543 A.2d 566 | Pa. Super. Ct. | 1988
This appeal brings before us for the second time a child custody dispute between a parent and an unrelated non-parent. Mrs. Mary Modesto Pope appeals a March 17, 1988 Order of the Court of Common Pleas of Delaware County implementing a plan to restore to her custody of her three minor daughters. The trial court’s Order was a result of our Court’s decision in Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987), petition for allowance of appeal filed,
The first part of the rather arduous procedural history of this case was summarized in our earlier Opinion as follows:
This case commenced on March 25, 1985 when Dr. Burke, a former obstetrician-gynecologist, filed a petition seeking custody of Mrs. Pope’s three children, Amanda Marie, Rebecca Ann and Abigail Leigh Pope. On April 23, 1985, Mrs. Pope filed a petition for visitation and partial custody and on April 29, 1985, a response to Dr. Burke’s original petition and a cross-petition for custody. The parties entered into stipulations, eventually adopted as Orders of court, on May 10, 1985 and July 2, 1985, which temporarily placed physical custody of the children with Dr. Burke and allowed Mrs. Pope visitation four hours a weekend on alternate Saturdays and Sundays. On December 12, 1985, Mrs. Pope filed a petition for special relief, pursuant to Pa.R.C.P. 1915.13, requesting modification of the temporary custody Order and requesting an emergency Order for Christmas visitation. On December 18, 1985, the Honorable Howard F. Reed, Jr., ordered that Mrs. Pope have special visitation time with her children on Christmas day, 1985. On January 15, 1986, Dr. Burke filed a response to the December 12,1985 petition and a cross-petition for special relief pursuant to*470 Pa.R.C.P. 1915.13. On January 27, 1986, Mrs. Pope filed an answer.
In all, five hearings were held before the Honorable John V. Diggins, on January 28, February 27, April 21, June 5 and October 1,1986. On June 12,1986, Mrs. Pope filed a motion, pursuant to Pa.R.C.P. 1915.13, requesting entry of a partial custody Order. On June 18, 1986, Judge Diggins entered a temporary Order for partial custody, decreeing that Mrs. Pope have partial custody of her children each weekend from 12:00 noon on Saturday until 5:00 p.m. on Sunday. On August 27, 1986, Mrs. Pope filed a petition for contempt of the partial custody Order. Following the October 1, 1986 hearing, Judge Diggins directed Dr. Burke to comply with the previous temporary Order for partial custody. Finally, after the submission of post-trial briefs, on February 10, 1987, Judge Diggins filed an Opinion and Order awarding sole physical custody to Dr. Burke with visitation and partial custody rights to Mrs. Pope.
Burke at 490-491, 531 A.2d at 783 (footnotes omitted). Mrs. Pope appealed and on September 21, 1987, we vacated the February 10, 1987 Order and remanded for a new custody Order, consistent with our Opinion, to implement a plan to restore custody to Mrs. Pope. See Burke, supra.
On remand, the trial court acted promptly to set a rehearing date of October 8,. 1987; however, on October 1, 1987, in response to a petition by Dr. Burke, the trial court continued the rehearing until after the Pennsylvania Supreme Court rendered a decision on Dr. Burke’s petition for allowance of appeal. In effect, this stayed the judgment entered by our Court on September 21, 1987. Mrs. Pope appealed the stay Order to the Superior Court on November 12, 1987, which resulted in a per curiam Order by our Court, dated December 24, 1987, directing the trial court “to comply forthwith with this court’s judgment and [OJrder of September 21, 1987.” Subsequently, on February 3, 1988, the trial court heard argument for the purpose of establishing a schedule to return custody of the children to their mother.
The question now on appeal is whether the trial court’s implementation Order of March 17, 1988 is in substantial compliance with the standards set forth in our Opinion in Burke, supra. This calls for a review of the earlier custody Order, the parties’ proposed arrangements, and the Order now in question.
Under the February 10, 1987 Order we vacated, Dr. Burke was awarded sole physical custody. Mrs. Pope was given the right to the children every other weekend from 12:00 noon on Saturday until 5:00 p.m. on Sunday, as well as for two weeks in the summer. The holiday schedule began in 1987 with Mrs. Pope having the right to the children on Easter, Memorial Day, Fourth of July, Labor Day and Thanksgiving from 9:30 a.m. to 9:00 p.m. and from 12:00 noon on Christmas day until 9:00 p.m. This holiday schedule would alternate yearly, giving Dr. Burke the children on the enumerated days thereafter, except as to Christmas, when Mrs. Pope, on the alternate year, would have the children from noon on December 24th until noon on December 25th.
