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Custody and travel: A Superior Court decision

When a trial court makes a custody determination, it has the benefit of being present at the trial, assessing the credibility of witnesses personally etc. So, when an appeals court reviews a custody decision, the trial court's decision must be "an abuse of discretion" (i.e. completely unreasonable) in order to be overturned.

In the case of R.S. v. T.T. 2015 Pa. Super 72 (April 10, 2015), the two parents has shared (50/50) custody. The father then moved to a new neighborhood 11 miles away. lengthening the commute time to school to 15-20 minutes (according to father) or 35-40 minutes (according to mother). In a recent published decision, the Superior Court of Pennsylvania considered whether it was reasonable to shift primary custody to one parent in order to limit the child's commuting time.

The trial court awarded mother primary custody of the 6 year old child because equally shared custody would require the child to commute up to 40 minutes to and from school, if father retained shared custody. Both parents seemed to agree that a shared custody schedule would require the child to spend too much time riding back and forth in a car. Mother testified that a shared custody schedule had become impractical when the child start to attend full day elementary school, as it would prevent the child from establishing predictable routines and establishing roots. The trial court agreed, holding that the commuting would undermine the child's stability.

The Superior Court disagreed, overturning the trial court's decision. First, the Superior Court noted that the trial court did not consider the harm to the child by uprooting his parental care pattern. The Superior Court also agreed with father that the trial court decision was more problematic because mother was less likely to encourage contact with father then the reverse. Second, the Superior Court was concerned about the harm to the child caused by reducing the child's time spent with father. In short, the Superior Court found a child's attachment to his parent was more important (as a matter of law) than avoiding a potential 40 minute daily commute to school.

The Court emphasized the importance of considering all ramifications stemming from a change in the custody arrangement. Finding that the trial court had not adequately considering the potential damage to the child's relationship with his father, the Superior Court noted that in Pennsylvania,:shared custody should be awarded based upon four factors:

(1) Whether both parents are fit, capable of making reasonable child rearing decisions, and willing and able to provide love and care for their children; (2) whether both parents evidence a continuing desire for active involvement in the child's life; (3) whether the child recognizes both parents as a source of security and love; and (4) whether a minimal degree of cooperation between the parents is possible.

The Superior Court found that all four of those factors applied in this case and that, therefore, shared physical custody was in the child's best interest.