The recent Pennsylvania Superior Court case of M.J.M. v. M.L.G., 2013 PA Super. 40 (March 1, 2013), may prove to be one of the more significant custody cases to be published since the enactment of the new custody act which became effective in January 2011.
The M.J.M. case primarily addresses two issues: the manner in which a trial court analyzes the sixteen factors in issuing a custody determination as set forth in the new custody act, and the application of the primary caretaker doctrine under the new custody act.
The relevant facts of the M.J.M. case are as follows: M.L.G. (the Mother) and M.J.M. (the Father) were never married and had one child. According to the opinion, the child was about to turn six years old when the matter came before the trial court. Mother lives in West Virginia with the child and six other children. Father lives in Westmoreland County where all of the parties’ extended family live. In 2008, an Order was entered granting the parties joint legal custody, Mother primary physical custody, and Father supervised visitation. By agreement of the parties, Mother subsequently relocated to West Virginia. At that time, the parties also agreed to remove the supervision condition on Father’s custodial time. According to the opinion: “The record is veritably littered with petitions for special relief alleging violations [of the parties’ Consent Order].” Further, the parties alleged abuse against each other. In 2010, Father filed a petition for primary physical custody and Mother attempted to transfer the case to West Virginia. After a hearing, the trial court denied Father’s request for primary custody but increased his custodial time and also denied Mother’s request to transfer the action to West Virginia. In 2012, Father filed another petition to modify custody seeking primary custody of the Child. On August 9, 2012, the trial court entered an Order “giving the parties shared legal custody of the Child and awarding Father primary physical custody.” Mother was awarded partial custody in the same fashion as Father’s prior partial physical custody schedule.
Mother appealed the trial court’s decision raising three issues. Mother’s first issue on appeal pertained to whether the trial court failed to make requisite findings of fact and credibility and the requisite conclusions of law in the Order as required by Pennsylvania law. Mother’s second issue pertained to whether the statutory factors under 23 Pa.C.S. §5328 supported a change in custody. The third issue raised on appeal pertained to whether trial court failed to apply the primary caretaker doctrine in the case. This article will address Mother’s first and third issues raised on appeal.
Mother’s third issue on appeal will be addressed first in this article due to the significance that the Superior Court’s decision regarding same will have on future custody cases.
There are a number of “doctrines” and “policies” that have been created over the years by numerous custody cases prior to the enactment of the new custody statute. In 1982, in the case of Commonwealth ex rel. Jordan v. Jordan, 448 A.2d 1113 (Pa. Super. 1982), the primary caretaker doctrine began to take form. In Jordan, the Superior Court held that in cases involving an award of primary custody: “Where two natural parents are both fit, and the child is of tender years, the trial court must give positive consideration to the parent who has been the primary caretaker.” Section 5328, part of the new custody act that went into effect in January 2011, directs trial courts to consider sixteen factors when entering an award of custody. Factor three provides as follows: “The parental duties performed by each party on behalf of the children.” At the time the statute became effective, it was unclear whether the primary caretaker doctrine was weakened as the parental duties performed by each party was now one of sixteen factors. As highlighted by the Superior Court in the M.J.M. case: “In setting forth these factors, the Legislature has required the trial court to give additional weight only to factors that it finds affect the safety of the child.” In one of the earlier cases decided after the enactment of the new custody statute, E.D. v. M.T., 33 A.3d 73 (Pa. Super.201), the trial court disposed of the mother’s counterclaim for primary custody by stating that “[i]nasmuch as [child] has continually resided with [father] for the last two (2) years we find that he has been the primary caregiver of [child] and that primary physical custody should remain with him.” The mother in the E.D. case argued that the trial court failed to consider all of the sixteen factors set forth in Section 5328(a). The Superior Court in the E.D. matter, in response to the trial court’s statement, remanded the case to the trial court and directed that the trial court conduct a thorough analysis based upon the sixteen factors set forth in Section 5328(a). One could argue that this was the first treatment by the Superior Court of the “primary caretaker doctrine” since the enactment of the new custody statute and could be interpreted as meaning that consideration of the primary caretaker is but one factor to be considered by the court instead of being given weighted consideration as was the case under the “primary caretaker doctrine” prior to the enactment of the new act.
The case of M.J.M. addresses the issue head-on. The Superior Court in M.J.M. states: “This language is clear, and we cannot expand it to provide that a trial court must also give weighted consideration to a party’s role as primary caretaker. We simply cannot graft the judicially-created primary caretaker doctrine on to the inquiry that the Legislature has established, and so we conclude that the primary caretaker doctrine, insofar as it requires positive emphasis on the primary caretaker’s status, is no longer viable.” The Superior Court further indicates that its conclusion does not mean the trial court cannot consider “a parent’s role as the primary caretaker when engaging in the statutorily-guided inquiry” and that when necessary the trial court may “explicitly consider” one’s role as the primary caretaker. However, a party’s role as the primary caretaker will no longer be given weighted consideration over the other factors enumerated under Section 5328. This holding is extremely important for future custody cases. Because of this holding, other doctrines and policies such as the separation of siblings policy will likely not be given additional weight as well. Factor six under Section 5328 provides: “The child’s sibling relationships.” Under the separation of siblings policy, unless compelling reasons dictating a contrary result are presented, siblings should not be separated. Based on the decision in M.J.M., it appears as though the child’s sibling relationships will be evenly analyzed with all other factors.
With regard to Mother’s first issue raised on appeal, Section 5328, under the new custody act, provides: “The court shall delineate the reasons for its decision on the record in open court or in a written opinion or order.” The appellate cases that have been reported since the enactment of the new statute have emphasized that the trial courts must analyze all of the factors enumerated under Section 5328(a) and state the reason for the court’s custody decision. The gray area regarding this issue has been whether the trial court must specifically analyze each factor listed in Section 5328(a) in great detail or whether the trial court can take a more broad approach by stating that it has analyzed all of the factors and generally addressed how it reached its decision by highlighting the application of the factors.
According to the opinion: “Mother argues that that [sic] the trial court’s articulation of its reasons must be detailed and extensive. She contends that the trial court is required to include references to the record, analysis of the conflicting evidence, findings as to the credibility of the witnesses on the particular issues and discussion of the witnesses’ respective biases.” According to the Superior Court in the M.J.M. case: “Contrary to Mother’s argument, there is no required amount of detail for the trial court’s explanation; all that is required is that the enumerated factors are considered and that the custody decision is based on those considerations.” In the present case, the trial court issued an Order of Court regarding custody and indicated that it would issue a separate Explanation of Decision thereafter. The Explanation of Decision was filed within seven days of the Order of Court. Because Father had to enroll the Child in school as soon as possible, it was important that the Order of Court be entered expeditiously. In the Explanation of Decision, the trial court indicated that it reviewed the factors set forth in Section 5328(a) and reviewed the individual factors thereunder. The Superior Court found no error on the part of the trial court regarding its analysis of the factors contained in the custody statute and that the in-depth analysis argued by Mother was not required.
Family law practitioners and the bench should pay close attention to the M.J.M. case, as it will affect the practitioners’ and trial courts’ approach in handling custody matters that traditionally fall under doctrines and polices that existed prior to the enactment of the new custody act.
Michael E. Bertin is a partner at the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel LLP. Mr. Bertin is co-author of the book Pennsylvania Child Custody Law, Practice, and Procedure. Mr. Bertin is the Chair of the Family Law Section of the Philadelphia Bar Association, Co-Chairman of its Custody Committee, and a past member of Council and the Executive Committee of the Family Law Section of the Pennsylvania Bar Association.