We are slowly observing some flesh of judicial precedent applied to the bones of the custody stature enacted by the General Assembly and made effective in January, 2011. A recent and significant contribution to that came in a Superior Court decision which was ascribed precedential value on July 11.
S.W.D. v. S.A.R. is an appeal from a custody decision made in Armstrong County. The dispute involved a child identified by initials in the opinion as B.A.D. and is reported at 2014 Pa. Super. 146. The primary dispute revolved around where a five year old would attend kindergarten. The parents disagreed and when that disagreement ended in selection of public versus church oriented kindergarten, the Father appealed.
The seminal question decided in this case was whether a school decision required the trial court to evaluate the sixteen specified custody factors legislated by 23 Pa.C.S. 5328(a). The Superior Court’s panel, consisting of Judges Stabile, Bowes and Wecht provide bench and bar with a cogent analysis of when the factors must be drawn from the statute book and applied to the facts in order for a trial court decision to be fully reviewed.
The Court latches on to the statute itself and its internal statement that the factors must be applied to any form of custody. This is distinguished from custody decisions which may change terms but not form. The Court decided that a decision related to where a child is schooled is not one that warrants analysis of all of the statutory factors, although it did note that a school change that required a change in the form of the custody (e.g., a school so distant that one parent could not fulfill the custody arrangement and get the child to school) might require the complete analysis.
The Court also cited its own decision in M.O. v. J.T.R. wherein the question was whether a parent awarded a custodial period had the duty to take time off from work when awarded custody during school vacation times. 85. A.3d 1058 (Pa. Super, 2014). In that opinion the Court stated that if the decision does not affect the physical allocation of time between the parents, the Section 5328 factors do not come into play. Id., at p. 1063, n. 4.
The panel also cited three other cases involving school selection as cases which did not involve changing the form of the custodial arrangement. See, Staub, 960 A.2d 848 (Pa.S. 2008); Fox v. Garzilla, 875 A.2d 1104(Pa.S. 2005); Dolan, 548 A.2d 632 (Pa. S. 1988)
The Court notes that the 16 factors may become relevant in any custody decision and that both the factors and the general mission of any Court are to promote the child’s interest. All that the decision really concludes is that not every trial court opinion need come wrapped in a 16 point analysis.
Meanwhile, the ultimate decision is to reverse and remand. Why? In 2010 the trial court had imposed its version of a physical custody arrangement. But somewhere along the way the parties had decided to alter it to something else. The petitions that brought them to court requested reinstatement of the 2010 order and, alternatively, judicial endorsement of the existing arrangement (i.e., “something else”). The Superior Court held that a request for something else besides the docketed order was, per force, a request to modify and required an analysis that did incorporate the statutory factors. So the cases was remanded for a full hearing on the question of whether a five year old is better served by spending 42.86% of time with Father or 50%.
 The newest factor effective 1/1/14 is involvement with child abuse and related protective services. Sec 5328(a)(2.1)