Katherine Pascal v. Jeffrey Pascal (2010)

AMENDED MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION TO MODIFY VISITATION AND CUSTODY (180), MOTION FOR CONTEMPT (179) AND AMENDED MOTION TO MODIFY (185)

In the original Memorandum of Decision, dated July 21, 2010, page 4, number 13, states that “the parties shall follow the proposed holiday schedule of the GAL (schedule A attached hereto).”   Schedule A was inadvertently omitted in the original memorandum of decision.   This amended memorandum of decision includes same.

Procedural Background

A review of the record reveals that the parties were divorced pursuant to a separation agreement dated August 8, 2008.   There are two minor children, Abigail Pascal born July 17, 2001 and Matthew Pascal born November 23, 1999.   The wife was granted sole custody of the minor children and the husband was granted reasonable rights of access with holidays, special days and vacation access to be determined by the parties.   The parties have been unable to communicate, cooperate or co-parent with one another.   The father has and continues to seek expanded access including but not limited to joint custody and an equal sharing of time with the children.   The mother resists those efforts and claims that the children need just one stable home and that they should “visit” with their father.   A Guardian ad litem (GAL) was appointed for the children on June 9, 2009.

The GAL and the parties, represented by counsel, appeared before this court on October 16, 2009 at which time interim orders were entered and thereafter to November 19, 2009 wherein further interim orders were entered.   The matter was continued until December 18, 2009 at which time the court issued a memorandum of decision dated December 22, 2009 giving to the mother sole custody and expanding and normalizing the father's access as follows:

1.  The mother shall have sole custody of the minor children with primary residence with the mother.   She shall consult with the father regarding educational, religious, medical, curricular and extra-curricular decisions.   She shall keep the father apprised of all such activities and supply him with schedules, team rosters and activities.

2. The father will have every other weekend with the children commencing Friday after school until Monday at school commencing January 8, 2010.   If there is no school on a Friday, his time will begin at noon and if there is no school on Monday, his time will end at noon.

3. Commencing March 2, 2010, he shall have additional time with the children from the end of school on Tuesday until the beginning of school on Wednesday each week.   If there is no school on Tuesday, his time will begin at noon and if there is no school on Wednesday, his time will end at noon.

4. The parents shall enter into co-parenting counseling and share the cost equally.   They shall submit names of potential therapists to the GAL and if they are unable to agree, the GAL shall select the therapist.

5. The children shall engage in therapy with Dr. Masciolek.

6. The parties shall have reasonable telephone and Internet contact with the children on the days that the children do not sleep at their home.   The telephone call should occur on or about 6 p.m., or other mutually agreeable times.   This parent-child contact shall not be used for the parties to communicate or discuss their own issues;  it is parent-child time only.

7. The parties will set up and utilize www.ourfamilywizard.com as a means of communication.

8. The children shall not be allowed upon the father's lawn mowing equipment or be within close proximity to such equipment when it is running.

9. Neither parent will utilize the children for a conduit of information, disparage the other parent or significant other of the other parent or discuss adult or court issues with the children.   Neither party shall question the children regarding the other parent, inappropriately discipline the children or take away extracurricular or sporting activities as a means of discipline.

10. Both parents are allowed to participate in school activities and extracurricular activities.   Each parent will insure that extracurricular and sporting activities take place as scheduled when the children are in their care except that the parents will choose the scope and frequency of religious activities to be enjoyed by the children when the children are in their respective care.   Each parent will insure that the children's homework is completed when the children are in their care.

11. Neither parent will consume alcohol in the children's presence or be under the influence of alcohol or drugs while the children are in their care.

12. These orders will be explained to the children by the GAL as opposed to either parent.

13. The parties shall follow the proposed holiday schedule of the GAL (schedule A attached hereto) which has been amended so as to give the father Thanksgiving in odd years and Thanksgiving to the mother in even years and to give Easter to the mother each year.

14. All drop-offs and pickups are to be prompt.

15. The husband shall pay $292.04 to the children's Early Bird day care provider within 30 days.

16. Both parties will make arrangements to pay their share of the ongoing day care expense directly to the day care provider in a prompt and timely manner.

The parties returned to court for an evidentiary hearing on the defendant's motions to modify custody, visitation, and access and on his motion for contempt alleging that the plaintiff had interfered with his communication and visitation rights.   A hearing was held before the undersigned on June 20, 2010.   Both parties appeared with counsel as well as the GAL.

Findings of fact

1. There are two minor children, Abigail Pascal born July 17, 2001 and Matthew Pascal born November 23, 1999.

2. The parties were married on May 2, 1992 and divorced on August 8, 2008 pursuant to a separation agreement.

3. Presently, the mother has sole custody of the minor children and the father enjoys access with the children which includes approximately 10 overnights per month.

4. The father has a dated history of alcohol and drug abuse.   The mother does not claim that this abuse continues.

5. Both parents live within a few miles of each other.

6. The father is in a long-term committed and stable relationship with a woman who gets along well with the children and who supports the mother-children relationship.

7. The mother lives alone with the children and does not support a father-children relationship.   She has interfered with the father's efforts to move forward with normalized access with the children, has made unilateral decisions regarding their vacations and extracurricular activities, has interfered with his telephone access, has neglected or failed to make use of www.ourfamilywizard.com to communicate with her ex-husband and has been an obstructionist in these legal proceedings.   While at the outset of these proceedings the wife refused to permit any overnight access, she has softened her position and readily admits that the present access schedule is working well.

8. The GAL submitted recommended proposed orders dated July 20, 2010 which supports joint legal and physical custody, equal access, a detailed holiday access schedule, co-parenting therapy for the parents and continued counseling for the children.

