BY DANIELLE N. RODIER of the Law Weekly


In an unusual move, the Superior Court has given credit to a son’s outspoken animosity toward his mother as a reason for awarding primary custody to his father, even though the mother was a perfectly fit parent and retained custody of his sister.


Although a child’s preference is not controlling in a custody decision, the majority in Watters v. Watters, PICS Case No. 00-1614 (Pa. Super. Aug. 7, 2000) Montemuro, J.; Orie Melvin, J., dissenting (11 pages), said its decision was in the child’s best interest because, otherwise, he could be at increased risk for emotional and behavioral problems.

“Where, as here, the child’s mental state is threatened by his current custody situation, and his stability is largely dependent upon the presence of one parent rather than the other, the child belongs where his emotional equilibrium may be maintained if not actually improved,” Senior Judge Frank J. Montemuro wrote in the court opinion.

Lawrence County attorney Norman A. Levine represented the mother, Connie Watters.

He said the Superior Court’s decision was “the exception rather than the rule.” But he said it could very well be used not only to persuade judges in other cases to separate siblings, but also to give an advantage to a parent who has tried to turn a child against his or her spouse.

The parties, Connie and Donald Watters, separated in 1999. They had been married for about 14 years and had two children, Brittany and Donald III. Brittany is 14 and Donald III is 11.

At the beginning of the separation, Donald moved into the basement of the family home. Donald III went with him. Montemuro said that after the split, Brittany became “openly hostile” to Donald while Donald III blamed Connie for the problems in the marriage.

Within two months, Donald moved out pursuant to a court order and moved into his parents’ house nearby. A temporary custody order gave Connie primary custody of both children and Donald “liberal” partial custody.

The children’s relationships with their parents worsened. Brittany stopped speaking to Donald, and Donald III became more antagonistic toward Connie. A court-appointed psychologist testified that the parties encouraged those attitudes.

A Lawrence County Common Pleas Court judge granted Donald primary custody of his son and Connie primary custody of Brittany. Connie was also given substantial partial custody of Donald III.

Relying heavily on the psychologist’s testimony, the trial judge said it would be in Donald III’s best interests to remain with his father for fear that the boy would otherwise suffer emotional and behavioral problems.

Montemuro noted that a child’s wishes are important, but not controlling, in a custody determination.

Donald III testified the he and his father shared interests like sports, that his father helped tremendously with his schoolwork and that he had a deep affection for his paternal grandparents.

“Donald III’s encomium on [Donald's] virtues, his continual expression of love for and admiration of [Donald],” Montemuro said, “was in stark contradistinction to the tremendous animosity and hatred the boy expressed toward [Connie], and reflects the quality of his relationship with her, that is, predominately negative.”

Montemuro said Connie could not show any advantage to having Donald III stay with her.

“The child’s best interests will not be served by requiring that he remain primarily in the company of a person whom he professes to loathe, and whom he believes, whether or not accurately, to care little for him, and to be solely responsible for the family’s dissolution,” he said.

The trial court judge was correct to conclude that it would be “more harmful” to Donald III to give primary custody to Connie, Montemuro said. This was so despite the fact that Connie had “no specific shortcomings” as a parent, he said.

Connie argued that the commonwealth has a policy of keeping siblings together absent “compelling reasons.” Montemuro said such compelling reasons did exist in the Watters’ case.

Montemuro noted that Brittany and Donald were not particularly close, but that it would be easy for them to continue a relationship between the liberal partial custody order and their proximity at school.

“If … Donald III is permitted the custody situation he desires, his contentment there may to some extent ameliorate his antipathy to [Connie]; concomitantly, his relationship to his sister, distant rather than negative, may also benefit,” he said.

Montemuro made it clear that the court’s order did not mean it condoned the part Donald played in the formation of his son’s attitude toward Connie.

“We deplore the fact that parental authority, particularly where, as here, Donald III’s affection for [Donald] amounts to hero worship, is used for such destructive and pernicious ends,” he said.

So the court also ordered the parties to undergo counseling to address both the parents’ and the children’s behavioral issues.

Levine said he found it “a little curious” that the majority would make that statement about Donald’s behavior, but go on to grant him custody nonetheless.

“That’s what disturbs me, even more than the separation of the siblings,” he said.

“There’s nothing that says [Connie's] a bad mother. She did nothing wrong. She tried to be a good mother. This young man was just a ready target,” Levine said.

Gabriel June Sellei of Mesirov Gelman Jaffe Cramer & Jamieson, who represented Donald, could not be reached for comment.

Dissent

Superior Court Judge Joan Orie Melvin said in her dissent it was a mistake to separate Donald III from his mother and only sibling.

Orie Melvin said Donald III did not become hostile toward Connie until after she separated from Donald and Donald began spending more time with him. She said Donald III seemed simply to mimic his father’s behavior.

“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,” she wrote.

Orie Melvin also said she did not find compelling reasons to separate Donald III and Brittany.

Because of Brittany’s strained relationship with her father, the trial court did not order her to participate in the weekend visitation arrangements with him. Therefore, Orie Melvin said, Brittany would only see her brother on the weekends Connie had partial custody.

Orie Melvin also disagreed that the children could continue their relationship during school hours because their differing grade levels placed them in different schools.

“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,” she said.

“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.”