FAMILY LAW

Custody and Child Support • Modification of Custody Order • Child’s Best Interest • Weekday Visitation • School Difficulties

Morris v. Morris, PICS Case No. 14-0485 (C.P. Berks Jan. 10, 2014) Lash, J. (34 pages).

The existing custody order in this matter was modified to reduce father’s visitation with the parties’ minor child during the school week because the child’s disrupted schedule requiring travel to and from each parent’s home during the week was contributing to his difficulties at school. Custody order modified.

The parties were the parents of a minor child born in 2004. They separated in 2007 and divorced in 2011. Since the time of separation, mother was the primary custodian of the child. In 2010, the parties stipulated that they would share legal custody, that mother would have primary physical custody and that father would have partial custody on alternating weekends.

Mother resided with the minor child’s maternal grandmother, who helped with the child, as well as mother’s 18-year-old son from another relationship and the minor child. Father lived with his wife and her 11-year-old daughter. Father had an 18-year-old son and a 17-year-old daughter from another relationship, who resided with their mother. Father was estranged from his daughter.

In July 2012, father filed a petition to modify the existing custody order. However, on Dec. 17, 2012, he withdrew the petition because he decided to move to Florida for work-related reasons. Father moved to Florida, remained there for about a month and then returned to Pennsylvania.

Here, the court of common pleas considered mother’s petition to modify the custody order and father’s counterclaim. The court considered testimony from the parties, the maternal grandmother and father’s wife and daughter. The court also considered the expert testimony of independent psychological evaluator Matt Shollenberger, Ph.D., P.C., and an in camera conference with the minor child.

The evidence established that the minor child had difficulties in school. Mother believed that the child’s issues at school stemmed from the existing custody schedule whereby father had the child two weekday evenings every week and returned the child to mother the next day. This schedule resulted in the child spending one night at mother’s home, then the next night at father’s home, and so on.

The court also considered that father had to wake the child up very early on mornings he had custody in order to get the child to his mother’s house prior to her leaving for work. This schedule caused the child to lose an hour of sleep, which loss affected his ability to focus in school. Shollenberger recommended that mother continue as primary custodian, with father to have partial custody during the school year.

He opined that mother would be better suited for primary custody in part because of father’s unstable personal history. Shollenberger cited father’s recent short-term relocation to Florida, the newness of his most recent/third marriage and past changes in his residence and employment. Moreover, Shollenberger was not impressed with father’s stated basis for seeking primary custody, i.e., that it would enable father to “have more control.”

In addition, Shollenberger recommended that the shared custody schedule be adjusted to eliminate overnight visits with father on weekdays during the school year. He agreed with mother’s contention that the child’s constant moving back and forth from one household to the other was a substantial contributor to his problems at school.

The court noted that the paramount concern in a child custody case is the best interest of the child. The court considered all the factors that had an effect on the child’s physical, intellectual, moral and spiritual well-being and determined that mother should continue to have primary custody of the child.

The court considered the need for stability and continuity in the child’s education, family life and community life. Mother and child continued to live in the former marital home, with the maternal grandmother, where the child was comfortable and had friends. Meanwhile, father had moved several times and had difficulty interacting with his family members.

Since the majority of relevant factors favored mother, the court awarded her primary custody of the child, with father to have partial custody. Significantly, the court agreed that the schedule should be modified to eliminate weekday visitation with father during the school year. As such, the court modified the existing custody order.