9. The GAL testified that the children's therapist supports this equal access schedule.

10. The father is earnest and genuine in his stated desire to spend more time with the children and to have an equal role in both the quality and quantity of time spent with the children.

11. The parties have been unable to communicate, cooperate or co-parent with one another, which makes traditional joint custody without co-parenting therapy challenging.

12. The mother works as a healthcare provider for Companions and Homemakers, working approximately 20 hours per week at approximately $10 per hour.   She sold a piece of real estate in April 2010 and received approximately $74,000.   In addition, she receives regular gifts and or loans from her mother and brother.

13. The father continues to work as a self-employed landscaper.   He underwent lumbar disc surgery in January 2010, in part due to a motorcycle injury and was disabled from employment and recovering at home for several months thereafter.   Nonetheless, he continues to receive his federal pension and was able to continue his business, delegating or contracting out some of the physical labor.   He settled his personal injury case in April 2010 and received approximately $71,000 after expenses and fees.   Presumably, some of that settlement was for lost wages or impairment of earning capacity.

14. The court does not find that the father has sustained a substantial change in financial circumstances to justify a retroactive modification of his child support order.

15. The court finds that the sole custody order of December 22, 2009 has given to the mother too much power and control.   The court finds that the children would benefit from a normalized, equal access schedule with both parents whereby each parent would have equal decision-making authority.

16. In response to an inquiry from the court, the parties stipulated on the record that they agreed with the GAL's recommendations numbered 2, 5, 6, 7, 9, 10, 11, 12 (changing seven days notice to one day's notice), 13, 14, 15, 16, 17 and 19.

ORDERS:

1. Any orders not inconsistent with these orders shall remain in full force and effect.

2. The parents shall have joint legal custody of the minor children with primary residence for educational purposes only with the mother.   They shall consult with the other regarding educational, religious, medical, curricular and extracurricular decisions.   They shall keep the other apprised of all such activities and supply each other with schedules, team rosters, school assignments, report cards, school notifications and activities.

3. Commencing August 2, 2010 the mother shall have the children Monday at 9 a.m. to Wednesday at 9 a.m. The father shall have the minor children Wednesday at 9 a.m. to Friday at 9 a.m. The parties shall alternate access on weekends (defined as Friday at 9 a.m. to Monday at 9 a.m.).

4. The parents shall enter into co-parenting counseling and share the cost equally.   They shall submit names of three potential therapists to the GAL within one week and if they are unable to agree, the GAL shall select the therapist.

5. The children shall continue in therapy with Dr. Masciolek.

6. The parties shall have reasonable telephone and Internet contact with the children on the days that the children do not sleep at their home.   The telephone call should occur on or about 6 p.m. or other mutually agreeable times.   This parent-child contact shall not be used for the parties to communicate or discuss their own issues;  it is parent-child time only.   This telephone access may be completed on the children's cell phone which shall not be withheld from them except that the cell phone should not be brought to school if there is a prohibition on such use.

7. The mother shall obtain a home computer within 30 days and the parties will set up and utilize www.ourfamilywizard.com as a regular means of communication.

8. Neither parent will utilize the children for a conduit of information, disparage the other parent or significant other of the other parent or discuss adult or court issues with the children.   Neither party shall question the children regarding the other parent, inappropriately discipline the children or take away extracurricular or sporting activities as a means of discipline.

9. Both parents are allowed to participate in school activities and extracurricular activities.   Each parent will insure that extracurricular and sporting activities take place as scheduled when the children are in their care except that the parents will choose the scope and frequency of religious activities to be enjoyed by the children when the children are in their respective care.   Each parent will insure that the children's homework is completed when the children are in their care.

10. Neither parent will consume alcohol in the children's presence or be under the influence of alcohol or drugs while the children are in their care.

11. The previously ordered holiday and vacation schedule shall continue except that the father will always get the winter vacation and the mother will always get the spring vacation.   Unless otherwise mutually agreeable, the mother will have the Christmas holiday break (December 25 at 7 p.m. to December 31 at 7 p.m.) on the odd years and the father will have the Christmas holiday break on the even years.

12. All drop-offs and pickups are to be prompt.

13. Both parties will be responsible for child care while the children are in their custody.

14. Any changes to the access schedule shall be in writing or e-mail and agreed upon by both parties.

15. The parties are ordered to mediate with the family relations office any disputes regarding visitation issues before resorting to litigation.

16. The mother is not found in contempt for interfering with the telephone calls or for her failure to utilize www.ourfamilywizard.com. Nonetheless, she is on notice that the court will expect that any future noncompliance will be dealt with harshly.

17. In view of the shared parenting arrangements and the court's finding that each parent has an equal earning capacity, no child support shall be paid.

18. The GAL shall submit his bill for services rendered and if the parties are unable to arrive at an agreement to share the expense, the GAL may file a motion for advice which will appear on a short calendar.

19. The parties shall timely keep each other informed of any change in address, phone numbers and e-mail addresses within one day of such change.

20. The parties agree that if either knows of any illness or accident or other circumstance seriously affecting the health or welfare of the children, they will promptly notify the other and both parties shall have unlimited access to the child while hospitalized and reasonable access to the child while convalescing at home.

21. At no time shall the parties attempt to resolve any conflict in the presence of the children.   At no time shall the parties negotiate directly with the children with regard to any change in the schedule of access time, either during their own access time with the children or over the telephone.   All changes to the access schedule shall be negotiated directly between the parties.

Shluger, J.

Shluger, Kenneth L., J.