In September, I wrote an article regarding the case of W.C.F. v. M.G., 115 A.3d 323 (Pa. Super. 2015), pertaining to the reversal of the trial court's child custody order when the trial court's decision was inconsistent with the analysis of the child custody factors enumerated under the child custody statute. In the case of R.S. v. T.T., 113 A.3d 1254 (Pa. Super. 2015), a trial court's decision was reversed because the facts of the case did not support the analysis of the child custody factors contained in the child custody statute. More importantly, the case dealt with an issue faced by many in child custody cases. In the R.S. case, the trial court determined that the child's entrance into full-day schooling requires that one parent must have primary custody so that the child may establish a routine and consistency during the school week. Often in child custody cases, a parent will argue that it is important for the child to have a home base or primary residence during the school year. That was the argument taken by the mother in the R.S. case. Ultimately, the state Superior Court reversed the trial court and found that the evidence did not support such a ruling.

The relevant facts of the R.S. case are as follows: Prior to the hearing that resulted in the appeal at issue, the parties had an equally shared custody schedule where the father had physical custody of their child on what is commonly referred to as a 2-2-5-5 schedule, where he had custody of the child every Monday morning until Wednesday night and every other weekend from Friday to Monday morning. In the anticipation of the child beginning full-time school, the mother filed a petition to modify custody requesting primary physical custody. The father, in turn, filed a petition to modify custody requesting primary custody as well. After a hearing, the trial court entered an order granting the mother primary physical custody with the father having custody of the child each Wednesday from 4 to 7 p.m. and on alternating weekends from Friday after school until Sunday at 8 p.m. During the summer, the court awarded equally shared custody on a week-on/week-off basis, according to the opinion.

The father filed an appeal primarily based on the issue of whether the trial court's order was unreasonable because its conclusions were not supported by evidence and the order failed to address the fact that the child "will now be deprived of father's care for extended periods during the school week, which is particularly problematic in light of the court's simultaneous conclusion the mother will not further the child's relationship with father."

The father focused part of his appeal on the trial court's analysis of the fourth factor of the 16 statutory factors to be analyzed in making a custody decision. The fourth factor pertains to "the need for stability and continuity in the child's education, family life and community life." The trial court found that the factor favors the mother. Contained in part of the trial court's analysis was the finding that "both parties agree that the current schedule requires the child to be driven in a vehicle back and forth too frequently and that time spent doing this is not in the best interest of the child." According to the opinion, the trial court further held: "The court finds that the child should be primarily with one parent during the school week so that he can establish a routine, but that the parties should have custody in the summer, on an alternating week basis, to minimize the time child must ride in a car back and forth."

On appeal, the father argued that the court's finding that both parties agreed that the current schedule required the child to be driven in a vehicle too frequently was not supported by the record and required reversal. According to the opinion: "Father contends that 'there was no testimony adduced relative to the effect that the commute of child was detrimental to him. Moreover, the record is devoid of any evidence that the 'parties agreed' to such a proposition.'"

The Superior Court also focused on the fact that when the possibility of changing custody exists, "it is incumbent on the court to fully discuss the possible effect on the child of the proposed transfer of custody." The Superior Court found there was no discussion by the trial court about the possibility of harm to the child in uprooting him from the "care pattern he has known from a young age." Further, according to the opinion, the Superior Court agreed with the father that "the trial court's decision is rendered more problematic by the conclusion that mother is less likely than father to encourage child's relationship with the other parent."

The Superior Court rejected the trial court's conclusion that the child's entrance into full-day elementary school requires a home base and one parent having primary custody so that the child may establish a routine. The Superior Court highlighted that every set of parents of school-aged children face a similar issue and that such a situation does not present a special circumstance requiring a primary custody arrangement. The Superior Court then vacated the trial court's order and remanded the case for further proceedings consistent with its opinion.

This case is important for family law practitioners. It is one of two fairly recent reported cases where the trial court has been reversed because of inconsistencies with the record and the analysis of the 16 factors to be considered by the trial court in rendering a custody decision. An argument can be made that the position that primary physical custody during the school week is preferable has been weakened by this case. But, all child custody cases are fact-specific and in the R.S. case it was noted that the parties had followed an equally shared custody schedule for quite some time prior to the case being litigated. Likewise, this case obviously does not stand for the fact that all child custody arrangements should be equally shared during the school year either. However, this case definitely is a tool to be kept in the family law practitioner's tool belt when arguing such an issue.

Primary Custody of Child Not Required During School Year.pdf

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book "Pennsylvania Child Custody Law, Practice, and Procedure." Bertin is a fellow of the American Academy of Matrimonial Lawyers, a former chair of the family law section of the Philadelphia Bar Association, the current co-chair of its custody committee, and is the secretary of the family law section of the Pennsylvania Bar Association.  

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Reprinted with permission from the November 9, 2015 edition of The Legal Intelligencer © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, or visit # 201-11-15-04