Child Custody Order Inconsistent With Factors Analysis Reversed

Obermayer Rebmann Maxwell & Hippel LLP

The recent case of W.C.F. v. M.G., 115 A.3d 323 (Pa. Super. 2015), addresses numerous issues often faced by family law practitioners. The relevant factors of the case are as follows: W.C.F. (the father) and M.G. (the mother) were previously married and had one child. The parents of the mother (who is a native of Malaysia) resided with the parties in the parties' apartment since prior to the parties' child being born. Once the child was born, according to the opinion, the maternal grandmother had been the primary caretaker of the child. As reflected in the opinion: "As a result of father's belief that mother's family, in particular maternal grandmother, was blocking his attempts to bond with child, the parties agreed that maternal grandparents would move out of the parties' apartment and obtain their own residence." When the maternal grandparents moved out of the apartment, the mother took the child and vacated with her parents.

The date after the mother took the child from the apartment to live with her parents, the father filed a complaint for shared legal and physical custody of the child. The mother also filed a pleading with the court seeking for a divorce and confirmation of legal and primary physical custody of the child.

According to the opinion, soon thereafter, the trial court entered an interim order preserving the "status quo." As reflected in the opinion, the "status quo" was created by the mother when she took the child out of the marital residence and moved in with her parents. The creation of a status quo by self-help occurs often in child custody cases. This self-imposed status quo can have a major impact in custody cases, especially considering the backlogs that occur in many courts, which causes a long delay between the date that a custody complaint is filed and the resulting trial.

The court analyzed the 16 factors under the Custody Act as required. In the court's analysis, the factors weighed in favor of the father having primary custody of the child. Contained in the analysis and woven throughout the opinion is the fact that the mother repeatedly alleged the child was injured and abused while in the father's custody. However, the custody evaluator hired by the parties as well as the doctors and other professionals involved in the case found that the evidence did not support the mother's allegations. Additionally, repeatedly reflected in the opinion was the fact that the maternal grandmother may be interfering with the father's ability to bond and parent with the child. Despite all points leaning toward the father having primary custody pursuant to the trial court's analysis, the trial court awarded the mother primary physical custody of the child. In entering its order, the trial court did expand the father's custodial periods. However, as noted by the Superior Court, because the interim order only provided the father with 13 hours of custody per week, "the fact that father's time with child has increased relative to that interim order is not a useful gage, as it is not necessarily fair or reasonable in these circumstances."

In the trial court's summary opinion, it explained its decision to award the mother primary physical custody despite its findings as follows: "When considering the mandatory factors, the findings of fact favor father more than mother. However, since father has not been the primary custodian to date ... a change in primary custody would be disruptive for the child, particularly because it would mean placement in child care rather than with a family member during the week."

The trial court's explanation raises the issue of the primary caretaker doctrine and also whether a parent should always trump a third party in caring for the child. Historically, when applying the primary caretaker doctrine, where both parents are otherwise fit, one parent's role as a child's primary caretaker may be given weight as a determining factor in child custody decisions. In 2013, the case of M.J.M. v. M.L.G., 63 A.3d 331 (Pa. Super. 2013), held that "the primary caretaker doctrine, insofar as it requires positive emphasis on the primary caretaker status, is no longer viable." The genesis of the primary caretaker doctrine is the case of Commonwealth ex rel. Jordan v. Jordan, 488 A.2d 1113 (Pa. Super. 1982). With the enactment of the new custody statute in 2011, the court is to analyze 16 enumerated factors when making a custody decision. According to the M.J.M. case, the role of the parent historically as the primary caretaker is but one of 16 factors to consider. Highlighted in the M.J.M. case is the fact that the Custody Act puts weighted consideration on the factors that affect the safety of the child. In the W.C.F. matter, all the factors weighed heavily in favor of the father. Further, according to the opinion, it was the maternal grandmother who primarily cared for the child, and not the mother, since the child was born. Additionally, as emphasized by the Superior Court, the fact that the child was in the mother's care primarily was due to the status quo that the mother originally created by taking the child from the father. The Superior Court also highlighted the fact that the trial court did not deem both parents to be equally fit to act as a primary custodian. According to the opinion, due to the lack of cooperation of the mother, awarding primary physical custody to the father "might be of significant benefit to child at this time, and might make mother realize that her lack of cooperation and attempts at alienation will not be rewarded by this court."

In reaching its conclusion to reverse the trial court, the Superior Court held: "Where a court makes findings consistently in favor of custody in one party, and then awards custody to the other party, it must provide valid reasoning to support that decision. Especially with respect to mother's allegations of abuse, which the court specifically found not credible, we cannot, in good conscious, sanction this unexplained about-face. Although the court's findings are supported in the record, its conclusions are unreasonable in light of these findings." Therefore, the Superior Court found that the trial court's award was unreasonable in light of its factual findings and vacated the order and remanded the matter for "an order consistent with the trial court's findings and this court's decision."

Another interesting issue raised in this case is the fact that the child would be spending time in child care during the father's custodial periods as opposed to family members while in the mother's custody. This is an issue that often arises in child custody cases. In this case, the Superior Court found that it would benefit the child's social development to be in child care for periods of time. It is often thought that it is more beneficial for the child to always spend time with a parent instead of a third party. However, as they say, there are two sides to every argument. This case provides a reminder that in some instances it may be beneficial for a child to spend some periods of time in child care as opposed to with a parent or family members.

Originally published in The Legal Intelligencer - September 8, 2015.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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