After the second part of the hearing, each lawyer submitted their proposed “Findings of Fact and Conclusions of Law.” These were essentially draft orders that each side would have liked the judge to sign without modification. Requiring these was effectively a way for Judge Ruest to get the lawyers to do her job. Her final order copied portions from the two documents depending on how she felt. Her final opinion seemed to lift much more from Rose’s submission than Tonia’s, and she denied Rita’s petition to relocate.
The following is the opinion and order that Judge Ruest filed on August 21, 2013. As I said, it cherry-picked portions from the documents Rose and Tonia submitted. Again, most of the material came from Rose’s proposed findings of fact and conclusions of law since Tonia’s was, as usual, very much over-the-top and upset me a lot when I first read it. As usual, I will comment throughout, although I don’t strongly disagree with anything Judge Ruest wrote.
After some preliminary statements summarizing the issue…
OPINION AND ORDER
Presently before the Court is a Complaint for Custody and Notice of Proposed Relocation filed by Plaintiff Rita Mockensturm (Mother) on January 3, 2013. Mother seeks shared legal custody and primary physical custody of the minor children, Caleb James Mockensturm (D.O.B. 09/18/1998), Amanda Paige Mockensturm (D.O.B. 10/30/2001), and Amelia Mae Mockensturm (D.O.B. 04/22/2008). On January 18, 2013, Defendant Eric Mockensturm (Father) filed a Counter-Affidavit objecting to Mother’s proposed relocation. Mother and Father shared legal and physical custody until a Protection From Abuse (PFA) Order was entered on January 7, 2013, at which time Mother was awarded temporary custody of the children.
A hearing on this matter was held on June 11, 2013 and continued on July 10, 2013, and both parties have submitted briefs. The Court is now ready to render its decision.
The start is basically an overview of the relevant laws and standards established by the state for cases like this.
Discussion
“In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration lo those factors which affect the safety of the child …. “ 23 Pa.C.S.A. § 5328(a). “In determining whether to grant a proposed relocation, the court shall consider the following factors, giving weighted consideration to those factors which affect the safety of the child.” 23 Pa.C.S.A. § 5337. The party proposing relocation has the burden of establishing that the relocation will serve the best interest of the children as shown under the factors set forth in 23 Pa.C.S.A § 5337(h).
The Court will address each of the factors outlined in 23 Pa.C.S.A § 532B(a) and 23 Pa.C.S.A § 5337(h) in turn. Each party has the burden of establishing the integrity of his or her motives in either seeking the relocation or seeking to prevent the relocation.
…Judge Ruest now goes through each of the 15 categories she should consider when making her decision.
I. Custody-23 Pa.C.S.A § 5328(a)
1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
Mother and Father have significant difficulty communicating with one another, which affects their ability to encourage frequent and continuing contact between the children and the other party. Last summer, Mother took the children to Michigan for 6 weeks with less than 24-hours notice to Father, and remained reticent regarding her intentions to return the children to Pennsylvania after Father repeatedly inquired. More recently, Mother refused to let the children have cell phones in order to allow for more free access to Father, and told the children to lie to Father regarding their whereabouts.
Since proposing to relocate, Mother has not encouraged or permitted frequent and continuing contact between Father and the children. The day after filing her Proposed Relocation Notice, Mother filed a Protection From Abuse action against Father. Father then violated the PFA Order by texting Amanda. After being jailed for violating the PFA, the Court ordered a period of supervised visitation at the Child Access Center pending a court-ordered psychological evaluation of Father. During this period, Father was permitted one two-hour visit with the children each week at the Child Access Center. Twice, Mother cancelled these visits. The Court finds that her reasons for doing so were inappropriate, as she had taken the children to Michigan.
Father currently is allowed two visitations per week with Paternal Grandfather’s supervision. There is no evidence to suggest that Father would not encourage and permit frequent and continuing contact between Mother and the children.
I pretty much agree with Judge Ruest’s opinion here. It’s interesting to note that Judge Ruest explicitly references the petition’s timing to relocate and the petition for a protection from abuse order. I also recall Judge Ruest saying at one of the first violation hearings, “Isn’t this one of the PFA’s filed by those two friends that want to move their kids out of state?” She was, in fact, correct. One of Rita’s friends with four or five daughters wanted to move them all to Florida, and I think they concocted the same plan.
2. The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
Mother previously obtained a PFA Order against Father. Father then violated that PFA Order twice. First, he texted Amanda upon his release from jail. Second, he texted Mother from an unknown cell phone number. Additionally, Father showed poor judgment by posting about Mother on Facebook, indirectly posting about his children on a dating website, and setting inappropriate alerts on his cell phone which the children eventually saw. The Court takes such violations seriously, and recognizes the emotional toll that they have taken on Mother.
The Court does not believe that Father poses a continued risk of harm to the children or to Mother. Father’s psychiatrist testified that he has treated Father continually since 2003. Father’s depressive episodes each year while he sought tenure coincided with the start of school. The beginning of the school year does not appear to affect him as seriously now that he is tenured. Father’s hospitalizations coincided with learning that Mother had filed for divorce and was having an extramarital affair. Father’s psychiatrist testified that he sees improvement in Father’s condition since March 2013, and that he appears to be able to handle the stressors in his life better.
She’s got some things wrong here, as I texted Rita upon my release from jail for texting Amanda. I would argue that nothing I posted on Facebook was about Rita; they were my thoughts and had nothing explicitly to do with Rita. The joke about kids being a pain in the ass sometimes on Match.com was obviously beyond Judge Ruest’s understanding as someone without children.
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