Tools of the TradeA Superior Court opinion was handed down on February 4, 2014 addressing the issue as to whether or not a trial court must address all 16 factors enumerated in 23 Pa. C.S.A. §5328 when the custody hearing is only considering a “discreet and narrow issue ancillary to a materially unchallenged custody arrangement.”

That this question exists is due, in large part, to some of the ambiguity that exists surrounding the custody statute which was amended in 2010. Within that amendment, it was established that there were 16 factors which should be utilized in deciding a custody case. When making their custody decisions, judges must articulate on the record how each of those factors weighed into their decision.

A question arose, however, whether a trial court needed to address each of those individual issues within each and every custody action. In the case of M. O. v. J. T. R., 1757 E.D.A. 2013, the parties were able to resolve by agreement all of the issues related to their custody dispute. The action began when father filed a petition for modification of their 2007 agreed parenting plan. The Chester County Court of Common Pleas judge in the case conducted pre-trial conferences at the parties’ request during which they ultimately narrowed their issues down to whether father would be required to take time off from work during the three weeks of his summer custodial vacation time.

The trial court heard testimony limited to just that issue and, on May 22, 2013, the court issued an order allowing father to continue working during his summer custodial time. Mother’s motion for reconsideration was denied by the court and she filed a timely appeal to the Superior Court.

Mother first raised the issue regarding the limited evidence presented in the case, but the Superior Court points out that she consented to a hearing on a single, limited issue left over from the overall agreement the parties reached.

Mother then argues that the trial court did not expressly consider each of the 16 factors set forth in 23 Pa. C.S.A. §5328(a) when it rendered its decision.  She cites the requirement under §5323(d) requiring the trial court to provide its rationale for its decision.

The trial court determined, and was upheld by the Superior Court, that because the hearing was limited to a single, narrow issue, it did not have to address each of the 16 factors.  Moreover, the trial court concluded that “most of the factors are not relevant to the issue of father’s summer employment schedule and that the parties did not present evidence concerning the majority of the factors.”

The main issue for the Superior Court was that under §5323 of the Custody Code, the court must provide the rationale for a specific section of custody awards, namely, 1) shared physical custody; 2) primary physical custody; 3) partial physical custody; 4) sole physical custody; 5) supervised physical custody; 6) shared legal custody, and; 7) sole legal custody.  The court interpreted §5328(a) as being a requirement when one of those seven custody awards affected and that “while the trial court’s ruling modified its prior order, it did not change the underlying award of custody.”

This case is important from the standpoint that it helps shape the extent to which the trial court must delineate its decisions by each custody factor.  It is certainly a guide to practitioners as to what type of custody hearing requires the full articulation of each of the 16 custody factors in a custody trial.

M.O. v. J. T. R., 2014 Pa. Super. 15

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989;, and on Twitter @AaronWeemsAtty.