Both parties submitted their respective plans to transfer full custody to Mrs. Pope at the rehearing on February 3, 1988 and in proposed Orders to the trial court. Mrs. Pope proposed a comprehensive plan that would increase her custody rights to shared legal and physical custody of the children over a five month period ending with full legal and physical custody of the children in Mrs. Pope when school lets out at the end of June, 1988. Specifically, Mrs. Pope proposed the children would first be in her custody three
In comparison, Dr. Burke proposed a more indefinite schedule for returning the children to the mother. Dr. Burke recommended full legal custody remain with her until such time as Mrs. Pope shall have regained sole physical custody. Dr. Burke would also restrict the transfer of legal custody to Mrs. Pope on the contingency that the mother demonstrate proof of her ability to adequately maintain and support the children. The method for determining this would be to have Mrs. Pope and the children assessed, evaluated and counseled by Dr. Harold J. Byron, a
The trial court’s March 17, 1988 Order set forth its plan to restore custody to Mrs. Pope as follows:
ORDER
AND NOW, to wit, this 17th day of March, 1988, the following plan leading to restoring custody to the Respondent is hereby adopted by this Court:
1. Legal custody of the three children as the term is defined in the Shared Custody Act, 23 P.S. 101 et. seq. shall remain with [Dr. Burke] until such time as [Mrs. Pope] has demonstrated to the Court proof of her ability to adequately maintain and support the children.*474 Whenever practical, [Dr. Burke] shall confer with [Mrs. Pope] in making decisions.
2. Mother and children shall be initially analyzed and evaluated by Dr. Harold J. Byron to determine the fitness of these parties to comply with the custodial and visitation provisions of this Order and to continue counselling mother and children regarding the effects of the original separation of the mother and the children and a reconciliation among them. The cost of this service is to be borne 75% by mother and 25% by Dr. Burke, Respondent and Petitioner respectively. All financial arrangements with Dr. Byron to be made directly by [Dr. Burke] and [Mrs. Pope].
3. The parties shall share physical custody of the children as defined in the Shared Custody Act as follows:
a. Immediately the mother shall have custody of the children every other weekend from Friday at 6:30 p.m. to Sunday at 6:30 p.m.
b. Mother shall have custody every Tuesday and Thursday eveningfs] from 6:30 p.m. to 8:30 p.m. for the purpose of a family dinner.
c. At the end of the spring school term, the children to vacation with mother for nine consecutive days.
4. Children shall attend overnight camp at Camp Good News in Cape Cod, Massachusetts for the regular two sessions. Cost to be borne by [Dr. Burke].
5. During summer camp as detailed above, either party may visit the children.
6. Immediately upon return from camp, children shall be evaluated by Doctor Byron. Doctor Byron to concentrate on the issues as detailed in paragraph 3 above. Cost to be borne by [Dr. Burke].
7. During the month of May, 1988, [Mrs. Pope] shall have custody of the children for the first weekend of the month to include Mother’s Day. Said visitation to be from Friday at 6:30 p.m. to Sunday at 6:30 p.m.
*475 8. Mother shall have the children for a two week vacation after summer camp and before the beginning of the school year.
9. The remaining holidays shall be apportioned equally between the parties.
10. Children shall be enrolled in the County Day School of the Sacred Heart for one year. Cost to be borne by [Dr. Burke].
11. Matter to be reviewed by this Court in September of 1988.
Mrs. Pope argues that the trial court erred in continuing “legal custody” in Dr. Burke for an indefinite period of time because such an arrangement does not affirmatively move forward restoration of full legal and physical custody of the children in herself as directed by our Court in Burke, supra. In addition, she contends the trial court’s granting of partial custody rights in her was too restrictive and too closely mirrors the previous Order which we found inadequate in Burke. Lastly, Mrs. Pope argues the appointment of Dr. Burke’s hand-picked psychologist to report on issues already decided or in some cases not previously raised, was an abuse of discretion which is counterproductive to the goal of returning full custody to herself within a year. After a thorough review of the trial court’s action, we find the Order of March 17, 1988 to be inadequate, fundamentally flawed in some respects, and contrary to the directives we set forth in our earlier Opinion in this case.
