Child Custody, Visitation & Relocation

Mother Awarded Primary Physical Child Custody due to School Commute

Mother was entitled to primary physical child custody of the parties’ minor children where 50-50 custody arrangement was not viable due to the children’s school commute and mother was more nurturing and attentive, while father was ambivalent to the children’s’ needs and sometimes abusive. The court ordered shared legal child custody, with mother to have primary physical child custody.

The parties are the natural parents of two minor children. Though never married, they lived together with the children until spring of 2014, when mother separated from father. On July 25, 2017, the court entered a temporary order incorporating a shared 50-50 custody arrangement. In this matter, mother sought primary custody of the children. Father sought to maintain the current schedule. In making a disposition, the court addressed the factors in 23 Pa. C.S. §5328(a) for determining the best interests of the children. Several factors did not favor either party. However, the court considered the proximity of the residences of the parties. They lived close enough to transport the minor children for weekend or weekday visits, but there was a substantial distance between the households and the other party’s school district. This favor militated against a 50-50 custody arrangement, as the children would have to wake up much earlier for school attendance. In considering the children’s need for stability, the court found that this factor favored father. Father lived in West Reading for several years and had no intentions of moving. By contrast, mother had moved several times and caused the children to attend different schools. However, in considering which party was more likely to maintain a loving, stable, consistent and nurturing relationship adequate for the minor children’s needs, the court found that mother was much more capable of performing such care. Mother testified about her philosophy for rearing children, contrasting it with issues she had with father. Father was not a nurturer and could be tough on the children. Mother was specific about the oldest child’s sensitivity and said this attribute disappointed father. The court also considered past and present abuse by the parties and found that this factor favored mother. Moreover, father had two convictions for driving under the influence of alcohol. The court found it clear that father had an issue with alcohol and that mother was credible in stating that father could be abusive when under the influence. Additionally, mother was more likely to attend to the daily physical, emotional, developmental, educational and specific needs of the children. She was more attentive to the children’s needs. By contrast, father did not insist that the youngest child wear his necessary glasses and did not attend doctor visits. He was not as invested as mother in these areas, the court observed. The court also gave special mention to father’s presentation. He said he did not have any involvement with his own father and that this void made it more difficult to function as a parent. “This is understandable, but not an excuse,” the court observed in its opinion granting mother primary physical custody.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly 41 PLW 391 (April 24, 2018), Olmeda v. Pachuilo, PICS Case No. 18-0438 (C.P0 Berks April 3, 2018)

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