Gone are the days of attorneys needing to guess what factors a Judge considered when issuing a custody order….or are they?? According to the custody statute, which became effective in January of 2011, trial courts must consider sixteen different factors in custody and provide their reasoning to the parties and their attorneys. Apparently though, judges are still not providing their reasoning in custody orders. Specifically, the sixteen factors the trial court MUST consider for the best interest of the children are:
- Which party is more likely to encourage and permit frequent and continuing contact between the child and another party;
- 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;
- the parental duties performed by each party on behalf of the child;
- the need for stability and continuity in the child’s education, family life and community life;
- the availability of extended family;
- the child’s sibling relationships;
- the well-reasoned preference of the child, based on the child’s maturity and judgment;
- 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;
- which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs;
- which party is more likely to attend to the daily physical, emotional, developmental, education and special needs of the child;
- the proximity of the residences of the parties;
- each party’s availability to care for the child or ability to make appropriate child-care arrangements;
- 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;
- the history of drug or alcohol abuse of a party or member of a party’s household;
- the mental and physical condition of a party or member of a party’s household; and
- any other relevant factor.
23 Pa.C.S. Section 5328
Section 5323 of the same statute states that the trial court “shall delineate the reasons for its decision on the record in open court or in a written opinion or order.” Unfortunately, this is not happening as often as it should be. Also, up until some recent Superior Court decisions, there was no time frame for the trial court to be giving their reasoning for their decision in a custody case. Without a time frame laid out, the trial court may not ever give it’s reasoning under the above listed factors until an appeal is filed. This made it hard for attorneys to know which issues to raise upon appeal when they have no understanding of why the Judge ruled the way he/she did.
In C.B. v. J.M. and M.B. and T.B., decided on April 22, 2013, the court held that the trial court must “set forth its mandatory assessment of the sixteen factors prior to the deadline by which a litigant must file a notice of appeal.” This can still leave someone in a hard position if the trial court does not give its reasoning until the 29th day of the 30 day appeal period. The court reasoned that if an attorney does not know the reasons for a custody decision, they cannot intelligently advise their clients on whether or not to pursue an appeal. Further, if there is never an appeal, a party that may wish to modify the custody order in the future, will not know which factors were important to the Judge and what he or she may need to work on and prove to the Judge at a future hearing.
In another case, A.M.S. v. M.R.C., decided June 28, 2013, the court relied heavily on its decision in C.B. v. J.M. and simply extended its decision of requiring the court to explain its reasoning for a custody decision to any relocation cases, which has a different set of factors as laid out in this previous post.
C.B. v J.M. and M.B. and T.B., 2013 PA Super 92
A.M.S. v. M.R.C., 2013 PA Super 156