Is Parental Conflict Too Great for Shared Custody?
Pennsylvania Appeals Court Weighs Shared Custody Factors
Estranged parents in Pennsylvania might wonder whether a court is likely to award shared custody when there is parental conflict. Recently the Superior Court of Pennsylvania, in S.A.W. v. R.J.S. (non-precedential), No. 2214 MDA 2015 (August 5, 2016), heard an appeal from a Father hoping to overturn a shared custody decision. The Father argued that shared custody was not in the children’s best interests because the parents were incapable of cooperating with each other. The trial court agreed that they did not see eye to eye on much. Yet, the trial court held, and the Superior Court affirmed, that there was just enough cooperation to make shared custody possible.
Father and Mother were the parents of a 4-year-old child when their custody case came to court in York County. Their romantic relationship had ended a year after the child was born. From an early point on, they began to share custody equally. When the child was 4 1/2 years old, Father filed the custody proceeding, perhaps hoping to change the custody arrangement before kindergarten would start. At the hearing, the York County court heard from Mother and Father, a clinical psychologist, a CYF supervisor, and a child care director. There was testimony that custody exchanges were frequently contentious. Both parents threatened to withhold custody from each other. On one occasion, CYF had to intervene to make a parent relinquish custody to the other. Phone calls were interrupted or prevented. Medical decisions were difficult for the parents to agree upon. The parents had heated disputes in the presence of the child. The psychologist testified that the parents had no trust or respect for each other.
In fact, the court-appointed psychologist recommended that the shared custody arrangement should not continue, due to the high level of parental conflict.
The York court reviewed Pennsylvania case law — Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998) — containing four factors to make a shared custody arrangement work: (1) both parents must be fit, capable of making reasonable child rearing decisions and willing and able to provide love and care for their children; (2) both parents must evidence a continuing desire for active involvement in the child’s life; (3) both parents must be recognized by the child as a source of security and love; (4) a minimal degree of cooperation between the parents must be possible.
The York County judge recognized the high level of conflict between the parents in this case. He noted that Father was causing some of the conflict. Still, the court held that
[W]ith co-parenting classes and limited interaction at only weekly exchanges, the parties are able to cooperate at least to the extent that shared legal and physical custody is possible, and [that] is still in the best interest of [Child].
The appellate court agreed. If Father had not been identified as a major contributor to the parental conflict, he might have had a better chance at changing the custody arrangement. A shared custody arrangement may not be the best choice in every case. Perhaps, without saying so, the York and appellate courts maintained the shared custody arrangement because they did not wish to reward Father for making the parental conflict so great that it would interfere with shared custody.
This case also demonstrates that a court-appointed evaluator is not the “last word” in a custody case. Judges can and do exercise their own independent judgment. Having an effective strategy is important when embarking on a custody proceeding. The custody litigators of Pollock Begg can help you to formulate a plan for achieving important goals in a custody case. Call today at (412) 471-9000 or use our online contact form.
Brian C. Vertz is a partner in Pollock Begg Komar Glasser & Vertz LLC with decades of experience in routine and complex child support, divorce and tax-related family law cases. Author of the legal reference book “Frumkes & Vertz on Divorce Taxation,” Brian is a sought-after speaker, course planner and the author of the 2017 Family Law Update for the Pennsylvania Bar Institute. Brian is a fellow of the International Academy of Family Lawyers as well as the American Academy of Matrimonial Lawyers.