In January 2011, when Pennsylvania's child custody laws were rewritten, the provision in the new Child Custody Act requiring the trial courts to state the reasons for their decisions either on the record in open court, in a written opinion, or in the order was welcomed with open arms as it was believed that it would provide more transparency for the litigants and enable them to better understand the reasoning behind the decisions. The mystique of a decision can lead to more disgruntled litigants and more appeals. Knowing why the court made a decision can go a long way in helping a litigant cope with a decision of a trial court in child custody litigation.

In child custody cases, it is not uncommon for a custody order to be orally delivered by the judge in open court. This appears to be even more common in recent years, since revisions to the Rules of Civil Procedure and the Superior Court cases that have been decided after the enactment of the custody statute in 2011 reiterate that custody decisions should be delivered swiftly. Similarly, if an agreement between parties is reached on the day of a trial at court, it is not uncommon for the agreed order to be read into the record in open court. When the order is either delivered orally by the court or read into the record, the transcript becomes the actual custody order. The problem with the method of the order being read into the record is that the "order" can end up being many pages long and hard to follow. To complicate things, some attorneys and parties interrupt while either the court or other attorney reads the order into the record, which makes the transcript/order that much harder to follow.

The issue of orders being placed on the record in custody cases was addressed head-on in the recent Pennsylvania Superior Court case of R.L.P. v. R.F.M., 110 A.3d 201 (Pa. Super. 2015). In R.L.P., the trial court directed the court reporter to transcribe 46 pages of a trial transcript to serve as the custody order. After R.L.P. appealed the trial court's order directing the transcription of the 46-page portion of the transcript to serve as the custody order, at the direction of the Superior Court, the trial court issued a separate written custody order. Thereafter, the separate written custody order was reviewed by the Superior Court on appeal and affirmed.

Pursuant to 23 Pa.C.S. 5323(d) and Pa.R.C.P. 1915.10(b), the trial court must consider all 16 factors of Section 5328(a) and shall state the reasons for its decision either on the record in open court, in a written opinion, or in the order. Many cases decided since the enactment of the new custody statute (and Rule 1915.10(b) thereafter) have held that when entering a custody order, the court must specifically address the factors enumerated under 23 Pa.C.S. Section 5328(a) preferably by the time the custody order is issued or shortly thereafter.

Because of the Superior Court cases decided since the enactment of Section 5323(d) and the promulgation of Rule 1915.10(b), trial courts have commonly analyzed each of the 16 factors in open court. In some instances a formal written order would follow and in others it would simply be put on the record and transcribed.

In the R.L.P. decision, the Superior Court specifically stated: "We publish to clarify Rule 1915.10(b) of the Pennsylvania Rules of Civil Procedure to [e]nsure that the terms and intent of future custody orders are clear." According to the opinion, transcript orders include exchanges between the trial court and counsel and the parties and the transcript order in the R.L.P. case "must be read and re-read to determine exactly which party should have custody at any given time. This 'order' is not sufficiently specific to be enforceable." The Superior Court further reasoned: "The trial court's two-page order ... on the other hand, is a model of clarity. It reduces the convoluted, back-and-forth discussion [on the transcript], to two pages of easily understood explanation of which parent has custody and when." Importantly, the Superior Court stressed that with regard to the written custody order: "Enforcement is possible because the order specifies which party has custody at any given time." In the opinion, over a page of examples of the back-and-forth of the court and counsel during the portion of the transcript that served as the order was provided to demonstrate the difficulty in following the order and enforcing same. When a transcript order is hard to follow, it is hard to enforce.

Therefore, the Superior Court held, "A custody order may not be entered as a transcript from any trial or hearing." In clarifying Rule 1915.10(b), the court stated: "To [e]nsure that the terms and intent of future custody orders are clear: we hold that, in order to be sufficiently specific to be enforced, an order of custody must be entered as a separate written order, or as a separate section of a written opinion." The court further held, "If entered as a separate section of an opinion, it must be designated as such by the use of the heading titled 'Order.'"

This is a very important case for the bench and the bar. It is clear that all child custody orders must now be in the form of a written order or part of a specifically titled portion of a written opinion titled "Order" and the days of putting the custody order on the record are now behind us. So now what happens to the requirement that the court shall set its reasons for its order and analyze the 16 factors? The Superior Court in the R.L.P. case stated that the decision "is not intended to in any way abrogate the instruction set forth in Section 5323(d) regarding the trial court's reasons for its decision ... but to address the necessary form of the trial court's custody order." Therefore, the R.L.P. case does not spell the end of the 16-factor analysis.

Child Custody Orders Must Be Separate Written Orders.pdf

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 a fellow of the American Academy of Matrimonial Lawyers, a former chair of the family law section of the Philadelphia Bar Association, the current co-chair of its custody committee, and treasurer of the family law section of the Pennsylvania Bar Association.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

Reprinted with permission from the May 12, 2015 edition of THE LEGAL INTELLIGENCER © 2015 ALM Media Properties, LLC.  All rights reserved.  Further duplication without permission is prohibited.  For information, contact 877-257-3382, or visit #201-05-15-03