In the years following the enactment of the new Child Custody Act in Pennsylvania, attorneys and the bench set sail on uncharted waters. Family law attorneys waited anxiously to read appellate court decisions published following the enactment of the act for guidance as to its interpretation and application. It has been an interesting journey since January 2011, when the act became effective, and the interpretation of the act has continued to evolve.

An issue that has remained a hot topic among the bar and the bench has been the analysis, application and delineation of the 16 custody factors under 23 Pa. C.S.A. Section 5328(a). The appellate decisions published in the wake of the passage of the act directed trial courts to address all 16 factors and delineate their reasoning for their decisions and application of the factors at the time that the decision is made or shortly thereafter in the order. Refinements to such a requirement have occurred in subsequent cases. The recent case of M.O. v. J.T.R., 2014 Pa. Super. 15 (Feb. 4, 2014), addressed a new wrinkle. What are litigants and their attorneys to present to the court when a "subsidiary" issue is brought before the court that does not affect the determination of which party will have primary custody and does affect the amount of time that each party has with the child? Similarly, what is the court to do with regard to analyzing the 16 custody factors and delineating same on the record or in the order after making a decision regarding the subsidiary issue? These issues were addressed head-on in the M.O. case.

In the M.O. case, M.O. (the mother) had primary physical custody of the parties' two minor children (the parties' third child was emancipated). J.T.R. (the father) had partial physical custody and six weeks of custodial time during the summer. The parties' custody order, originally entered in Tennessee, was subsequently registered and modified by consent in Pennsylvania. The present order provided J.T.R. with five weeks of summer custodial time with the children.

In January 2013, J.T.R. filed a petition to modify custody, "seeking more time with the children, a change in transportation responsibilities, and clarification of the prior order." An order was issued after a conciliation conference that provided J.T.R. with five weeks of summer custody, "but required the father to be off from work during his vacation time with the children." Thereafter, J.T.R. filed the appropriate paperwork with the court seeking a trial on his modification petition.

According to the opinion, prior to the hearing, the parties resolved all issues by agreement with the exception of "a single narrow issue: that is, whether the father would be required to be off from work during three weeks of his summer custodial vacation time." As reflected in the opinion: "The father has five total weeks of summer custodial vacation time, two of which always take place during the first two weeks of July when his employer's plant is closed annually."

At the hearing, the parties presented very limited testimony regarding the single issue of whether J.T.R. would be required to be off from work during the three weeks of his five-week custodial period with the children. The trial court issued its decision from the bench immediately at the conclusion of the hearing and set forth its reasons for its decision. In the trial court's decision, it modified the custody order resulting from the conciliation and permitted the father "not to have to take off from work during three of his five custodial vacation weeks."

After the trial court's decision, M.O. filed a motion for reconsideration, as well as a notice of appeal. M.O. raised three issues on appeal, one of which was deemed waived by the Superior Court and will not be addressed in this article. The mother's remaining two issues on appeal pertained to whether the trial court committed an error of law and/or abuse of discretion in failing to consider all 16 factors contained under Section 5328(a), and failing to delineate the reasons for its decision on the record pursuant to Section 5323(d).

According to the opinion, "the trial court determined that, because the hearing was limited to a single discreet and narrow issue, it was not required to address each of the 16 factors." Further, the trial court held that most of the factors contained in Section 5328(a) were not relevant to the single issue before the court. The trial court also indicated that its reasons for the award were stated on the record. The Superior Court agreed with the trial court and affirmed the trial court.

In affirming the trial court's decision, the Superior Court conducted a detailed analysis of what is considered a custody determination. The Superior Court held that: "The plain language of Section 5328(a) requires that the 16 enumerated factors be considered when the court is determining a child's best interest for the purpose of making an award of custody." The Superior Court cited Section 5323(a) as defining an award of custody as being: "(1) shared physical custody; (2) primary physical custody; (3) partial physical custody; (4) sole physical custody; (5) supervised physical custody; (6) shared legal custody; and (7) sole legal custody." The Superior Court further pointed toward Section 5323(d) as stating that the reasons for an award are as follows: "The court shall delineate the reasons for its decision on the record in open court or in a written opinion or order." In the Superior Court's decision, in citing Section 5338, the Superior Court highlighted that the act provides: "Upon petition, a court may modify a custody order to serve the best interest of the child." The Superior Court found: "While the court must consider the child's best interest when modifying a custody order, the modification provision does not refer to the 16 factors of Section 5328. The cases in which we [the Superior Court] have applied Section 5328(a) have involved an award of custody as defined by Section 5323(a) or have involved modification that also entailed a change to an award of custody."

Although the trial court's ruling in the M.O. case modified the prior order, it did not change the underlying award of custody. Therefore, the Superior Court found that Section 5328(a) was not implicated directly by the specific facts in the M.O. case. The trial court was not exempt from determining that the modification it made was in the best interest of the children. The trial court's decision was in the children's best interest as it considered "the children's ages, the distance between the parties' homes, the difficulty for the father to comply with the requirement that he take five weeks off from work during the summer, the value to the children of being with the father, the lack of any indication that the father's employment raised a concern about the children's welfare or safety, and the sufficiency of a provision that the father provide adequate supervision while he is at work." The decision also highlights that the trial court stated that it considered the factors under Section 5328 that were relevant to the decision.

The Superior Court found that the trial court did not make an award of custody in the M.O. case. Instead, the Superior Court found that the trial court "merely modified a discreet and narrow ancillary issue." Therefore, the Superior Court found that the trial court was not required to analyze all 16 custody factors and was not required to delineate the reasoning for its decision on the record. In a footnote to the case, the Superior Court stated that to require otherwise would "impose an undue burden on trial courts and, by extension, on custody litigants." In the same footnote, the Superior Court highlighted that many custody-related issues are raised in motions and are similar to the issue raised in the present case. The Superior Court stated that it would be overly burdensome "for the trial court to have to consider all 16 factors explicitly on the record every time a litigant argues a motion seeking, for example, to change the custody exchange location or to decide whether a child plays sports in one parent's municipality or the other's."

This case is important for the family law practitioner and the bench because it further refines the requirements in presenting and deciding issues pertaining to child custody under the new custody act.

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book "Pennsylvania Child Custody Law, Practice, and Procedure." Bertin is the immediate past chair of the family law section of the Philadelphia Bar Association, co-chair of its custody committee, and chair of the rules committee and member of council of the family law section of the Pennsylvania Bar Association.

Analysis of Child Custody Factors in Awards on Subsidiary Issues (pdf)

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Reprinted with permission from the May 13, 2014 edition of THE LEGAL INTELLIGENCER © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 347-227-3382, or visit # 201-05-14-07