Child Custody, Visitation & Relocation

Father Granted Primary Physical Custody of Minor Child

In the Family Law case of D.H. vs. N.P., PICS Case No. 13-2226 (C.P. Northampton, August 12, 2013). The Honorable Anthony S. Beltrami granted father’s petition for primary physical custody where child safety custody factors weighed against mother, who failed to ling, mother and stepfather tested positive for marijuana use, their home was visited twice by family services and up to six children of varying ages were living in the home at any given time.

Plaintiff father filed a petition to modify custody, seeking primary physical custody of the child. Defendant mother filed a cross-petition seeking both primary physical and legal custody, averring that father was not the child’s biological parent.

Father and mother never married. For two years after the child’s birth, mother had primary physical custody. Mother and father shared physical custody the following three years. Both parties abided by the interim order.

Father and mother’s homes were 22 miles apart. Father lived with his fiancée in her home. Neither father nor his fiancée had any other children. Father had a steady full-time job. His fiancée received disability payments and did not work outside the home.

Mother was married and lived in a home with the child’s stepfather where the child had her own room. Mother’s daughter and son from a prior relationship and stepfather’s son also lived in the home. Two other children resided in the home on alternating weekends. Mother was expecting another child and was not employed. Stepfather was employed. Neither mother nor stepfather had medical benefits.

The court considered the custody factors relevant to the child’s physical, intellectual, moral and spiritual well-being and weighed more heavily the factors affecting the child’s safety.

The court ruled that father was more likely to encourage frequent and continuing contact with mother based primarily on its finding that mother and stepfather told the child that father was not her biological father and intended to change the child’s last name to that of her stepfather.

Other than mother’s blanket statement about the child’s parentage, no evidence was offered disputing father’s paternity. Mother was faulted for attempting to turn the child against father by challenging paternity.

Father was also favored on the past and present abuse factor. There was evidence of inappropriate contact between mother’s son, 12, and the child, which mother dismissed and failed to address, jeopardizing the child’s safety.

Mother was favored on the parental duties factor because she stayed at home. Father and his fiancée shared those duties when the child was in their home.

Although father and fiancée were not married, the court was satisfied they had a committed long term relationship and fiancée had a good relationship with the child. Nevertheless, the family unity factor weighted slightly in favor of mother because the child had half-siblings with whom a relationship should be fostered.

Mother’s mental health issues did not affect her ability to adequately care for the child and therefore were not at issue.

The court determined that shared physical custody was not in the child’s best interest because of the distance between school districts and parents’ lack of communication. Father offered a more stable environment for the child, while mother ‘s home was in flux due to shared custody of five other children and family services was called to the home twice to address concerns.

The court granted father’s petition for primary physical custody and ordered shared legal custody between father and mother.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, (October 22, 2013).

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