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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 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

the child.

(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

from harm.

(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.


Our Lancaster/York PA Child Custody Attorney, Justin C. Gearty Jr., Esquire, recently handled a case where his client was permitted to leave the state with the minor child. Attorney Gearty represent the mother in this case.

In this case, the mother had lived in the York PA area with the father of the child. She had no other family or friends in the area and was originally from up-state New York. The relationship between her and the father eventually fell apart leaving her nowhere to go in the York area. She ended up leaving the home and moving back to New York, which was about a seven hour drive from York PA. Shortly after she left, the father filed a child custody action in the York County Court of Common Pleas. An initial custody conciliation conference was scheduled and the mother showed up without an attorney. Following this conference, the court entered an order giving the parties shared physical and legal custody of the child. This order resulted in the child being with the father for two weeks and then with the mother for two weeks (the child was not of school age yet). The mother then retained our Child Custody Lawyer, Justin C. Gearty Jr., Esquire. Attorney Gearty appeared on her behalf at the pre-trial conference. Following the pre-trial conference we prepared a Gruber Memo, which is a case that deals with custody relocation issues. Attorney Gearty then began preparing the case for trial and represented the mother at trial. After the court heard all of the evidence, the court awarded the mother majority physical custody and the court approved her relocation. Under this Order, the mother would have the child for the school year with short periods of visitation with the father and the father had summer break minus the mother’s periods of vacation time.

Relocation in child custody cases can become complicated. The PA Child Custody Act has strict requirements that must be followed. The first requirement is that the parent that plans to relocate must send notice to the non-relocating parent. The Child Custody Act outlines the items that must be included in this notice, which includes but is not limited to: the address of the new residence, the new school district, the new phone number, the reason for the move, and a notice to the non-relocating parent that if the non-relocating parent doesn’t respond, the court will approve the relocation. This notice must be sent via certified mail and must be sent at least 60 days prior to the proposed move. Along with the notice, a counter-affidavit must be provided to the non-relocating parent. If the other parent does not agree to the proposed relocation, he/she must then filed the counter-affidavit with the court. Once the counter-affidavit is filed with the court, an expedited hearing will be scheduled where the court will determine whether or not to approve the relocation.

The PA Child Custody Act outlines multiple factors that the court must consider when deciding whether or not to approve the proposed relocation. As with most child custody matters, the controlling issue is: what is in the best interest of the child. With that being the controlling interest, the court will consider how the proposed location will enhance the child’s life. In addition to looking at how the relocation will benefit the child, the court will also look at the non-relocating parent’s relationship with the child and the court need to consider whether alternative visitation arrangements can be made if the relocation was approved.

If you are considering a relocation, contact us today for a free consultation.