A recent Pennsylvania Superior Court decision has determined that a trial court judge in a child custody case must consider factors set forth in Pennsylvania’s newly enacted child custody statute in making an award of child custody.

On November 23, 2010, the Pennsylvania legislature enacted the Child Custody Act, Act No. 112 of 2010. The law took effect on January 24, 2011. Section 23 Pa. C.S.A. § 5328(a) sets forth factors the trial court must consider when awarding any form of custody. The law provides as follows:

In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

  1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
  2. The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
  3. The parental duties performed by each party on behalf of the child.
  4. The need for stability and continuity in the child’s education, family life and community life.
  5. The availability of extended family.
  6. The child’s sibling relationships.
  7. The well-reasoned preference of the child, based on the child’s maturity and judgment.
  8. The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
  9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
  10. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
  11. The proximity of the residences of the parties.
  12. Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
  13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
  14. The history of drug or alcohol abuse of a party or member of a party’s household.
  15. The mental and physical condition of a party or member of a party’s household.
  16. Any other relevant factor.

In the case of J.R.M. v. J.E.A., 2011 Pa. Super. 263 (Pa. Super. 2011), the Pennsylvania Superior Court determined that the trial court erred by failing to consider the factors it was required to consider in deciding custody of an infant. Prior to the litigation, Mother and Father were engaged but separated shortly after learning Mother was pregnant. Mother and Father did not communicate well and Mother did not inform Father that the child was born. Father sought visitation of the child after birth, which Mother permitted with supervision. Mother filed a complaint for custody seeking shared legal custody and primary physical custody. Father also filed a complaint for shared legal custody and primary physical custody. Following a failed conciliation conference, the judge held a hearing.

At the custody hearing evidence was offered to show that Mother was breastfeeding the child and expected to do so until the child turn eight months old. Mother was on leave from her job and worked as a babysitter for her employer’s children. She also lived in her employer’s basement apartment. Father resided approximately two hours away and lived with his ex-wife and current fiancé. Father was employed in a management position.

Following the evidentiary hearing, the trial court awarded the parties shared legal custody and Mother primary physical custody. Father was to have partial physical custody but with restrictions. The trial court determined that until the child reached the age of 8 months or is no longer breast feeding, whichever occurs sooner, Father was to have temporary custody 3 days per week, mainly Tuesday and Friday from 4:00 p.m. to 7:00 p.m. and Sunday from 1:00 p.m. to 4:00 p.m. with periods of custody exercised at a church where the parties previously met for Father’s visits or a location agreed to by the parties. During these temporary custody periods Mother or other suitable caregiver could be in the general area but not in the same room. The trial court further provided that once the child reached 8 months of age or is done breast feeing, whichever is sooner, the parties will agree on a location for Father’s periods of custody in the general vicinity of Indiana, Pennsylvania and all his periods of time with the child will be expanded by 1 hour each days as with specifics to be agreed upon by the parties. The trial court finally ordered that the long term goal was for to have visits at his home and overnights with the child when the child is of appropriate age. Id.

In reversing the trial court’s custody determination, the Superior Court reasoned that the trial court based its decision mostly on the fact that the child was breast feeding and that the parties had difficulties communicating with one another. However, the trial court did not mention which party would be more likely to encourage contact with the non-custodial parent, the parental duties performed by each parent, which party could provide greater stability and continuity for the child, the presence of extended family, attempts by either party to turn the child against the other parent, the parent that is more likely to provide a relationship consistent with the child’s emotional needs, which parent is more likely to attend to the child’s daily physical, developmental, educational and emotional needs, any drug or alcohol abuse by either parent and his / her household members or the mental and physical condition of each parent and members of his / her household. Id.

The Superior Court made it clear in this case that all of the factors listed in section 5328(a) of the child custody statute must be considered by the trial court when entering a custody order.

Furthermore, since the trial court imposed restrictions on Father’s custody of the child, the Superior Court went on to reiterate that an award of partial custody generally does not contain any restrictions. See Fatemi v. Fatemi, 489 A.2d 798, 801 (Pa. Super. 1985).

Here, the trial court ordered that Mother or any other suitable caregiver may be present in the area where Father is visiting with the child. However, there was nothing in the record or in the trial court’s findings to explain why another “suitable” caregiver would need to be present while Father visits with the child. The trial court did not find that Father was unfit or unable to care for the child or that he posed any sort of threat to the child if unsupervised. Additionally, the restriction that precluded Father from having overnights with the child was not supported by facts in the record for findings by the court. The Superior Court noted that there was no finding that visitation in Father’s home would be detrimental to the child, that Father’s home was not appropriate for visits with the child or that Father or anyone living his home posed a threat to the child. Since there were no facts in the record or findings made by the trial court to support the restrictions imposed by the trial court, the Superior Court found the imposition of such restrictions to be unreasonable. Id.

If you have a child custody case, it is strongly recommended that you consult with an experienced child custody attorney. Our experienced custody attorneys are ready and able to sit down with you to explain the law and advise you on the best way to handle your case.


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