The Attorneys at Gearty Law Offices obtained a favorable opinion today from the Pennsylvania Superior Court regarding a child custody appeal. A few months ago, a client came to Gearty Law after receiving an unfavorable child custody order at the trial level (the client had other legal counsel representing him at trial). Upon coming to Gearty Law, we were able to find several errors of law that were in the custody order and opinion. Gearty Law then filed an appeal on the client’s behalf to the Pennsylvania Superior Court.
Pennsylvania Child Custody Law requires the court to consider 16 different factors when making a custody determination. In opinion listed below, the Superior Court lists those factors as well as some recent caselaw that applies these factors.
If you or anyone you know received an unfavorable decision at trial (whether in family law, criminal law, personal injury law, or other area of law), please contact the Appellate Attorneys at Gearty Law Offices to see if you have a potential issue for appeal to a higher court. The Lancaster PA and Central PA Appeals/Appellate Attorneys at Gearty Law are here to assist with all of your appellate needs.
(Below are parts of the Superior Court’s opinion that explains the child custody factors and custody laws)
IN THE SUPERIOR COURT OF PENNSYLVANIA
In his brief on appeal, Father raises four issues, as follows.
1. Whether the [trial] court erred and abused its discretion by
awarding the mother primary physical custody of the children by
misapplying and/or ignoring the factors outlined in
[23 Pa.C.S.A.] § 5328[(a)]?
Initially, we observe that, as the custody trial in this matter was held
in August of 2012, the new Child Custody Act, 23 Pa.C.S.A. §§ 5321-5340
(the “Act”), is applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super.
2012) (holding that, if the custody evidentiary proceeding commences on or
after the effective date of the Act, i.e., January 24, 2011, the provisions of
the Act apply).
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328; E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.
In E.D., 33 A.3d at 79-80, the panel instructed that the “best interests
of the child” analysis requires the trial court to conduct a consideration of all
of the sixteen factors listed in section 5328(a) (emphasis added). In E.D.,
we addressed whether the trial court had failed to consider the factors set
forth in section 5328 regarding the custody award. After quoting the trial
court’s summary disposition of the issue, this Court instructed that, on
remand, the trial court should conduct a thorough analysis based on the
factors set forth in section 5328(a). Id. at 82.
Subsequently, in J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super.
2011), this Court addressed an appeal by a father from an order awarding
primary physical custody of the parties’ child. The panel determined that the
trial court erred as a matter of law in basing its decision almost exclusively
on the fact that the child was breastfeeding, and that the parties had
difficulty communicating with each other. Id. We concluded that the trial
court failed to assess all of the factors required to be considered under
section 5328(a). Thus, we vacated the award and remanded the matter,
stating that this Court could not make independent factual determinations.
Id., at 652 n.5.
Relying on the decision in J.R.M., Father argues that, in its order, the
trial court failed to consider all of the factors set forth in section 5328(a).
Thus, he seeks for this Court to either fashion a new order that significantly
increases Father’s periods of partial custody, or remand the matter to the
trial court with instructions for the court to engage in further fact-finding
with regard to each of the sixteen factors.