Recently, the Pennsylvania Superior Court has published two opinions reiterating the well-established case law mandating a fact-specific analysis of the children's best interests by the court in deciding custody disputes as opposed to relying on local custom, practice or judicial norms. The most recent case on this issue is the 2010 state Superior Court case of B.C.S. v. J.A.S .

The facts are as follows: According to the opinion, the case involves a custody dispute over the parties' two daughters, E.S., age 11, and C.S., age 10. Under the prior custody order, B.C.S., the mother, had primary physical custody of the children. The parties married in 1996 and separated in April 2006. B.C.S. resides in the Red Lion School District of York County, Pa. J.A.S., the father, "maintains two residences, one in Washington, D.C., where he is employed as a Captain with the District of Columbia Fire Department, and the second in Stewartstown, Pennsylvania, also in the Red Lion School District." The father maintains the Red Lion School District residence specifically so that the children may attend the schools in that district when he exercises physical custody.

On Feb. 13, 2009, J.A.S., the father, filed a petition to modify custody for equal physical custody and a two-day hearing was held July 21 and July 22, 2009. At the hearing, J.A.S., B.C.S., J.A.S.'s girlfriend and J.A.S.'s two longtime friends testified. After the hearing, the court denied J.A.S's petition and granted B.C.S. primary physical custody.

The law governing shared/equal physical custody is 23 Pa.C.S.A. §5304. Section 5304 provides: "An order for shared custody may be awarded by the Court when it is in the best interest of the child: (1) upon application of one or both parents; (2) when the parties have agreed to an award of shared custody; or (3) in the discretion of the Court." The seminal cases regarding the court awarding shared physical and legal custody are Wiseman v. Wall and In re Wesley J.K.

In Wiseman , four factors are enumerated that must be considered when awarding shared custody. The four factors are as follows: Both parents must be fit, capable of making reasonable childrearing decisions and willing and able to provide love and care for their children; Both parents must evidence a continuing desire for active involvement in the child's life; Both parents must be recognized by the child as a source of security and love; and a minimal degree of cooperation between the parents must be possible. In Wesley , the Superior Court stressed that the minimal degree of cooperation "does not translate into a requirement that the parents have an amicable relationship."

The trial court in B.C.S. found that the fourth factor of the Wiseman analysis was not met. However, the Superior Court indicated that the trial court's opinion did not identify any examples of poor communication between the parties, according to the opinion.

At the trial, the trial court expressed the following in making its decision: "[U]nless parents are really able to work well together and talk to each other frequently and see each other at sporting events and be civil and cordial, if you can't do that, then 50/50 growing up during middle school and high school is not going to be pleasant … so if you can demonstrate to me [that you can] get to that point, I'll revisit the issue. But until you can get to that point in my courtroom, you are not likely to see a shared arrangement during the school year. That's my opinion. Any questions?" The Superior Court reiterated that the trial court's personal beliefs with respect to parental communication "do not comport with well established precedent."

According to the opinion, the Superior Court indicated that the trial court failed to conduct a proper case-by-case assessment of the factors relating to the best interest of the child. The Superior Court focused on the fact that the parties use a parenting coordinator and J.A.S.'s girlfriend as an intermediary as evidence that the parties have at least attempted to "isolate 'their personal conflicts from their roles as parents,' and have a minimal decree of communication." The fact that the parties had to use a parenting coordinator may be viewed as evidence that they are unable to minimally communicate in order have shared custody.

However, the Superior Court, in its opinion, indicated that after a careful review of the record they were "reluctant to conclude as a matter of law that the parties' efforts fall beneath the 'minimal degree of cooperation' standard." Because of this, the Superior Court found that the trial court "misapprehended the law by imposing a heightened standard and concluded the court abused its discretion."

The Superior Court further analyzed the fact that custody cases should be decided on a case-by-case basis, applying a fact-specific analysis regarding the children's best interests. In its opinion, the Superior Court stressed that it was improper for the court to apply "York County practice" in deciding against a shared custody arrangement. The Superior Court stressed: "Unless the legislature determines otherwise, the law contains no presumption that primary physical custody situations are best suited for school-aged children."

The Superior Court made a point to remind practitioners and courts that it recently decided in the case of M.A.T. v. G.S.T. that the trial court in that case abused its discretion when it awarded primary physical custody based on the trial court's "personal view that shared custody is seldom (if ever) in the best interest of school-aged child[ren]." According to the opinion, the Superior Court re-emphasized "the impropriety of any custom, practice or judicial norm advancing the presumption of primary physical custody of school-age children." The Superior Court then vacated the order of the trial court and remanded the case with instructions to reconsider its decision "specifically disregarding any common York County 'practices,' and analyzing the issues consistently with the principles stated in this opinion." Interestingly, the Superior Court also directed that no new hearing was necessary.

The Superior Court did not address all of J.A.S.'s issues raised on appeal. J.A.S. raised five issues on appeal. Primarily, J.A.S.'s issues on appeal pertain to the Wiseman/Wesley analysis regarding shared custody and the fact that court applied "York County practice" as authority in granting primary physical custody to B.C.S. The Superior Court did not address the issue of the children indicating a strong preference for equal shared custody. However, the Superior Court, in the opinion, reiterated that custody decisions are based on 23 Pa.C.S.A. §5303 and reflect that the trial court "shall consider the preference of the child as well as any other factors that legitimately impacts the child's physical, intellectual and emotional well-being." The Superior Court also provided a reminder that the weight accorded to a child's preference varies with age, maturity and intelligence of the child, along with the reasons given for the preference.

This case is interesting in that it is the second case that was published this year regarding trial courts basing their decisions on personal experience and local practice. It is clear from the opinion that the Superior Court disagrees with such rulings and reminds the bench and the practitioners that custody cases are to be decided on a case-by-case basis with a fact-specific analysis regarding the best interest of the child.

MICHAEL E. BERTIN is a partner in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-chairman of the custody committee and secretary of the family law section of the Philadelphia Bar Association, and a member of council and past member of the executive committee of the family law section of the Pennsylvania Bar Association.

This article is reprinted with permission from the August 10, 2010, issue of The Legal Intelligencer. © 2010 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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