Child Custody, Visitation & Relocation
PARENT WHO WAS MORE AVAILABLE FOR CHILD WAS AWARDED PRIMARY PHYSICAL CUSTODY
Where the parents had a history of poor communication, primary physical custody of the child was awarded to mother who had a more flexible schedule.
The parents were the unmarried parents of a five year old boy, S.T.L. Their existing custody order provided that the parties shared legal custody of their son. Physical custody was shared on a rotating two week basis. Both parties sought modification of the custody order to obtain primary physical custody of S.T.L. during the school year.
Father lived alone and had worked as a computer programmer at the same company for over ten years. Mother resided with maternal grandfather. She provided in-home care for the elderly. Mother’s schedule was flexible, so she scheduled her hours at times when S.T.L. was with father. The parties lived approximately eight miles apart, but in separate school districts. Both parties agreed the other was a capable parent, and that both households were suitable for raising a minor child. Neither objected to the schools in the other parent’s district. The court appointed a guardian ad litem (“GAL”) for the minor child. The GAL prepared a written report and testified at trial.
The parties had a history of being unable to cooperate. They argued over issues such as parenting transfers, setting vacation times, the child’s activities, medical issues, and what name to use for the child.
The court considered the factors in §5328(a) of Pennsylvania’s child custody statute to determine the best interests of the child. Neither parent was more likely to encourage frequent contact between S.T.L. and the other parent. On the factor of past abuse, father argued maternal grandfather harassed him, but mother claimed that father committed mental abuse against her. The court found this factor favored mother, but only slightly. The factor relating to the performance of parental duties did not favor either party, because both were capable. The stability factor favored father, but the court found that mother’s situation was also stable and the record indicated no plans for her to move. The paternal grandmother was very involved in taking care of S.T.L. while father worked, and the child was very connected with a cousin who was also in the paternal grandmother’s care, so the court found this factor favored father. The factor involving attempts to turn the child against the other parent favored mother, because father and paternal grandmother behaved in ways that subordinated mother’s role as a parent to their own. Mother was more available to care for the child’s daily needs due to her flexible work schedule, so the court decided that factor in her favor. The final factor pertained to the level of conflict between the parties and the court found both parties contributed to the communication difficulties.
The court awarded primary physical custody during the school year to mother, because she had a flexible schedule and was more available for the child during the week. Father was ordered to perform all transportation for parenting exchanges, to minimize the disputes that arose with transfers at father’s home. The GAL suggested father was the instigator of most of these disputes, and the court agreed. Father was granted time with the child on alternate weekends and two weekday evenings during the school year. The court ordered the parties to alternate holidays and to share summer time equally.
Reference: Freight v. LeBruno., PICS Case No. 17-1304 (C.P. Berks. Aug. 22, 2017), Digest of Recent Opinions, Pennsylvania Law Weekly, 40 PLW 826 (September 5, 2017)