mother’s Day from 6:00 p.m. on Saturday until 7:30 p.m. on Sunday. (Plaintiff shall have custody every Father’s Day from 6:00 p.m. on Saturday until 7:30 p.m. on Sunday).

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

h.	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.	The parties shall equally share all transportation necessary to implement this order.  Neither party shall leave his or her vehicle at the time of the exchange.  Neither party shall bring their paramour or significant other to the exchange point.  

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 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.

21.	The parties shall forthwith make arrangements to enrol Brian in a counseling program to address issues arising out of the parites’ separation.  The parties shall equally divide the cost of the counseling.  If the parties, through their couselor cannot agree upon a counselor, the court will appoint a counselor upon written request of either party.  Both parties shall cooperate in the counseling program and shall participate if requested by the counselor.  

22.	The court will be very hesitant to enforce Brian’s participation in partial custody by contempt until a report with recommendations is issued by the counselor.    

			
BY THE COURT:

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