Child Custody, Visitation & Relocation

Father Awarded Primary Physical Custody of Minor Child During The School Year to Provide A More Stable Environment And To Foster The Child’s Relationship With Younger Sibling

In the family law, child custody case of Shearer vs. Davis, PICS No. 14-0671 (C. P. Lawrence, April 2, 2014), the Honorable Craig Cox ruled in a modification of custody case that the defendant’s award of primary physical custody during the school year was proper because the factors regarding who can provide a more stable environment, extended family, and children’s relationship with their new sibling, all weighed in favor of defendant. Appeal denied.

Plaintiff mother previously obtained an order for joint legal and physical custody of parties’ two children. The order stated that each parent would have physical custody for six consecutive months every year. Both parties believed that sharing custody monthly was in the best interest of the children and they started sharing custody every other month. Due to the distance between the residences of parties, the monthly custody schedule was not working out as planned and defendant filed a petition for modification of custody for joint legal custody and primary physical custody during the school year. The court previously ruled in favor of defendant father and plaintiff mother appealed.

Plaintiff asserted that the court erred by: (1) awarding primary physical custody to defendant; (2) entering a custody award not in line with the statutory factors; (3) failing to properly consider safety concerns, lack of parental duties by defendant, and each party’s willingness to encourage a relationship with the children and the other party; (4) improperly finding a relationship with children’s half-sibling; (5) finding defendant provides more stability and is more likely to attend to their educational needs; (6) basing the decision on the children’s future school schedule, on defendant’s work schedule, and on the fact of defendant residing with his girlfriend.

The court applied all the factors to determine the best interests of the children pursuant to 23 Pa.C.S.A. 5328(a)(1)-(16) and addressed all plaintiff’s assertions of error. Also, the court noted that pursuant to 23 Pa.C.S.A. 5327(a), no presumption arises in favor of awarding custody to either parent. Several factors weighed in favor of plaintiff and many factors were evenly weighted between the parties. The court noted that both parties were capable of adequately providing for the children and that both parties demonstrated good parenting skills. However, the child custody factors in 5328(a) weighed slightly in defendant’s favor. The testimony showed that defendant provided a more structured life and that he placed more emphasis on education. Defendant taught the children letters and numbers and the children would forget what they had learned because plaintiff had not continued the lessons.

The sibling factor also weighed in favor of defendant because the record showed that the children had developed a very strong relationship with their younger sister. The court noted that Pennsylvania had a strong policy against separating siblings. The final factor in favor of defendant was his work schedule as opposed to plaintiff’s work schedule. Defendant’s schedule allowed him to spend more time with the children on school days but plaintiff’s work schedule from 2:00 p.m. to 10:00 p.m. indicated that she would not be home after school or have much time to spend with the children during the week. Also, defendant’s mother lived close by and was available to assist in child care as needed.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly (May 6, 2014)

Filed Under: Family Law; Child Custody; Modification of Custody: Best Interest of the Child: Policy Against Separating Siblings

Please visit our Child Custody website for more information on this topic.