K.F. Appellant S.S. Appellant
from the Order Entered September 6, 2017 In the Court of
Common Pleas of Bucks County Civil Division at No(s):
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM, [*] J.
("Father") and K.F. ("Mother")
cross-appeal from the Amended Custody Order entered in this
case. We vacated the Order on May 8, 2018, and ordered the
trial court to schedule a hearing on the issues of primary
custody and school choice within 45 days of our
Order. We now issue this decision. We conclude
that the trial court abused its discretion in ordering the
parties to keep their children enrolled in a school district
where neither party resides, and in ordering the parties to
split the cost of the resulting public school tuition.
and Mother are the biological parents of three children: A.S.
(born 2005), K.S. (born 2007), and M.S. (born 2009)
(collectively, "the Children"). Father and Mother
were never married, and separated in 2011. After that time,
Mother resided in Levittown, and Father in Bensalem. Both
residences were in Lower Bucks County, approximately eight
miles apart. See Amended Order, 8/31/17, at 15.
several years following their separation, the parties shared
physical custody of the Children informally. Aside from
Sunday evenings, which were always spent with Mother, the
Children spent equal time with each parent. Mother would
exercise custody of the Children after school and day care on
Mondays and Wednesdays until the following morning, and every
other weekend following school and daycare on Friday until
Monday. Father would exercise custody after school and day
care on Tuesdays and Thursdays until the following morning,
and every other weekend following school and daycare on
Friday until Sunday evening. The older Children attended
school in Pennsbury School District, where Mother resided.
October 2015, Father filed a petition for custody. Father
asked the court to grant the parties shared legal and
physical custody, and that the Children receive equal time
with both parents. The trial court held a hearing in March
2016, after which it ordered the parties to undergo
evaluation by Court Conciliation Evaluation Services
("CCES"). It also ordered them to continue with the
same custody arrangement.
filed a Petition for Relocation in June 2016, in which she
stated that she desired to move to East Coventry, Chester
County to live with D.S., her boyfriend. D.S.'s home is
approximately 54 miles from Father's home in Bensalem.
See Amended Order at 15. Mother proposed that the
court modify the custody arrangement to give Mother primary
custody, with Father exercising custody every other weekend.
She also proposed that the Children be enrolled in Owen J.
Roberts School District. Mother contended that D.S.'s
large house and yard in Chester County would provide a better
quality of life for the Children than her small apartment in
Levittown. She also maintained that Owen J. Roberts School
District is superior to both Pennsbury School District and
Bensalem School District, and generally argued that she has
always been the primary caretaker of the Children and is a
better parent than Father.
court held a custody trial spanning three days in July 2017.
At trial, Mother testified that she lost her job in April
2017, and, due to her unemployment, did not renew her lease
in Levittown. Mother stated that she was financially unable
to remain in Bucks County, and had already begun living with
D.S., whom she married in January 2017. Mother asserted
various reasons why, in her view, it would serve the best
interests of the Children for Mother to have primary custody
and for the Children to attend schools in Owen J. Roberts
not only opposed Mother's Petition, but also sought
primary custody and requested that the Children enroll in
Bensalem School District, where Father resides. Father set
forth reasons why Mother's relocation request should be
denied, including Father's history of parenting the
Children nearly 50% of the time and the preservation of the
Children's familial and social ties. Father testified
that his income is roughly $38, 000 per year, and that he
pays Mother court-ordered monthly child support.
also asserted that if Mother relocated to Chester County, he
would be willing to move from Bensalem to Pennsbury School
District. Father's counsel characterized Father's
position to be that "if Father had primary custody here
in the Lower Bucks area, and Mother moved to the [Chester
County] area, that . . . if it turns out that the Court feels
that the Bensalem school system is not appropriate for the
[C]hildren, . . . then he would list the house within 90 days
in an attempt to move to the Pennsbury School District which
is a quality school in that area and would not interfere with
his business in terms of location." N.T., 7/13/17 (A.M.)
court entered a Custody Order on August 11, 2017. In the
Order, the court discussed the relocation factors under 23
Pa.C.S.A. § 5337(h) and denied Mother's request to
relocate. The court found that Mother's move was
motivated by her relatively new marriage, which did not
justify disruption to the Children's schooling or access
to friends and relatives. The court also concluded that
Mother sought to minimize Father's contact with the
Children, whereas the court believed that it was "in the
best interest of the Children to maintain a substantial
relationship with both parents as they have throughout their
lives." Order, 8/11/17, at 9.
court then discussed the custody factors of 23 Pa.C.S.A.
§ 5328(a) and awarded the parties equal physical
custody, which was to be exercised on a rotating weekly
the Children's education, the court ordered that the
Children remain enrolled in Pennsbury School District,
because "educational stability is in the Children's
best interests." Order, 8/11/17, at 18. In making this
determination, the court stated it relied in part on
"Father's testimony that he and his new wife would
list their current house for sale and move into Pennsbury
School District should the Court deny Mother's relocation
as Father desired to have the Children remain in Pennsbury
School District." Id. The court ordered that
"one (1) or both parents shall continue to reside within
the District or shall otherwise ensure compliance with this
Order in the best interests of the Children."
Id. at 19.
parties filed Motions for Reconsideration of the Order, on
the basis that neither party resided in Pennsbury School
District. Mother filed a Petition for Contempt based on
Father's failure to move into Pennsbury School District.
Father likewise filed a Petition for Contempt, arguing that
Mother was exercising partial custody of the ...