We view the trial court’s making the shifting of legal custody contingent upon Mrs. Pope’s demonstrating “proof of her ability to adequately maintain and support the children” as adding a factual issue which has already been decided in the case and which serves only to maintain and prolong the mother’s inability to become a controlling influence in the children’s lives. Failing to give the mother immediate meaningful control of the children’s lives will only serve to continue the present situation without allowing a natural parent-child relationship to develop. In our earlier Opinion, we called for “[formulation of a plan
We stated in our earlier Opinion that a definitive plan should be established to “1) affirmatively move toward reunification as a goal, 2) provide psychological counselling to facilitate this progress, 3) gradually increase partial custody and 4) establish a time frame within which this process will be completed and full custody in the mother established,” and concluded that six months to one year would be an appropriate time frame under these circumstances. Id., 366 Pa.Superior Ct. at 503, 531 A.2d at 789. The trial court’s Order fails to take this course in a number of aspects.
First, as already stated, by failing to increase Mrs. Pope’s control and authority over the children, a move towards reunification is wholly incomplete. No provision was made for Mrs. Pope to have either access to her children’s school nor influence on their education. Considering the previous obstructions Dr. Burke placed on this crucial aspect of the children’s lives, by instructing school officials not to deal with the natural mother and not to keep her abreast of their school activities, we find this omission
Next, although the trial court’s Order does provide for greater physical custody in the mother than previously existed, it is not enough. The new Order spans a period of five and one-half months, providing for a review by the court in September of 1988. While it does provide an increase in the mother’s custody rights from the previous vacated Order, we find the increase marginal at best considering the span of time the new Order contemplates. The addition of Friday nights on the alternative weekends and two nights for dinner a week are good short-term increases in custody, but a more final schedule with greater rights over the same span of time would be more appropriate. We feel an Order granting Mrs. Pope greater physical custody rights in increasing increments more in line with Mrs. Pope’s proposal would better serve to bring about full custody in the mother. This will act to dispel the doubts these extensive legal proceedings may have instilled in the children as to their future. Therefore, on remand the trial court should firmly establish a plan which brings about full legal and physical custody in the next six months. We set the period of six months as a time frame due to the fact that eight months have already passed since our earlier decision in which we called for a period of six to twelve months for complete transfer of custody. Because Mrs. Pope has already been given some increase in custody rights since that decision, completion of the transfer should not take as long.
Lastly, we find the trial court’s appointment of Dr. Harold J. Byron and the apportionment of costs with respect to his services to be unsound. The record discloses that in the past, Dr. Burke’s privately procured psychologist had never talked to the mother and had reported findings in contravention to the jointly-chosen neutral psychologist. In order to alleviate any possible animosity the mother may understandably have towards being subjected to Dr. Burke’s hand-picked experts, the appointment of a com
While the trial court provided this Court with an Opinion to aid us in our understanding of his ruling in this matter, we find the explanation provided confirms the thrust of appellant’s position that there was de minimis compliance with implementation of our Order. There should be no further difficulty in this respect following this Opinion and remand.
The custody and visitation Order is, therefore, vacated and the case remanded for imposition of an Order consistent with this Opinion.
Jurisdiction relinquished.
. At the time of this writing Dr. Burke’s petition for allowance of appeal and an application for stay pending appeal with the Supreme Court of Pennsylvania are still pending. Because the Supreme Court has not taken action on Dr. Burke’s petition, we are able to address the merits of this appeal. See Pa.R.A.P. 1701(b)(2). Pennsylvania Rule of Appellate Procedure 2591(b) provides that an appellate court, upon its own motion or upon application, “may issue any appropriate order requiring obedience to or otherwise enforcing its judgment or other order.”
. In an Order dated April 22, 1988, President Judge Vincent A. Cirillo of the Superior Court established an expedited schedule for the filing of briefs, reproduced record, and listing for argument on May 10, 1988. In conformity with the “Fast Track” schedule for custody cases, this matter has received priority in our review after oral argument.
. We note that Amanda Marie was born June 8, 1974, Rebecca Ann was bom September 25, 1976 and Abigail Leigh was born April 1, 1979, making their respective ages approximately 11, 9 and 6 at the time of the petition for custody, 13, 11 and 8 at the time of the last appeal, and 13, 11 and 9 at the time of this appeal.