M.O. v. J.T.R. addressed the issue of whether the court has to analyze the 16 statutory custody factors while deciding a subsidiary issue.
Michael E. Bertin, Family Lawyer
The issue before the court was whether Father was to be required to be off from work during his five-week vacation time with the children. The trial court held that he did not.
The Pennsylvania Superior Court agreed with the trial court, which held that “because the hearing was limited to a single, discrete and narrow issue, it was not required to address each of the 16 factors.” The trial court also held that most of the factors contained in Section 5328(a) were not relevant to the single issue before the court.
M.O. v. J.T.R.: Trial Court not Exempt From Determining Children’s Best Interest
The Superior Court held that: “The plain language of Section 5328(a) requires that the 16 enumerated factors be considered when the court is determining a child’s best interest for the purpose of making an award of custody.” The Superior Court indicated that a subsidiary issue is not an “award of custody” as defined under Section 5323(a). The Superior Court stated: “While the court must consider the child’s best interest when modifying a custody order, the modification provision [in the custody statute] does not refer to the 16 factors of Section 5328….The cases in which we [the Superior Court] have applied Section 5328(a) have involved an award of custody as defined by Section 5323(a) or have involved modification that also entailed a change to an award of custody.”
The trial court’s ruling in the M.O. case modified the prior order by lifting the requirement that Father had to be off from work during his five weeks of summer custody, but did not change the underlying award of custody. Therefore, based on the specific facts of the M.O. case, the Superior Court found that Section 5328(a) was not implicated directly. The Superior Court further provided a reminder that the trial court was not exempt from determining that the modification that it made was in the best interest of the children, and stated that the trial court’s decision was in the children’s best interest.
Therefore, the Superior Court found that the trial court was not required to analyze all 16 custody factors and was not required to delineate the reasoning for its decision on the record since the issue before the court was a subsidiary issue.
Michael E. Bertin practices family law in Pennsylvania with the law firm of Obermayer, Rebmann, Maxwell & Hippel.
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