The Pennsylvania Legislature has adopted an enumerated list of sixteen factors to decide issues of custody in the Commonwealth of Pennsylvania. 23 Pa.C.S.A. 5328. The sixteen factors are:
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.”
Recently, in the case of M.O. v. J.T.R. (decided February 4, 2014 to number 1757 EDA 2013) the Superior Court addressed the question of whether all sixteen factors must be addressed in every modification petition.
The case involved a divorced Mother and Father and the custody of two minor sons, one 13 and one 11. Mother resided in Chester County, Pennsylvania and Father resided in Maryland with his paramour, his adult daughter, a full sibling of the two minor children, and his paramour’s daughter.
The custody arrangement between the parties was governed by an existing consent order entered in Tennessee under which the Mother was a primary custodian and the Father had partial custody including six weeks during the summer. The original order was modified by consent several times.
In January of 2013, the Mother filed a petition seeking more time with the minor child and a change in transportation responsibilities as well as a clarification of the existing order. After conciliation, the order was changed, including reducing Father’s summer visitation to five weeks and requiring that he be off work during that period of time. The Father appealed from the conciliation to a court hearing. Prior to hearing, a pre-hearing conference was held by the trial judge who states that all issues were resolved except for a single narrow issue, whether Father would be required to be off work during three weeks of his summer custodial vacation. The Court allowed limited testimony to this one single issue and decided that the Father did not have to be off work during three of his five custodial vacation weeks.
The Mother appealed and on appeal stated that the Court erred by using its discretion and failing to consider the sixteen relevant factors set forth in 23 Pa.C.S.A. 5328(a)(1-16). Section 5328(a) states:
“In ordering any form of custody, the Court shall determine the best interests of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following: (sixteen enumerated factors).”
Section 5328(b) indicates that:
“The Court shall delineate the reasons for its decision on the record in open court or in a written opinion or order.”
Section 5338, dealing with modification of an order, states:
“Upon petition, a court may modify a custody order to serve the best interest of the child.”
In M.O. v. J.T.R., the Court, through Justice Wecht, stated:
“The plaint language of Section 5328(a) requires that the sixteen enumerated factors be considered when the court is determining a child’s best interests for the purpose of making an award of custody. 23 Pa.C.S.A 5323(a). By contrast, while the court must consider the child’s best interests when modifying a court order, the modification provision does not refer to the sixteen factors of Section 5328. 23 Pa.C.S.A. 5338(a). . .”
The Superior Court found that since the trial court did not determine initial custody, but merely modified a custody related dispute (whether the Father had to be off work or not), it was not mandated to specifically address each of the sixteen factors enumerated in law in determining the best interests of the child. The trial court did need to determine the best interests of the child but the trial court did not need to consider each of the sixteen factors in doing so.
Section 5223(d) does require that the Court delineate its rationale either on the record in open court or in a written opinion in making a modification.