The evolution of the courts' application of the new child custody statute continues at a consistent pace. A recurring issue that has been addressed by the Pennsylvania Superior Court pertains to the requirement of the trial court to provide the reasons for its decisions in custody cases on the record in open court or in a written opinion or order.
Recently, the Superior Court addressed the timing of when the trial court is required to delineate the reasons for custody decisions. In the case of C.B. v. J.B., 2013 Pa. Super. 92 (April 22, 2013), the Superior Court held that the trial court must specify its reasoning for its custody decisions at or near the time of the ruling and not wait until it issues a 1925(a) opinion in the event of an appeal.
Section 5323 of the custody statute is titled "Award of Custody." Under Subsection (d) titled "Reasons for Award," the statute provides: "The court shall delineate the reasons for its decision on the record in open court or in a written opinion or order." Prior to the C.B. decision, there was debate as to when the written opinion or order had to be provided by the trial court. In the C.B. case, the issue was whether the trial court could provide a written opinion when it submitted its 1925(a) opinion. The Superior Court went into great depth in interpreting the statute. The Superior Court stated that: "Under such an interpretation, a trial court might delay in explaining the basis for its ruling for as long as it retains jurisdiction, potentially until after the expiration of a litigant's time to appeal the custody ruling." Further, the Superior Court stated: "Such an interpretation would mean that a trial court might never delineate its reasons; inasmuch as most custody decisions are not appealed. … This would guarantee that, in many cases, the trial court would never comply with the statute." The Superior Court found that such an interpretation would render the mandatory language of Section 5323(d) meaningless. The Superior Court also found that such an interpretation would cripple litigants in the appeal process. Litigants and attorneys would be forced to guess why the court made its ruling and potentially waive issues to be raised on appeal. On the other end of the spectrum, litigants may file overly broad appeals in an effort to capture all potential issues on appeal due to the fact that they do not know the reasoning behind the court's decision. As such, the Superior Court in the C.B. case found that the trial court is required to render its reasons for the award at or near the time it issues its decision in custody proceedings.
The Superior Court in the recent case of M.P. v. M.P., 54 A.3d 950 (Pa. Super.2012), also reiterated the trial court in that case erred when it "failed to provide its reasoning until the appeal was taken." As such, when a court makes an award of custody, it is clear that the reasons for the award must be delineated and provided at or near the time that the decision is made.
However, regardless of the C.P. and M.P. decisions, a gray area remained with regard to child relocation cases. Relocation requests are governed by Section 5337. The only section in the new custody act that mandates the court to provide reasons for an award is contained in Section 5323 pertaining to an "award of custody." Relocation awards and Section 5337 are not referenced in Section 5323. Therefore, does the trial court have to provide its reasons for an award granting a parent the right to relocate with a child? This issue was addressed by the recent Pennsylvania Superior Court case of A.M.S. v. M.R.C., 2013 Pa. Super. 156 (June 28, 2013). In the A.M.S. case, M.R.C. (the father) appealed a trial court's order granting A.M.S. (the mother) permission to relocate with the parties' child from Berks County, Pa., to Palmyra, N.Y. According to the opinion: "Prior to the hearing, the parties' lawyers represented to the court that, once the court rendered its decision on relocation, the parties would be able to agree on a custody schedule." Following the hearing, where the court granted the mother's relocation request, the court asked the parties to submit proposed custody schedules. A number of weeks later, the court issued an order affirming "its grant of permission to relocate and outlining the custody schedule. The court awarded the mother primary custody and granted the father partial custody." The father filed an appeal and raised five issues.
Primarily, the father's issues on appeal pertained to at what point in time the trial court was required to delineate its reasons for a custody and relocation decision and whether the trial court erred as a matter of law and abused its discretion in failing to consider the relocation factors under Section 5337 and the custody factors under Section 5328 when entering its order permitting relocation and awarding child custody. The Superior Court's opinion primarily focused on the issue of "the point in time in which a trial court is required to delineate its reasons for a custody decision." After heavily analyzing the C.B. decision and substantially quoting excerpts from the C.B. opinion, the Superior Court in the A.M.S. case held: "Consistent with our holdings in C.B. and M.P., we conclude here that Sections 5323(d) and 5328 require the trial court to set forth its ratio decidendi at or near the time it issues a decision in a custody proceeding. We have held that, because the best interests of the child are the paramount concern of any custody case, the trial court must address the 16 best interest factors of Section 5328(a) and the 10 relocation factors of Section 5337(h)." The Superior Court further stated that: "Today we emphasize that our holding in C.B. … extends to cases that involve both custody and relocation pursuant to Section 5337." The Superior Court also held that its ruling in the A.M.S. case is to be given "prospective application." Therefore, all cases that involve both custody and relocation that are decided after the A.M.S. case are to have the reasons for the award delineated by the trial court at the time it makes it decision or soon thereafter. However, a gray area remains. What happens in a relocation case when the trial court denies a petition to relocate and does not modify the existing custody order? Must there be a delineation of the reasons for the relocation denial? Again, Section 5323 pertains to awards of custody and does not enumerate awards of "relocation denials."
The Superior Court was careful to highlight the importance of litigants knowing the reasons for custody awards. In order for litigants to make an informed decision regarding whether to appeal an order and/or understand what type of changes could be made by the litigant to better his or her chances in future attempts to modify custody or seek relocation, it is imperative that the litigant understands why the court made its ruling. When reading the A.M.S. opinion, it appears as though the Superior Court would prefer that the trial courts err on the side of being transparent and showing their hand when making custody orders. It would not be surprising to see a future Superior Court decision specifically stating that trial courts are mandated to delineate their reasons for denying relocation requests in situations where the custody order is not changed, in the event a trial court does not do so.
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 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 the council of the family law section of the Pennsylvania Bar Association.