Child Custody, Visitation & Relocation
FATHER AWARDED PRIMARY PHYSICAL CUSTODY OF DAUGHTER AND THE ABILITY TO SELECT DAUGTHER’S SCHOOL
In the child custody, family law, appellate case of L.D.W v. B.E.W ., PICS Case No.16-0673, (Pa. Super., May 17th 2016) the Honorable Kate Ford Elliot, writing on behalf of the Pennsylvania Superior Court, ruled that the trial court properly held a de novo trial on remand and properly awarded primary physical custody of parties’ daughter to father and granted the father ability to decide which school the child would attend because mother waived some of her issues by failing to object.
Parents were separated, and mother filed a pro se custody complaint and a petition for emergency relief requesting primary physical custody of the parties; daughter and father’s older son, whom mother had adopted during the marriage. Trial court scheduled a pretrial conference but, prior to the conference mother filed a notice of proposed relocation, and father objected. Trail court entered an interim custody order granting mother primary physical custody and giving father partial physical custody on weekends.
After trial, the trial court granted the parties shared legal custody of daughter, mother primary physical custody of daughter and father partial physical custody on weekends and holidays and denied mother’s request to relocate. The order was silent with respect to the son. Father appealed, and the court vacated the trial court’s order and remanded. The trial court conducted a trial de novo on remand and granted shared legal custody of both children, granted father primary physical custody of both children, and mother partial physical custody on weekends and some holidays. The trial court also gave father the ability to decide which school daughter was to attend. Mother appealed.
On appeal mother argued that the trial court erred by not considering her request for relocation and by failing to consider the factors pursuant to 5337(h). Neither mother nor father raised the issue of relocation on appeal after the trial court denied it in the first order. Thus the issue was waived, and it was no longer relevant, since father had primary physical custody.
Mother also challenged the trial court’s decision to conduct a trial de novo after remand. She contended that she was deprived of due process because she received inadequate notice and that all prior claims would be considered and inadequate time to prepare. The court disagreed and found that trial court gave adequate notice of remand schedule, mother failed to file any motions or objections and made no request to present additional testimony or evidence that the remand trial. Mother therefore waived those issues.
Mother also contended the trial court failed to comply with Pa.R.C.P1915.4(d) by not issuing a decision until 86 days later after the de novo trial and that delay prejudiced mother and daughter. The court disagreed and noted that mother had made no requests for a more timely decision and mother appeared to confuse her disagreement with regard to school choice with prejudice.
Mother also asserted that the trial court misapplied the custody factors, neglected her role as primary care giver and improperly interpreted the evidence regarding school, daycare the condition of the marital residence and abuse. Mother’s allegations challenged the trial court’s findings of fact, but trial court analyzed and addressed each factor and found that it was in the best interest of the daughter for the father to have primary custody because father was more able to promote relationships between daughter and her siblings and extended family and the mother’s residence was an unsuitable environment for the child.
The trail court also properly found that the choice of school weighed on the custody agreements and found that the child was not doing well in her current school and the mother presented no evidence as to the school she favored.
Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 39 PLW 215 (May 31, 2016)
Filed Under: Child Custody; Factors, Choice of School
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