Modification of Custody Order • Section 5328 Factors
M.O. v. J.T.R., PICS Case No. 14-0246 (Pa. Super. Feb. 4, 2014) Wecht, J. (11 pages)
Trial court is not required to address all 16 factors enumerated in 23 Pa.C.S. §5328 (relating to award of custody) when it decides a discrete and narrow issue ancillary to a materially unchallenged custody arrangement. Affirmed.
Pursuant to custody agreement, father was entitled to spend five weeks a year with children. Father moved to modify the order to clarify that he was not obligated to take time off from work during three of his five custodial vacation weeks. Mother argued that father should be required to be off from work in order to supervise and spend time with children.
The court modified the order so that father was not obligated to take off from work during custodial visits. Because the hearing was limited to this single discrete and narrow issue, the trial court concluded that it was not required to address each of the 16 factors pursuant to 23 Pa.C.S §5328(a) (relating to award of custody) where most of the factors were not relevant to the issue of father’s summer employment schedule and the parties did not present evidence concerning the majority of the factors.
On appeal, the mother argued that the trial court erred in refusing to consider expressly each of the 16 factors under §5328(a). The Superior Court affirmed.
Section 5328(a) sets forth factors the court must consider in determining a child’s best interest for purposes of making an award of custody. By contrast, while the court must consider the child’s best interest when modifying a custody order, the modification provision does not refer to the 16 factors of §5328. Following the hearing in this case, the court made no award of custody. The court was not deciding physical or legal custody, nor even changing the amount of custodial time that either party had with children. Rather, the court addressed a subsidiary issue: whether father was required to be off from work while children stayed with him for a portion of the summer. After hearing evidence that parties presented limited to that sole issue, the court decided that father could work during the three weeks in question. While the court ruling modified its prior order, it did not change the underlying award of custody. Therefore, §5328(a) was not implicated directly.