Joseph D. Pizzo, Plaintiff
v.
Kristen L Pizzo, Defendant
Docket No.: 77-2011-DR
Attorney for Plaintiff: Ronald M. Bugaj, Esquire
Attorney for Defendant: Thomas Mincer, Esquire
Decided By: Raymond L. Hamill, P.J.
Summary of the Case
This case came before the Court on cross petitions for primary custody of the parties= three minor children. After conducting two days of hearings, the Court made a number of Findings of Fact relevant to a discussion of the case, including: 1) that the parties= separation was marked by cross PFA=s, both of which resulted in final orders from Pike County; 2) both homes were reasonably clean and appropriate for the minor children; 3) that the relationship between the parties= oldest child and Mother was extremely strained because of a history of abuse on Mother=s part; 4) that counseling had been attempted several times but discontinued by Mother; 5) that the parties are unable to communicate with each other without resorting to name-calling in front of the children; and 6) that the middle child has special needs.
The Court=s discussion began with the standard and paramount concern of all custody cases, what is in the best interest of the children. McMillen v. McMillen, 602 A.2d 845 (Pa. 1992). In addition, the Court must consider and discuss the relevant factors from a list set forth in 23 Pa.C.S.A. ‘ 5328 in determining the best interest of the children. In this case, the Court determined that since the parties= households were fairly equal, Mother=s strained relationship with her oldest daughter impacted greatly on its decision since she could not reside with her mother and there was no compelling reason to split the children. See Custody of Myers, 363 A.2d 1242 (Pa.Super. 1976). As a result, the Court awarded primary physical custody of the children to Father.
The Court opined, AAs Father is willing and able to provide a suitable home for all three children and until Mother has addressed the issues which interfere with a meaningful relationship with R.P. in this Court=s judgment there is no other alternative.@ As set forth in Johns v. Cioci, 865 A.2d 931, 943 (Pa.Super. 2004): AThe question of suitability of the households is particularly important because, when the households are equally suitable, the preference of the child can tip the scales in favor of one or the other. (citations omitted). Even when the trial court gives little weight to a child=s preference, that preference may still be determinative if the households are equally suitable.@
Finally, the Court considered whether to grant shared legal custody to the parties given the parties= inability to cooperate enough to communicate with each other regarding the best interest of their children. However, the Court determined that there was some Aminimal communication which gives hope@ that the parties would be able to put aside their differences for the sake of their children, and shared legal custody was ordered.
