Child Custody, Visitation & Relocation

Father’s Petition to Modify Mother’s Primary Physical Child Custody Denied Where Shared Physical Custody is Untenable

Petition to modify child custody properly denied where court found maintenance of mother’s primary physical custody warranted where she fostered the child’s relationship with father and where the parties had a high-conflict relationship that would make shared physical child custody untenable.

Father P.J.P. appealed from the order denying his petition for modification of the custody order for the parties’ minor son, M.P. Father and mother M.M. married in March 2013 and separated in August 2013; M.P. was born in November 2013. The parties exercised custody pursuant to an order that awarded primary physical custody to mother and partial physical custody to father on an alternating basis; the parties shared legal custody.

Father filed the present petition for modification of custody, seeking shared physical child custody. During a hearing, mother testified that she sent father numerous pictures of photos and video of M.P. while he was in her custody, while father only sent her photos of M.P. on Christmas two years prior and on the first day of the hearing. Mother further testified that she received no communication from M.P. while he was in father’s custody. Mother accused father of engaging in “mental terrorism” by belittling and insulting her, including in M.P.’s presence; mother admitting to insulting father, but not in M.P.’s presence. Father admitted to calling mother “mean” in M.P.’s presence after she criticized his job. Mother also accused father of not meaningfully participating in co-parenting counsel.

The trial court denied the petition and a subsequent motion for reconsideration. On appeal, father accused the trial court of showing bias toward a “preferred parent”. Father further challenged the trial court’s determination of several child custody factors in favor of mother and argued that the trial court based its decision on factors having little or nothing to do with M.P.’s best interests. Finally, father argued that the trial court reached an unreasonable conclusion for the Wiseman factors and misapplied the law for the meaning and context of “minimal cooperation between the parties”.

The court ruled that father was not entitled to relief. The court found that the trial court had made credibility determinations against father, believing mother’s testimony that father wished to have M.P. read the custody litigation document to ensure M.P. did not marry a “toxic person” like mother. The trial court further found that father did not want child to communicate with mother during his custody periods, and concluded that father was uninterested in accepting anything less than equal physical custody even though shared physical custody was not in M.P.’s best interest. The court further ruled that the trial court’s factual findings, concerning mother’s efforts to promote M.P.’s relationship with father and to improve co-parenting along with father’s failure to make similar efforts, supported its conclusion that all statutory custody factors weighed equally for both parents or weighed in favor of mother.

Finally, the court rejected father’s argument that shared physical custody was warranted because the parties met the fourth Wiseman criterion – that the parents were capable of a minimal degree of cooperation – and because shared physical custody would reduce conflict. The court noted that Wiseman was decided before the statutory custody factors went into effect and that the statutory factors incorporated the Wiseman factors.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 41 PLW 461, (May 15, 2018) P.J.P. v. M.M., PICS Case No. 18-0568 (Pa. Super, April 27, 2018) McLaughlin, J.

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