Appellant-father appeals an Order dated January 12,1988 denying his petition to modify the custody and visitation Order of July 21, 1986 and refusing to disturb the enrollment of the parties’ daughter in Forest Hills School District, Cambria County, Pennsylvania, until further order of the court. The Order also provided there would be no interference with the religious training of the parties’ children at Holy Name Church when the father has visitation and custody.
The factual and procedural history surrounding this appeal follows. The parties to this custody action were married in 1980. Two children were born of the marriage, Jessica Marie Dolan, born July 22,1982, and Thomas Dennis Dolan, born November 26, 1983. On February 28, 1986, the appellant-mother filed a complaint in divorce which included a count seeking custody of the two children. A custody Order ,was entered on July 21, 1986, awarding primary custody to the mother and shared legal custody to the father, with the father to have custody essentially on weekends, alternate holidays and two nonconsecutive weeks during the summer. The custody Order also stated, “3. The legal right to make major decisions affecting the best interests of the children including but not limited to medical, religious, and educational decisions, is hereby awarded to both parents.” This appears to be an appropriate Order under the Rules of Civil Procedure, ACTIONS FOR CUSTO
A divorce decree was entered on October 2, 1986 and a marriage settlement agreement, dated July 16, 1986, was incorporated by reference into the decree. The agreement, essentially the same as the July 21st Order, provided the parties would have shared legal and physical custody of the children, with the mother to be the principal physical custodial parent. The father was to have the same physical custody as granted in the July 21, 1986 Order. The only substantive difference between the agreement and the Order was the inclusion of Paragraph 3, as specified above, in the Order. Such an inclusion would, of course, supersede the agreement since incorporation into the divorce decree and a petition for a custody Order gave the court the power to modify the terms of the agreement in the best interest of the child. As such, the Order superseded the agreement. At 23 P.S. § 401.1 of the Divorce Code, an amendment, effective February 12, 1988, providing: “(b) A provision of an agreement [whether incorporated or merged into the divorce decree or not] regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances”, codifies the power of the court to modify an agreement of the parties, in the best interest of the child, when called upon to do so. While this section was not enacted into law at the time of the original Order, case law existed empowering the court to act.
See Supko v. Monoskey,
On May 7, 1987, the father filed a
“PETITION TO MODIFY CUSTODY AND VISITATION
ORDER” in which he stated Jessica would be five years old on July 22, 1987 and would begin kindergarten in the fall of 1987.
1
The petition indicated appellant’s preference for Jessica’s attendance at Holy Name School, a Catholic facility located in
Appellant first contends the court failed to examine the best interests of the children since it did not examine the evidence in its Opinion or make any findings in regard to the rationale behind each of the parties’ contentions and their reasonableness. Also, he argues that if the court affirmed appellee’s decision to enroll the children in Forest Hills School based on the sole fact that she has physical custody during the week, then the court’s decision is erroneous. Further, appellant urges the court erred in “reinstating” the July 21, 1986 Order, as he says this Order was modified by the agreement for shared legal custody which was incorporated as part of the divorce decree. As to the last contention, we have already discussed the relationship between agreements and Orders above, and in footnote 1, supra.
The standard of review under which appellate courts must operate in custody matters is broad; however, we may not reverse the decision of the trial court absent a gross abuse of discretion on the part of that court.
See Snarski v. Krincek,
In the instant case, a lengthy hearing was held on the issue of whether Jessica’s interests would be better served by her attendance at the local public school or the distant parochial school. Both parties testified and were cross-examined, as well as a second grade teacher from Holy Name, the superintendent of Forest Hills School District, a kindergarten teacher from Forest Hills, and a Catholic priest who is familiar with the arrangements Forest Hills parents make for the religious upbringing of their children.
The desire to have shared legal or physical custody in these cases is the result of the sociological and legal search from time immemorial, to provide a solution which Solomon could not, that is to have two parties alleging an interest in the child to have their way while retaining the wholeness of the child. Shared legal custody works only when the parents agree. Should there be a disagreement, obviously one or the other’s, and perhaps neither, view will prevail. In ' such instances, the court, while looking to the interests and desires of the parties, must ultimately rule in the best interest of the child.
Finding no abuse of discretion, we accordingly affirm the decision of the trial court as being in the child’s best interest.
ORDER AFFIRMED.
Notes
. Although the petition's caption requests modification of the custody and visitation Order, the text refers only to the marriage settlement agreement. This, of course, does not limit consideration by the trial court or this Court to the agreement, as review will encompass all relevant Orders in terms of their effect.