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Child Custody Factors Need Not Always Be Analyzed

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The sixteen (16) child custody factors of 23 Pa.C.S. Section 5328 only need to be analyzed by a court when they effect the "form of custody."

By Attorney Jeffrey B. Engle, Child Custody Lawyer, Harrisburg, PA

Recently, in the case of S.W.D. v. S.A.R., 2014 Pa.Super. 146 (July 11, 2014), the Superior Court held that not every issue facing parents in a custody matter, need be addressed under the sixteen (16) custody factors.  (See link to prior article outlining Statute).  In S.W.D., the father filed a complaint for custody seeking, among other things, that he child be enrolled in his school of choice.  The trial court, after hearing from both parents, determined that the child should attend school in mother's school of choice.  The Superior Court did not reverse the trial court on this distinct issue because it did not change a "form of custody."

According to the child custody act, 23 Pa.C.S.A. Section 5328(a), the court must discuss and review the sixteen factors when "ordering any form of custody."  The Court reviewed the common meaning of the term "form."  It determined that "form of custody" means the seven (7) types of custody listed under the Act in Section 5323, which are as follows:

  1. shared physical custody,
  2. primary physical custody,
  3. partial physical custody,
  4. sole physical custody,
  5. supervised physical custody,
  6. shared legal custody,
  7. sole legal custody.

Here, the Court reasoned that the determination of which school the child would be enrolled in was a "discrete and narrow issue ancillary to a materially unchallenged custody arrangement."  Many issues are of a similar nature including, whether a father needs to take time off from work when he had custody of the children over summer vacation; a dispute over a custody-exchange location; on which youth sports team the child should play; or whether the parent should be required to have the child's toys, beds, or other things in his/her home.  The Court recognizes that such issues may play a factor into a court's overall award of custody when reviewing the sixteen (16) factors, however, as a discreet issue, these do not require any in depth analysis by a court.

If you have questions or concerns about your current custody matter, you may contact me at Shaffer & Engle Law Offices, LLC via email or phone.

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