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S.W.D. v. S.A.R.

Superior Court of Pennsylvania

July 11, 2014

S.W.D., Appellant
S.A.R., Appellee

Argued January 30, 2014.

Appeal from the Order of the Court of Common Pleas, Armstrong County, Civil Division, No: 2009-0579. Before PANCHIK, J.

Robin L. Frank, Pittsburgh, for appellant.

Kenneth R. Harris, Jr., Butler, for appellee.



Page 397


In this child custody case, S.W.D. (Father) appeals an order that denied his petition for special relief. Father had requested the trial court to order his and S.A.R.'s (Mother) son, B.A.D. (Child), to be enrolled in the school of Father's choice and to ratify an informal change to the physical custody schedule. Regarding Child's schooling, we hold the trial court did not abuse its discretion in ordering Child enrolled in the school of Mother's choice. Regarding physical custody, however, we hold the trial court erred by not addressing all the child custody factors as required by the Child Custody Act (Act), 23 Pa.C.S.A. § § 5323(d), 5328(a). We therefore affirm in part, vacate in part, and remand to the trial court for proceedings consistent with this opinion.

Page 398


This case began when Father filed a complaint for custody of Child. The trial court held a full hearing, and issued a final custody order dated January 8, 2010.[1] Under the order, Mother and Father have shared legal custody. Mother has primary physical custody. Father has partial physical custody every Tuesday from 5:30 p.m. until Thursday at 5:30 p.m., and every other weekend from Friday at 5:30 p.m. until Sunday at 5:30 p.m. Sometime in September 2012, the parties informally agreed to modify their custody arrangement to a 5-2-2-5 schedule (the " informal change" ).[2]

In April 2013, Father filed a petition for special relief raising two issues: Child's schooling and a change to the custody schedule. Father asked the trial court to approve his choice of school and to ratify the informal change to custody, which he believed was a modification to the January 8, 2010, final custody order. The trial court held an evidentiary hearing on August 2, 2013. Father and Mother were the only witnesses who testified.

At the time of the hearing, Child was five years old and about to enter kindergarten. He had attended preschool in Worthington, Armstrong County, not far from Mother's residence. Father wanted to place Child in Harvest Baptist Academy, a private Christian school in Westmoreland County, closer to where Father lives. Father preferred Harvest Baptist Academy because it would shorten his time to take Child to school following his custody days. Harvest Baptist Academy is about 8.5 miles from Father's residence and 13.5 miles from Mother's. Father also considered Mother's religion, Baptist, in choosing a school. Father intended to pay the school's tuition, except that he wanted Mother to contribute about $80.00 per month, the same amount she had been paying for preschool. Though Harvest Baptist Academy teaches students in kindergarten through 12th grade, Child's enrollment there was to be only temporary, because Mother's school district offers more classes and extracurricular activities.

Mother instead enrolled Child in West Hills Primary School, where she lives, in Armstrong School District. Despite having shared legal custody, Mother did so without Father's knowledge or consent, and omitted his name and information from all of Child's educational records. Mother preferred West Hills Primary School because it would be more permanent, and Child would not have to change schools or school districts. Also, Child already knew several children from attending preschool there.

After the hearing, the trial court denied Father's petition. In its written memorandum, the trial court, after quoting 23 Pa.C.S.A. § 5328(a), explained its decision as follows:

Considering all those factors above that are relevant to the issues now before us, we find that it is in the Child's best interest to remain enrolled at West Hills Primary School, with the parties continuing to follow the custody schedule set forth in the [c]ourt's January 8, 2010 Order. The parties both understood that enrollment at Harvest Baptist Academy would potentially, if not likely, be a temporary arrangement. The Child would then have to change schools

Page 399

and school districts late on in his educational career, which we find to be unnecessary and not suited to maintaining consistency in his life. We further find that Father's chief concern with West Hills Primary School is not its academic reputation, but instead its distance from his residence. Although we are not unsympathetic to a parent's difficulty and expense in providing transportation for custody exchanges, we do not find Father's concern in this regard to be weighty enough to warrant the move to Harvard Baptist Academy. We have been presented with no competent, persuasive evidence that the Child cannot receive a quality education at West Hills Primary, which will be free of charge to the parties. We therefore will order that the Child remain enrolled there.
With regard to the parties' physical custody schedule, we note that the schedule contained in the January 8, 2010 Order was never changed in this [c]ourt. The parties, of course, are free to modify the order as they see fit. However, we have been presented with no evidence to suggest that the current 5-2-2-5 schedule is more in the Child's best interest than the previous schedule that the [c]ourt ordered after a full custody hearing. We also are convinced that the current schedule was intended by the parties to be temporary in nature, subject to the discontinuance if either of the parties became unsatisfied with it or believed it to be unbeneficial to the Child. The parties thus should continue the custody schedule contained in the January 8, 2010 order, except as they may otherwise mutually agree.

Trial Court Opinion, 8/14/13, at 6-7 (emphasis in original). The trial court ordered (1) Child to be enrolled at West Hills Primary for the 2013-14 school year; (2) Mother to provide West Hills Primary with Father's contact information and designate Father as a legal parent or guardian; and (3) the parties to follow the final custody order entered on January 8, 2010. The trial court deemed the first two provisions non-negotiable.

Father timely appealed to this Court and filed a concise statement of errors complained of on appeal. In response, the trial court issued a Rule 1925(a) memorandum resting on its previous opinion, except to additionally address Father's contention that the court abused its discretion in maintaining the custody schedule established by the January 8, 2010 order.

Father presents four issues for our review:

I. Whether the trial court abused its discretion by denying Father's request to enroll the minor child in Harvest Baptist Academy, which is contrary to the best interests of the Child?
II. Whether the trial court committed an abuse of discretion by failing to enforce the established status quo custody schedule and by instead reinstating the custody schedule from a past order of court?
III. Whether the trial court committed an abuse of discretion by denying Father's request to enroll the Child in the Harvest Baptist Academy, which is against the weight of the evidence presented at trial?
IV. Whether the trial court committed an abuse of discretion and erred in failing to consider all of the custody factors set forth in 23 Pa.C.S.A. § 5328(a), and by failing to account for the required factors in reaching its decision?

Appellant's Brief at 12. For ease of discussion, we first address the schooling issue. We then turn to the request to ratify

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the informal change to the custody ...

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