12 March 2012

PA Child Custody Act changes remain largely untested

By Emily Shaffer, Juris Blogger
Generally if you ask a law student anything about family law, they will probably shrug and say something about the best interests standard. It’s true that family law is pretty straightforward and that the best interests standard is the primary rule, but those who are unfamiliar with family law may still want to update themselves on the year-old Pennsylvania child custody statute. January 22, 2012 was the one-year anniversary of Pennsylvania’s new child custody statute (Child Custody Act) being in effect. There were many changes and updates made between the old and new statutes, and though the Child Custody Act has been in effect for nearly a year, it is not retroactive so there are only a few sections of the Act that have been interpreted by the Pennsylvania courts.

Graphic courtesy of iowabar.org
One of the big changes between the old Pennsylvania custody statutes and the Child Custody Act is that the new law provides a rule for relocation in 23 Pa.C.S.A §5322 (2011), while questions of relocation used to be determined using case law. This statute defines relocation as “a change in a residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights.” Section 5337(h) lists factors for the court’s consideration in addition to the old relocation factors adopted from the notorious Gruber case. Originally, Gruber provided that a parent must show that relocating will “substantially improve the quality of life for the custodial parent and the children,” that the parent has good motives in relocating, and that there can be a reasonable visitation schedule worked out. Gruber v. Gruber, 583 A.2d 434 (Pa. Super. Ct. 1990). Now, according to the Child Custody Act, there are seven additional factors to the already enumerated Gruber factors the court must consider when a parent wants to relocate, including: the nature, quality and extent of involvement the child has had with the party proposing to relocate, the age of the child, the child’s preference, a pattern of conduct for either party to thwart the relationship of the child with the other party, any abuse committed by a party or member of a party’s household, and any other factor concerning the child’s best interests. 23 Pa.C.S.A. §5337(h)(1)-(10).

The Pennsylvania Superior Court addressed the new relocation portion of the Child Custody Act in E.D. v. M.P. In this case, the father wanted to relocate from Pennsylvania to live with his girlfriend in New York. The father had physical custody of the child, and the mother had partial custody and visitation rights. The trial court granted permission for the father to relocate with the child, and the mother appealed. The Pennsylvania Superior Court court discussed the new relocation portion of the Pennsylvania child custody statute, and how the Gruber factors have been altered. The court specified that all of the 10 factors in section 5337(h) should be considered before making a decision on relocation and remanded the case to the trial court. E.D. v. M.P., 33 A.3d 73 (Pa. Super. Ct. 2012).

Another change from old Pennsylvania law made in the Child Custody Act can be found in section 5325, concerning standing for partial physical custody and supervised physical custody. This section, similar to the old statute, says that grandparents and great-grandparents may file an action for partial physical custody or supervised physical custody in three situations. The situations are nearly identical to old Pennsylvania law, except that the old statute provided that custody could be sought when parents are divorced, while the new section was changed to the lower standard of “where the parents of the child have been separated for a period of at least six months.” 23 Pa.C.S.A. § 5325(2).

The most significant section of the new Child Custody Act lists 16 factors to be considered by the court in order to grant custody. The old child custody statute in Pennsylvania only specified a few factors for consideration by the court, including abuse of the child as a main concern. In J.R.M v. J.E.A., the Pennsylvania Superior Court indicates, “all of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order.” 33 A.3d 647, 649 (Pa. Super. Ct. 2011). The court also mentioned that section 5323(e) of the Child Custody Act allows for restrictions to be placed on an award of partial custody “if the court finds that there is an ongoing risk of harm to the child or an abused party,” but also mentions that without indication of abuse, an award of partial custody generally does not contain restrictions unless they are agreed upon by the parties. Id.; 23 Pa.C.S.A. § 5323(e).

Another noticeable change to Pennsylvania Custody Law is section 5329, which says that the court must consider whether a party or member of a party’s household has been convicted of or pleaded guilty or no contest to a listed offense, and determine that the party does not pose a threat of harm before granting custody. The statute lists over 30 offenses the court must consider, ranging from homicide to driving under the influence of alcohol. This is obviously a wide range, and the section does not offer any guidance on how the offenses should be weighed by the judge. There is little case law interpreting this section of the Child Custody Act; however, courts may find enlightenment in the application of the old Pennsylvania statute regarding criminal convictions (23 Pa.C.S.A. §5303(b)), which also enumerated convictions but considered a shorter list than the new statute.

In D.R.C. v. J.A.Z., the Pennsylvania Supreme Court interpreted the old criminal convictions statute (23 Pa.C.S.A. §5303) in regards to a father who was incarcerated and seeking visitation with his son. The court says that the welfare of the child is the primary consideration in these matters, and that in order to grant custody or visitation to a parent convicted of a serious crime, the court must determine that the parent no longer poses a threat of harm to the child.” D.R.C. v. J.A.Z, 31 A.3d 677 (Pa. 20110). The court said that the purpose of 23 Pa.C.S.A. 5303(b) was to “make certain that where a parent has been convicted of a serious crime the conduct underlying that crime will be evaluated as an additional factor along with many others” affecting the child’s well being. Id. at 685. In the concurring opinion by Justice Baer, he mentions that the old statute has been repealed, and 23 Pa.C.S.A §§ 5328-5329 are now in place. This shows that criminal convictions are just one of the many factors to be considered in awarding custody and the child’s safety is of the utmost importance in making a custody determination.

Though there are smaller changes inherent in the Child Custody Act from the old Pennsylvania child custody statutes, including the addition of a presumption in favor of a parent over any third party (section 5327(b)), the aforementioned changes are the major changes to Pennsylvania custody law that have been discussed since the Child Custody Act came into effect. Though at this time there are not many cases detailing any interpretation issues from old Pennsylvania child custody law, in the future when the Child Custody Act has been in effect longer and used more widely, interpretation of the statute will become clearer.

Emily Shaffer is a second year student at Duquesne University School of Law. She is a student ambassador for the law school and an intern for Judge McCormick in the Westmoreland Court of Common Pleas. Emily earned her undergraduate degree at the University of Pittsburgh with a major in Communications and a minor in Spanish. She will graduate from Duquesne University School of Law in 2013, and can be reached at shaffere@duq.edu.