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By TERRIE MORGAN-BESECKER tmorgan@leader.net
Saturday, March 15, 2003 Page: 3A
WILKES-BARRE – A state appellate court has overturned part of a Luzerne
County judge’s decision in a protection-from-abuse case, saying the judge
should have allowed testimony regarding the best interest of the child before
prohibiting a father from seeing his daughter for one year.
The state Superior Court’s ruling in the case of Harry Williams is expected
to have a limited impact on other PFA cases in which a custody order was in
effect prior to the protection order being granted, several area attorneys
said.
The attorneys said the ruling, while not precedent-setting, reaffirms prior
court rulings that state a judge must look at the broader picture of a
parent’s involvement with the child, rather than just the behavior that led to
the PFA.
Michael Pendolphi, a Forty Fort attorney who handles many custody cases,
said the ruling will likely increase the length of some PFA hearings because
the judge will have to consider more evidence.
“It’s a good thing because it basically puts all the decision making
regarding the best interest of the child back into Orphans Court, which has
the expertise to make that analysis,” Pendolphi said.
Williams’ attorney, Larry Durkin of Scranton, appealed a Nov. 29, 2001,
ruling by Judge Peter Paul Olszewski Jr. that granted a protection order Kathy
Shandra of Pittston sought on behalf of herself and the couple’s
then-1-year-old daughter. Williams allegedly threatened Shandra when she took
their daughter to visit him at a halfway house in Harrisburg, where he was
serving a sentence for a drug conviction.
Durkin argued the judge’s decision modified a pre-existing custody order
that gave Williams visitation. Because of that, he said Olszewski was
obligated to consider testimony regarding the best interest of the child.
Durkin maintained the judge did not do that.
“He just arbitrarily said because there is a PFA order, I’m not going to
let you have custody of the child for one year, ” Durkin said.
In its Feb. 27 ruling, the Superior Court did not address the merits of the
PFA, but said a transcript of the hearing supported Williams’ contention that
Olszewski based his ruling on Williams’ behavior alone and did not perform a
“best interest” test as required.
Durkin said the ruling is a victory for Williams as well as other parents
who have a PFA entered against them because it helps ensure their rights to
visitation will not be arbitrarily taken away.
Shandra’s attorney, Vincent Cappellini, said a petition to modify custody
is now pending in the case. That issue will be decided by Judge Chester
Muroski, who handles all Orphans Court cases.