16-Factor Custody Analysis Not Always Required, Says Superior Court of PA

Presumably, opinions of the Superior Court are published when, in the estimation of the Court, they articulate important principles of jurisprudence. So, the Superior Court was sending a message to family law practitioners when it chose to publish M.O. v. J.T.R., 2014 Pa.Super. 15 (February 4, 2014). M.O. is a custody case in which Mother and Father were divorced parents of one emancipated daughter and two minor sons.  When they were divorced six years ago, Mother and Father entered into an Agreed Parenting Plan Order in Tennessee, giving primary physical custody to Mother and partial custody to Father, including six weeks in the summers. The order was registered in Pennsylvania when Mother moved to Chester County, and some minor modifications were made by consent.

In January 2013, Father filed a petition for modification seeking additional time with the boys, shared transportation responsibilities, and clarification of the prior orders. After a conciliation, the Court issued an order reducing Father’s summer custody period to five weeks and imposing the condition that he remain off work during the children’s vacations. Father requested a hearing, and on the eve of trial, the parties participated in a pretrial conference that settled all but one issue: whether Father was required to stay home from work during summer vacations.

A hearing was conducted on that narrow issue; and the trial court held that Father was not required to stay home from work. Mother filed a motion for reconsideration, which was denied; and then she filed a notice of appeal, raising three issues.

The first issue was whether the trial court abused its discretion by failing to consider the sixteen (16) statutory custody factors under 23 Pa.C.S. § 5328.  The Superior Court addressed this contention together with her second issue: whether the trial court should have delineated the reasons for its decision on the record in open court or in a written opinion, as provided by 23 Pa.C.S. § 5323.  The Court noted that modification of a custody order is governed by 23 Pa.C.S. § 5338(a), which does not refer to the sixteen custody factors of § 5328. All of the published decisions in which the Court has required our trial courts to consider all sixteen (16) factors have involved a change in primary custody. This case was different, because no change of custody was requested or granted.

The Superior Court held that “best interests of the child” was the guiding legal principle when judging a custody modification that did not involve a change in physical or legal custody. Because the trial court in this case applied that principle, and explained the factors that it considered on the record during the hearing, the Superior Court held that no abuse of discretion occurred. The Court held that it was not necessary to issue an opinion reviewing all sixteen (16) custody factors in a case like this, where a narrow issue was presented.

As discussed above, the trial court here did not make an award of custody. It merely modified a single discrete and narrow ancillary issue. To be sure, it is beneficial for the litigants to hear and understand the court’s rationale for its decision. However, in circumstances such as those presented here, this is not required by our statutes.

The Court also dismissed Mother’s third issue. While Mother complained that the trial court did not conduct a de novo hearing, the Court noted that Mother had consented to a more limited hearing and waived her right to demand a full “soup-to-nuts” custody hearing.