Child Custody, Visitation & Relocation


In the child custody case of A.S.W vs. H.M.W., PICS Case  No 16-1220 (Pa. Super, Sept. 22, 2016) the Honorable Patricia H. Jenkins, writing on behalf of the Pennsylvania Superior Court ruled that the trial court had properly awarded primary physical custody to mother where its findings that mother was more likely to foster contact with father than vice versa.

Father A.S.W. appealed from the order of trial court awarding mother H.M.W. primary physical custody of the parties’ child, E.M.W., awarding father partial physical custody on alternating weekends and awarding the parties shared legal custody. Immediately prior to parties’ separation, father filed a complaint for primary physical custody and shared legal custody of child, later changing his request from primary physical custody to shared legal custody. Following custody conciliation conference that resulted in no agreement between the parties, the trial court adopted the recommendations of the conciliation officer, entering a temporary order awarding the parties shared legal custody and awarding mother primary physical custody, with father to have partial custody on alternating weekends, and directed the parties to appear for a further custody hearing.

After a hearing at which the parties presented their own testimony along with the testimony of multiple witnesses, the trial court entered a final custody order again awarding mother primary physical custody with father to have partial physical custody on alternating weekends, with the parties to have shared legal custody. Father appealed arguing that the trial court erred in its application of the custody factors.

Specifically father argued that the trial court erred in determining that mother was more likely to encourage the relationship between child and the other parent and further erred in finding that father’s employment as a soccer coach prevented him from having sufficient time to spend with child.

The court affirmed the ruling of the trial court, finding that father’s appeal essentially asked the court to re-weigh the evidence considered by the trial court. Instead, the court held the trial court’s determinations were supported by competent evidence in the record. The court noted that the trial court found that father repeatedly breached the parties’ agreement to call mother to care for child in the event father had a scheduling conflict and had refused to permit child to go on a vacation whit her mother and her family, whereas mother had completely honored the agreement. The court further held that the record supported trial court’s determination that mother had performed the majority of the parental duties and was the major nurturing parent. The court noted that the trial court found that the mother’s schedule permitted her to transport child to and from daycare at more reasonable hours and to spend more time with child, whereas father’s role as soccer coach involved significant amounts of time.

Finally the court noted that the trial court had expressed concerns with the father’s creditability with respect to his schedule and to his perception of the relationship between mother and child, which the trial court attributed to father’s hostility towards mother. Accordingly, because the trial court analyzed each of the statutory factors determining custody, and because its determinations were supported by the record, the court affirmed the order of the trial court.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 39 PLW 969 (October 11, 2016)

Filed Under: Family Law; Child Custody

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