A Superior Court decision reported last month lends new insight to questions of what kind of record lawyers and judges must make in a child custody case. The requirement of a thorough record has been a mainstay of appellate law for many years but the landscape shifted somewhat when the General Assembly passed its latest custody statute, effective in 2011.
In S.W.D. v. S.A.R., the Armstrong County court had issued a custody order following a hearing in January, 2010. Mother was awarded primary physical custody and Father had partial custody two nights per week and every other weekend from Friday evening to Sunday evening. Legal custody was shared. The parties appear to have informally adopted a 5-2-2-5 schedule without court involvement in September, 2012.
During the Spring, 2013 Father filed a Petition for Special Relief to (a) resolve a dispute over where the child would begin kindergarten and (b) obtain judicial approval of the revised custody schedule. The parents disagreed about the appropriate school enrollment. After hearing testimony the Court decided that Mother’s public school selection was more appropriate than Father’s private school choice.
Turning to the question of changing the old custody schedule, the Court noted that the parties are free to modify the order as they see fit. But the trial court saw “no evidence to suggest that the current 5-2-2-5 schedule” was an improvement over the prior court order. Accordingly, the request was denied unless the parties agreed.
Father appealed the Order. The core question from the appellate court’s view was when is a complete analysis of the sixteen plus factors dictated by the Custody Act required. In assessing that matter the Court turned to the statute’s language where it says the factors must be considered when “ordering any form of custody” 23 Pa. C.S. Sec 5328(a).
In this case, the Court held that where the questions before the Court do not “change the form” of the custody schedule, a petition for special relief is appropriate and courts need not perform the complete statutory analysis. Thus, in this case, the school enrollment question was not one where complete analysis was necessary. But, the Court noted that where the geographic location of a school necessitates a change in the “form of custody” (i.e., modification of the schedule), then the statutory analysis is required. Here, the competing schools were within manageable driving distance for both parents. Thus, issues like school enrollment, extracurricular, foreign travel and other legal custody decisions may not require comprehensive hearings.
The next piece of the case is more telling. The Superior Court reversed the denial of the Father’s request to change to the 5-2-2-5 schedule because this was a change in the form of custody and required a complete analysis of the seventeen factors. Note that the Court imposed schedule had awarded father two weeknights and alternate weekends. Assuming that Father had two weeks of vacation and a split of roughly 10 holidays, he was in the range of 171 overnights per year. Obviously 5-2-2-5 is shared physical custody. The difference in time between the schedules was a matter of 3.1%.
The decisive utterance: “We hold that a trial court must apply the Section 5328(a) factors and issue a written explanation of its decision when it orders any of the seven forms of custody provided for by the Act.” Those forms include any kind of legal or physical custody arrangement. The case was remanded for that analysis to be provided. The decision related to the school enrollment was affirmed.
The implications of this decision are quite broad. Litigants commonly work with a custody schedule either by agreement or judicially imposed and then decide they want a court to modify it. In this case, the modification appears to involve a relatively insignificant amount of time. But the appellate court is still insisting on a full record and a full opinion for what some would call a “tweak” in the schedule.
Many counties have adopted practices where Court appointed hearing officers customarily hear these kinds of proposed changes without a record proceeding and make “recommendations” to the trial court. This decision would also appear to deal a blow to those procedures where temporary modifications are made without hearings. Citing two other recent Superior Court cases, this panel holds that: “Mere recitation of statute and consideration of the Section 5328 factors en masse is insufficient. C.B. v. J.B. 65 A.3d 946,950 (Pa. Super, 2013). A trial court’s failure to place its reasoning regarding the Section 5328(a) factors on the record or in a written opinion is an error of law. J.R.M. v. J.E.A. 33 A.3d 647,650 (Pa. Super. 2011).” Moreover, the factors must be not only listed but applied to the facts. M.P. v. M.P., 54 A.3d 950, 955-56 (Pa. Super. 2012).
So here we have a case where the Court imposed nearly equal custody after a full hearing in 2010. The parties “experimented” with an equal custody plan and one of the parties sought to have the Court adopt it. The trial court found there was no real advantage and rejected it while acknowledging that it could be agreed to. The Superior Court responded by stating that the trial court erred in rejecting the equal custody arrangement; insisting that whether it affirmed the former arrangement or adopted the new “equal” plan, there needed to be a complete written analysis applying the facts to the statute. No tinkering here, thank you. As the Sinatra standard begins, it’s “All or Nothing at All.”
S.W.D. v. S.A.R. 2014 Pa. Super. 146
 Note that the precise terms of the 2010 schedule are not part of the case report.