We have a new custody statute in Pennsylvania

Enacted last year, our new custody statute specifically lists the relevant factors that a court must consider when ordering any form of custody.  The statute uses the word "shall" which means that the trial court does not have a choice and must consider each one of these factors when making a decision.  Here is the new statute, in its entirety:

Section 5328(a) provides:
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 party. 

(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(a).

So -- the question for those of us involved in custody litigation is:  How do the courts apply this statute?  We find the answer by looking at cases that have been appealed and reviewing the opinions of the judiciary.

In December, the Superior Court of Pennsylvania reversed and remanded a case back to the trial court when the trial court judge failed to follow the statute.  In the case of  J.R.M. versus J.E.A., 2011 PA Super 263, a Father appealed a very restrictive custody order entered by the trial court.

The background facts are worth mentioning only because the litigation and strife is lasting far longer than the whirlwind romance that produced the child who is the subject of this proceeding.  Additionally, I have handled countless cases like this one regarding infants so the situation is quite common.

Mother and Father dated only a month before becoming engaged -- and Mother became pregnant two months later.  However, love was soon lost and they broke up -- so bitterly that Mother did not even tell Father when she gave birth.  When Father found out about his child, he contacted Mother, who set up all sorts of elaborate restrictions on his time with the child, including that it was essentially supervised and he could not take the child back to his home.  Mothers of infants are understandably fiercely protective of their babies -- and in this case she barely knew the Father.  Imagine her concern in letting her baby go with a stranger.  However, this stranger is the child's Father and as such has as much right as Mother to time with the child.

After litigation, the trial court basically sided with Mother but limited its analysis to the fact that she was breastfeeding which would limit the time the child could be away from her.  Father appealed the very limited custody order and the Superior Court essentially agreed with him -- sending the case back to the trial court to consider ALL of the factors in the statute.

The lesson to be learned:


In custody matters, be ready to present your case to the court with a knowledge of the factors in the statute, bolstering your position with specific examples.