Here’s a dilemma – the custody agreement says “primary physical custody to dad”, but mom has the child 9 out of 14 nights in every two week period. What should a court do when dad files for support, based upon the language in the agreement saying he has primary physical custody?

Although not directly on point, our Superior Court has held, in Riley v. Foley, 783 A.2d 807 (Pa.Super. 2001), that where an order provided that father was to have shared physical custody based upon certain conditions precedent, even where those conditions existed, if Father did not actually have the child in his custody, he was only entitled to a credit against his support obligation when the actual schedule went into effect. In Riley, the court order provided that father would have the ability to have a fifty percent (50%) custodial schedule with the children if he moved closer to the mother. Father moved, but Mother refused. After a hearing, custody was changed to an equally shared physical schedule.

However, in calculating support, the trial court order gave father a credit from the date the condition precedent was fulfilled, i.e. the date he moved closer to the mother. However, on appeal, the Superior Court reversed, noting that actual shared custody must occur for the credit to be given to the father.

Interesting that basically mother’s contempt in Riley made her some money.  Based upon this case, In our example, mom should receive support notwithstanding the “primary physical custody” language in the agreement. But will she?!