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J.R.M v. J.E.A

December 5, 2011


Appeal from the Order dated March 25, 2011, Court of Common Pleas, Jefferson County, Civil Division at Nos. 1192 2010 - C.D. and 1202 2010 - C.D.

The opinion of the court was delivered by: Donohue, J.:

J. A30019/11



J.R.M. ("Father") appeals the order entered by the Court of Common Pleas, Jefferson County, granting J.E.A. ("Mother") primary custody of their infant son, J.M.A. ("Child"), and imposing restrictions on his periods of partial custody. After careful review, we vacate and remand for further proceedings.

After dating for approximately one month, Mother and Father became engaged to be married. Two months later, they found out that Mother was pregnant. By that time, Mother and Father were experiencing trouble in their relationship. They separated soon thereafter.

After their breakup, Mother and Father had a very difficult time communicating with each other. To that end, Mother did not inform Father when Child was born. Upon learning that Mother had given birth to Child, Father contacted her so that he could have visitation with Child. Mother arranged for her employer, Steve Plyler ("Plyler"), to contact Father and arrange for Father to visit with Child. Father grudgingly arranged visits through Plyler, and began to visit with Child at various locations with Plyler and/or another individual present.

Mother filed a complaint for custody on December 10, 2010, seeking shared legal and primary physical custody of Child. On December 14, 2010, Father also filed a complaint for shared legal and primary physical custody of Child. A custody conciliation conference was held on January 5, 2011, which did not successfully resolve the custody matter, and the case was set for a hearing before a judge.

After the conference but before the custody hearing, the parties informally agreed that Father would visit Child on Tuesdays and Fridays from 5:00 p.m. until 8:00 p.m. and on Sundays from 10:00 a.m. until 12:30 p.m. at Mother's church in DuBois. Father lives approximately two hours away, in Glenshaw, and eliminated the Sunday visits because of the distance. He further routinely terminated the weekday visits an hour early, as Child exhibited signs of tiredness at around 7:00 p.m., which was close to his bedtime while at home with Mother.

Father has attended almost all of the 30 scheduled visits, with several cancelations for illness and inclement weather, and one where Father did not show. Mother is present in the church during the visits, but not in the room with Father and Child. At times, Father will solicit Mother's help in soothing or changing Child.

Mother is breastfeeding Child and contemplates that she will continue doing so until Child is eight months old. She is currently on leave from her job with Pepsi, and is working as a babysitter for Plyler's children. She resides in a basement apartment in Plyler's home. Father resides with a woman who is both his ex-wife and current fiance. He is employed in a management position at a YMCA in Indiana County, Pennsylvania.

A consolidated custody hearing on both petitions was held before the trial court on March 25, 2011. At the conclusion of the evidentiary hearing, the trial court granted the parties' request for joint legal custody of Child, awarded Mother primary physical custody, and ordered Father to have partial custody of Child as follows:

A. Until the child reaches the age of eight (8) months or is no longer breast feeding, whichever occurs sooner, Father will continue to have temporary custody three (3) days per week, mainly Tuesday and Friday from 4:00 p.m. to 7:00 p.m., and Sunday from 1:00 p.m. 4:00 p.m., with said periods of custody to be exercised either by the church in DuBois where the parties were meeting recently or such other location as the parties may agree.

B. During these periods of partial custody, Father will be entitled to private time with his son; although, Mother or any other suitable care giver [sic] may be in the general area but not in the same room.

C. When the child reaches eight (8) months of age or is done breast feeding [sic], whichever is sooner, parties will agree on a location for Father's periods of custody in the general vicinity of Indiana, Pennsylvania, and all his periods of time with the child will be expanded by one (1) hour each day as with specifics to be agreed upon by the parties.

D. The long term goal of this Court for Father is that when the child is of the appropriate age, the child should be able to visit Father at his home and at appropriate overnights.

Trial Court Order, 3/28/11, at ¶ 2.*fn1 The trial court further ordered that all communication between Mother and Father occur via email unless the parties otherwise agree. The trial court filed its findings of fact in support of its order on April 13, 2011.

Father filed a timely notice of appeal and concise statement of matters complained of pursuant to Pa.R.A.P. 1925(a)(2)(i) on April 25, 2011. The trial court did not file a written opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii). ...

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