Child Custody, Visitation & Relocation

Shared 50/50 Child Custody Arrangement is in Best Interest of the Children

In the child custody, family law case of Gentry v. Gentry, P.I.C.S. Case No. 14-0968, (C.P. Berks, May 16, 2014) the Honorable Scott E. Lash ruled that a shared physical 50/50 custody arrangement was in the best interests of the children and plaintiff’s petition to modify the arrangement to give her primary physical custody was denied.

Plaintiff Deborah Gentry and defendant Kirk Gentry were the parents of four minor children. They resided two miles apart, in the same school district. The children attended school in that district. Deborah was unemployed, while Kirk was employed full-time and employed two nannies to care for the children when he was not home. As part of their divorce action, the parties agreed to shared legal custody and shared physical custody on a 50/50 basis. That agreement was later modified to add a provision that if either parent were unable to be present for custody, the other parent would have the opportunity to care for the children before obtaining the services of a third party.

Deborah petitioned to modify custody to give her primary physical custody. She argued that Kirk did not make himself as available as he should, and that she was more available. She requested to drive the children to school and to care for the youngest child, withdrawing her from the Montessori school. She also expressed concerns that Kirk had a problem with alcohol and he had told others that she had a mental illness. Kirk wanted to maintain the 50/50 custody arrangement, provided that Deborah stopped being disrespectful to him in the presence of the children.

The court noted that the paramount concern in a child custody proceeding is the best interests of the child. Under 5328(a) of Pennsylvania’s child custody statue, a court must determine the best interests of the children on a case-by-case basis by considering certain enumerated factors, if relevant, giving weighted consideration to any factors which affect the children’s safety.

The court analyzed each of those factors. Determining which party was more likely to encourage and permit frequent and continuing contact between the children and another party, the court found that for the most part, the parties cooperated with each other. However, it did find that Deborah’s driving was preferable and granted her request to do so.

Whether there was present and past abuse committed by either party and continued risk to the children, the court found that the petition for protection filed by Kirk, and the counter petition filed by Deborah, had been filed while the parties were still living together, had both been withdrawn, and that the incident was isolated. It found that neither party was capable of abusing the children.

The court also found that both parties were very active with the day-to-day care of the children. They had tried to keep any changes in the family dynamics to a minimum. There were no concerns about the availability of extended family. Neither party tried to turn any of the children against the other parent. The proximity of the parties’ residences permitted liberal interaction between them and the children. Both parties had tried to protect the children’s emotions, although Deborah’s relationship with the oldest child had been compromised because the child blamed her for the divorce. Both parents were involved with the children’s daily physical, emotional, developmental and educational development. While there was a level of cooperation between the parties, there was the potential for full cooperation. The court found no evidence that Kirk had crossed the line between social drinking and alcohol abuse and no evidence that Deborah suffered from a mental illness.

The court concluded that a shared 50/50 arrangement was in the best interests of the children. It denied plaintiff’s motion for modification, but granted her requests to take the children to school on days when defendant has custody and to care for the youngest child in lieu of having her attend pre-school.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 37 PLW 592, (June 24, 2014)

Filed Under: Family Law; Child Custody; Best Interest of the Children

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