Watters v. Watters

ORIE MELVIN, J.,

dissenting.

¶ 1 I disagree with the Majority’s decision to affirm the custody Order which transfers primary physical custody of eleven-year-old Donald III to the Appellee. This divided custody arrangement not only separates Donald III from the Appellant who has proved to be an able primary caretaker, but from his only sibling. I believe the trial court abused its discretion by not fully considering these two factors in determining what was in this child’s best interests. Accordingly, I dissent.

¶ 2 “The role of the primary caretaker is a substantial factor which the trial judge must weigh in adjudicating a custody matter where the child is of tender years.” R.A.R. v. T.M., 434 Pa.Super. 592, 644 A.2d 767, 769 (1994). Here, the Appellant was the primary caretaker of the children. After their daughter was born, the parties decided the Appellant would resign from her employment, become a stay-at-home mother and be responsible for all of the children’s day to day needs. There is no dispute in the record the Appellant was a capable and able parent. Although the Majority acknowledges the Appellant has no specific shortcomings which would necessitate a change in custody, they find the current custody situation threatens the child’s mental state and stability. Majority Opinion at 969. I disagree.

¶ 3 Based upon my review of the custody proceedings in this case it is evident the child’s insolent behavior towards the Appellant did not begin until the parties separated, and the Appellee became more involved in his son’s life. Moreover, it appears the child was simply mimicking the *971Appellee’s insulting behavior towards the Appellant in an attempt to gain his favor. See Trial Court Opinion at 3. I find the decision to alter the existing custody arrangement only rewards the child for his contemptuous conduct and further divides the relationship between a dedicated mother and her son.1

¶ 4 Furthermore, the Order in question will effectively result in the separation of Donald III and his fourteen-year-old sister Brittany. Absent compelling reasons to the contrary, it is the policy of this Commonwealth that siblings should be raised together whenever possible. Hockenberry v. Thompson, 428 Pa.Super. 403, 631 A.2d 204, 205 (1993). In order to meet this standard, the evidence must indicate it was necessary to separate the children and the evidence was forceful in this regard. Cyran v. Cyran, 389 Pa.Super. 128, 566 A.2d 878, 880 (1989). Absent 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. Pilon v. Pilon, 342 Pa.Super. 52, 492 A.2d 59, 60 (1985).

¶ 5 The Majority finds the reasons to separate the siblings are compelling. Again, the Majority focuses on the child’s ill feelings and negative attitude toward the Appellant. However, they give little weight to the importance of the brother-sister relationship which I find is critical to a child’s development and sense of family. In the instant case, the children have always been raised together. Although they may have different interests because of their age and gender, the record from the custody proceedings reveals they play well together and are fond of one another.

¶ 6 Contrary to the Majority, I do not agree the “partial custody schedule or the children’s proximity at school” will permit them to have a fulfilling relationship as brother and sister. Majority Opinion at 970. The custody schedule espoused by the trial court does not foster the sibling bond. Pursuant to the schedule, visitation is divided between the out-of-custody parent. Presumably, this would allow the children to be together each weekend. However, aware of the estranged relationship between the Appellee and Brittany, the trial court did not order her to participate in the weekend partial custody arrangements. Therefore, the siblings will only be together during those times Donald III is required to visit with the Appellant. Furthermore, upon implementation of this new custody arrangement the children will remain in the Shenango school district; however, due to their grade-level, they will attend different schools. Therefore, I am unable to discern how they will have the opportunity to continue their relationship during school hours.

¶ 7 To benefit from the brother-sister relationship and maintain a long-lasting emotional bond, the children need to spend sufficient time together and experience the continuity of living as a family unit rather than as a house divided. The Majority discounts the value of the relationship between siblings here. But for the separation and ultimate divorce of the parties, these children would be raised together. A further division of the family by separating these children will deny them any opportunity to develop and enjoy a unique and enduring relationship with their sibling. The evidence in this case was not forceful nor did it impact a necessity to separate this brother from this sister. Because I find no compelling reason to separate these siblings, I dissent.

. I recognize the Appellant has attempted to remedy these problems with her son by attending family counseling sessions.