In L.M.S. v. M.S.S., 2018 Pa. Super. Unpub. LEXIS 51, the appellate Court issued a Decision which indicated that a child attending a pre-school nearer to the Mother’s residence was not an adequate reason to give more custody to the Mother than the Father. The trial Court considered the section 5328(a) best interest factors. The trial Court found that the factors weighed equally in favor of both parties, or did not weigh in favor of either party and despite this, concluded that Child’s best interests would be served by awarding Mother primary physical custody. The court placed emphasis on the fact that Child would soon be starting kindergarten and that it would be in his best interest “that he have the same routine on a daily basis as he moves into another phase of his life.” The implication here is that the distance of the Father’s home from the school would interfere with this routine and stability.
Father appealed this Court Determination and argued that the trial court erred and committed an abuse of discretion by awarding Mother primary physical custody of Child simply because of the enrollment of the child into kindergarten. Father argued that there had been shared physical custody since the Child was an infant. Father indicated that the evidence did not support the change in custody. In support of his position, Father relies on R.S. v. T.T., 2015 PA Super 72, 113 A.3d 1254, 1260 (Pa. Super. 2015), in which this Court rejected the conclusion that a “Child’s entrance into full-day schooling requires that one parent must have primary physical custody so that Child may establish a routine.” R.S., 113 A.3d at 1260.
In R.S., the Mother filed a petition to modify the parties’ custody agreement. The mother requested primary physical custody because the child was entering elementary school and father filed a competing petition to modify custody. The trial court held a hearing and entered an order granting the mother primary physical custody during the school year and shared physical custody over the summer months. Father filed a timely Notice of Appeal, arguing that the trial court erred in finding that “both parties agree that the current schedule requires the child to be driven in a vehicle back and forth too frequently and that time spent doing this is not in the best interest of the child.” The Appellate Court agreed that the Trial Court got it wrong. They felt that because a child begins full time school, this is not a reason to change custody. It should be noted that Father demonstrated that he would be willing to make accommodations necessary to get the child to school, there would be no reason to change custody. Thus, R.S. was in support of Father’s argument.
The Court also noted that the parents lived at different distances from the school – the Mother two miles and the Father nearly fifteen. The Court also did not find that this distance was enough to determine that a custody change was necessary. The Appellate Court reversed the Decision of the Trial Court and maintained Father’s custody time.
The bottom line here is that a child beginning school is not enough to base a custody change on – even if the argument is that such a change will benefit the child by establishing a stable schedule.