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S.S. v. K.F.

Superior Court of Pennsylvania

June 7, 2018

K.F. Appellant S.S. Appellant

          Appeal from the Order Entered September 6, 2017 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2015-61893, 2015-61893

          BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM, [*] J.


          McLAUGHLIN, J.

         S.S. ("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.[1] 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.

         Father 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.

         For 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.

         In 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.

         Mother 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.

         The 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 School District.

         Father 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.

         Father 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.) at 29-30.

         The 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.

         The 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 basis.

         Regarding 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.

         Both 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 ...

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