Father Wins Primary Custody by Presenting a Well-Conceived Plan

January 17, 2013 | Blog, Child Custody

Icon for author Brian Vertz Brian Vertz

A new unpublished memorandum opinion of the Superior Court  illustrates what we tell clients all the time in custody cases: Those who have a clear plan for the children are more likely to prevail. In C.H. v. D.M.T.H., No. 1500 MDA 2012 (memo op., January 17, 2013), the Superior Court considered a custody case emerging from a virtually-equal shared custody arrangement, in which the child lived with mom four overnights per week and dad three overnights. After a two day custody trial, the court awarded father primary physical custody of a child who was just about to start kindergarten, based on several factors:

  • Father remained in the marital residence after separation, while Mother moved at least four times.
  • Mother moved to a different school district.
  • After a PFA order, which Father permitted while denying the specific allegations, Father continuously pursued counseling and therapy to address his mental health issues.
  • Father carefully investigated the school district, its programs for special needs students, the available child care facilities, and therapeutic counseling for the child.
  • Father advocated co-parenting counseling so that the parents could work out disputes outside of the child’s earshot.
  • Father demonstrated concern for the child’s need for routine, in light of his Aspberger’s Syndrome.
  • Mother focused on her past role as the stay-at-home parent while married to Father.
  • Mother criticized Father’s child care plans but did not present a more organized child care plan of her own.
  • Mother presented no evidence of her ability to transport the child to and from his existing school district.

In the case as in many others, the prevailing parent is the one who anticipates all of the details of the child’s daily life, rather than focusing on the history and conflict between the parents. Father did his homework and made a thoughtful plan for the child that a judge could understand and follow, while Mother’s vision was unclear and reactionary.

Mother argued that the trial court was improperly influenced by testimony concerning her religious practices. Father had testified that many activities included the consumption of alcohol in the presence of children, and involved persons possessed by spirits, which might confuse or frighten the child. The trial court wrote that it was not prejudiced against mother’s pagan religious practices, and Mother produced no evidence to disprove that statement, so the Superior Court was not persuaded.

Mother also appealed the trial court’s decision to redact the child’s mental health treatment records, limiting the evidence to the child’s progress in treatment and whether the parents ensured his attendance at appointments. Perhaps the trial judge viewed mom’s request for full disclosure of the mental health records as disregarding the child’s feelings or undermining therapeutic relationship. The trial court’s decision was affirmed on appeal.

Note: this memorandum opinion cannot be cited for any purpose in a Pennsylvania court. It is reported on this site merely to assist readers to understand the logic and reasoning that are routinely applied in our courts.

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