Child Custody, Visitation & Relocation

Father was Awarded Primary Custody of Minor Children During the School Year to Maintain the Most Stable Lifestyle for the Children

In the child custody case of Mathews v. Fitzpatrick, PICS Case No. 14-1937 (C.P. Lawrence, Oct. 29, 2014) the Honorable John W. Hodge found that it was in the minor children’s best interests to maintain a stable living arrangement and to remain in their father’s primary custody during the academic year.  The court denied mother’s request for physical primary custody.

Plaintiff and defendant, the natural parents of two minor children, were actively involved in caring for the children during their early years. When father served a year sentence for a drug-related charge, mother was the primary caregiver. Upon his release, she moved to McKees Rocks. The children remained with father in New Castle. Four years later, mother filed a complaint seeking primary physical custody of the children.

The court noted that in any custody proceeding, the paramount concern is the best interests of the children and that 23 Pa. C.S.A. 5328(a) sets forth the factors that a court must consider. Applying those factors, the court made the following findings. Both father and mother encouraged and permitted contact between the children and the other party. There was insufficient evidence to warrant a finding of abuse by either party. Both mother and father were capable of performing all of the necessary tasks associated with raising the children.

The children had consistently lived in the residence occupied by father. They attended the local school and had strong connections to the community. Mother’s request for primary custody would remove them and put them in an unfamiliar school district and they would not have the benefit of their paternal family, with whom they were accustomed to spending time. Also, if mother’s motion were granted, she would have to place the children in day care while she worked.

Both father and mother testified to having extended family available to help care for the children. Mother opined that the paternal grandmother was raising the children but father testified that he performed most of the parental duties on a daily basis.

The court also found that the children were close siblings. Since neither testified, the court did not consider their preferences regarding custody.

The court found no evidence to support a finding regarding either party’s attempt to turn the children against the other and found that both mother and father presented themselves as loving and nurturing parents. Both parents clearly showed a sincere desire to be available for the children. Both were able and likely to attend to the children’s physical, emotional, developmental and educational needs. Further, where the parties lived one hour apart, the distance did not create a substantial impairment to the exercise of custody.

The court found a high level of conflict between the parties and a complete inability to communicate. It found credible father’s testimony that upon his release from incarceration he had assumed a different lifestyle. It also found that mother and father appeared physically healthy and emotionally stable.

After considering these factors, the court concluded that then current custody arrangement promoted the most stable lifestyle for the children. Also, it was in the children’s best interests to maximize the time spent with parents and family versus day care. Further, it was in the children’s best interests to remain in the primary custody of father during the academic year, based on the fact that they had consistently lived in New Castle and were excelling in that location.

The court therefore denied mother’s request for primary custody. It issued an order providing for shared legal custody and primary physical custody to father and partial custody to mother on the weekends during the academic year, and primary custody to mother during the summer months with father enjoying partial custody on the weekends. The court also ordered the parties to attend co-parenting/communication counseling and to fully cooperate with each other in parenting the children.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 37 PLW 1180 (December 9, 2014)

Filed Under: Family Law, Child Custody; Best Interests of Children; Stable Living Arrangements

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