In R.S. v. T.T., 2015 Pa. Super. 72 (Pa. Super. 2015), the Superior Court considered whether the trial court properly awarded Mother primary physical custody of a child entering full-day school. The parents had previously shared physical custody of the child since he was very young. Additionally, the parents lived 14 miles apart.
Mother primarily sought a change in custody because the child would be starting elementary school and she thought the child would better off living with one parent to establish a more stable routine. She sought to avoid shuttling the child back and forth each mid-week because she thought multiple transfers would not be beneficial to the child.
The Pennsylvania Superior Court recognized that mother’s concerns were well-meaning, however the Court disagreed that the child’s entrance into full-day elementary school required a modification of the shared physical custody schedule. There was no evidence that father agreed that child being driven back and forth too frequently was detrimental to the child or not in his best interests.
The Court determined that the distance between the parties’ residence did not require a change from the long-standing shared physical custody arrangement because father was willing to continue picking up the child directly from school on Monday and Tuesdays. Father was also willing to allow the child to participate in his extra-curricular activities near mother and attend baseball games. The Court ultimately concluded that it was an abuse of discretion for the trial court to modify the shared physical custody schedule to limit father’s time with the child based upon the “slight unpleasantness child may experience as a result of a, at maximum, 35 to 40-minute car ride.”
It is important to note that there must be full consideration of the possible effect on the child of a proposed transfer of custody. Here, the trial court did not consider the possibility of harm to the child in changing the care pattern he had known. This was particularly problematic because there was evidence that mother attempted to alienate the child from father.