Andrew D. Taylor
Andrew D. Taylor ()

On Jan. 24, 2011, the Pennsylvania Child Custody Act went into effect and made sweeping changes to the existing child custody laws, including mandatory factors that courts must consider in making custody determinations. Yet, more than three years later, some lawyers and judges still fail to follow the mandates of the act.

Before the effective date of the act, a determination of custody was made based on only the “best interests” of the child, but little guidance was given as to what that meant. The act articulates 16 specific factors that a court must consider in awarding custody. The intent behind the factors was to promote some consistency in custody orders and restrict, to a degree, the arbitrary nature of determining child custody.

In addition, 10 factors are provided that a court must consider in determining whether to allow a parent to relocate with a child. Before the act, relocations were governed by case law.

Since the passage of the act, several trial courts have been reversed by the state Superior Court for failing to consider the mandated factors and other provisions in the act. Even now, more than three years later, judges sometimes do not apply the factors and some lawyers are still unaware of the act. Most recently, the Superior Court reversed a trial court in A.V. v. S.T., — A.3d –, (March 7, 2014), for failing to apply the custody factors and for improperly analyzing the relocations factors.

In A.V., the mother and the father had three minor children and resided in Luzerne County. The parties, by agreed order, shared legal custody and physical custody on an alternating weekly basis. The mother later moved to New Jersey and took the children to New Jersey during her weeks of custody. Thereafter, the mother requested a relocation to New Jersey, which contemplated her having primary physical custody of the children. Following a trial, the judge permitted the mother to relocate to New Jersey and awarded the father every other weekend with the children in Pennsylvania.

In justifying its decision, the trial court analyzed the 10 statutory relocation factors, which include the extent of involvement of the child’s relationship with each parent, the age and needs of the child, the ability to maintain a relationship with the nonrelocating parent, the child’s preference, whether either parent has interfered with the relationship of the other parent, whether the relocation will enhance the quality of life of either the child or the parent who wishes to relocate, the motivation of the parent seeking the relocation and whether there is any abuse in either household.

However, the trial court failed to analyze the 16 custody factors, which include whether each parent will encourage a relationship with the child and the other parent, whether there is abuse, the parental duties performed by both parents, the need for stability in the child’s life, the availability of extended family, the child’s sibling relationships, the preference of the child, any attempts to turn the child against the other parent, which parent is more likely to maintain a loving, stable, consistent and nurturing relationship with the child and attend to the daily needs of the child, how close the parents live to each other, each parent’s ability to make child care arrangements, the level of conflict between the parents, the mental and physical health of the parties and whether there is a history of drug or alcohol abuse by either parent.

While some of the relocation factors overlap with the custody factors, they are not identical and an independent analysis is required for each set. The Superior Court held that by changing the shared physical custody schedule and relegating the father to a partial physical custody schedule, the trial court modified the order, but failed to consider the custody factors. The Superior Court concluded that this was an error of law and vacated the trial court’s order.

More concerning, however, was the fact that the trial court simply adopted the mother’s arguments in her post-trial brief instead of conducting an independent analysis of the factors on the record. The Custody Act requires a trial court to “delineate the reasons for its decision on the record in open court or in a written opinion or order.” Case law interpreting the act over the past three years mandates that a trial court must set forth its mandatory assessment of the 16 factors prior to the deadline by which a litigant must file a notice of appeal. The Superior Court has previously held that there is no required amount of detail for the trial court’s explanation, but has made clear that the enumerated factors must be considered and the custody decision be based on those considerations.

In A.V., the Superior Court held that the trial court’s opinion “consists of a wholesale adoption of mother’s post-trial brief with only minor changes, such as the ordering of some paragraphs. The trial court’s decision to adopt mother’s post-trial brief and the court’s failure to articulate an individual reasoning undercuts the proper function of the trial courts and deprives this court of an independent judicial analysis, capable of appellate review.” To hammer home this point, the Superior Court, in footnotes, pointed to several portions of the trial court’s order that were lifted from the mother’s post-trial brief that had absolutely no support in the record.

The Superior Court has consistently issued published opinions in the past three years reversing trial courts for failing to analyze the mandatory factors or improperly applying the factors. A.V. is the latest example of this and the most current reminder to judges and family law practitioners to read, understand and apply the Custody Act. 

Andrew D. Taylor is a partner in the family law practice group at Weber Gallagher Simpson Stapleton Fires & Newby, where he represents individuals in all matters of divorce, support and child custody.