The Legal Intelligencer: Trial Court Reversed for Failure to Conduct Custody Factor Analysis
In an article published in The Legal Intelligencer on June 21, 2021, family law attorney Michael Bertin discusses the recent Pennsylvania Superior Court case of KB v. MF, 247 A.3d 1146 (Pa. Super. 2021), which provides an important reminder of the importance of the analysis by the trial court of the 16 custody factors listed under 23 Pa. C.S.A. 5328 when rendering a custody decision.
The KB case pertains to a custody dispute between MF (the mother) and KB (the paternal grandmother). The paternal grandmother sought custody time with her twin grandchildren. The paternal grandmother had standing to seek custody time as a result of the death of her son (the twins’ father). According to the opinion, the trial court entered an order finding that the grandmother had standing under Section 5321(1) because her son, the father of the children, had passed away.
Interestingly, there is discussion in the opinion regarding the grandmother’s requested relief to the trial court. The opinion states that the grandmother requested “visitation.” The Child Custody Act that was enacted in 2012 removed “visitation” as a defined term from the act. Under the prior law, “visitation” was defined as “the right to visit a child. The term does not include the right to remove a child from the custodial parent’s control.” In reported cases under the now-repealed law, the word “visitation” had from time to time been used incorrectly and was actually referring to partial physical custody. This was problematic. Therefore, the term “visitation” was removed as a defined term and the new act specifically stated that: “in a statutory provision other than this chapter, when the term ‘visitation’ is used in reference to child custody, the term may be construed to mean: partial physical custody; shared physical custody; or supervised physical custody.” This was provided in the act so that the description of the custody in the custody order would define what type of custody the parties would enjoy. Further, the loose use of the term “visitation” in custody opinions would not cause conflicting interpretation. However, in the KB case, the Superior Court equated the word “visitation” to “supervised physical custody.” That is inconsistent with the definitions section of the Custody Act which specifically provides that “visitation” can mean any form of custody. Hopefully, the KB case will not cause confusion regarding the term “visitation” as the removal of “visitation” as a defined term from the New Custody Act was sought to alleviate confusion.
Michael is a family law attorney who focuses his practice on child custody, child support, and divorce, including the negotiation and litigation of domestic relations cases, divorce, custody, support, alimony, property distribution, prenuptial agreements, and related issues. He is immediate past-Chair of the Family Law Section of the Pennsylvania Bar Association, a member of its Executive Committee and Council (the governing bodies of the Section), and is a former chair and member of its Procedural Rules Committee, Legislative Committee, and Program Committee. Michael is a former Chair of the Family Law Section of the Philadelphia Bar Association and the current co-chair of its Custody Committee. He is a former member of the Board of Managers (the governing body) of the Pennsylvania Chapter of the AAML. Michael also serves as chair of Obermayer’s Pro Bono Committee.