In the years following the enactment of the new Child Custody Act in Pennsylvania, attorneys and the bench set sail on uncharted waters. Family law attorneys waited anxiously to read appellate court decisions published following the enactment of the act for guidance as to its interpretation and application. It has been an interesting journey since January 2011, when the act became effective, and the interpretation of the act has continued to evolve.
An issue that has remained a hot topic among the bar and the bench has been the analysis, application and delineation of the 16 custody factors under 23 Pa. C.S.A. Section 5328(a). The appellate decisions published in the wake of the passage of the act directed trial courts to address all 16 factors and delineate their reasoning for their decisions and application of the factors at the time that the decision is made or shortly thereafter in the order. Refinements to such a requirement have occurred in subsequent cases. The recent case of M.O. v. J.T.R., 2014 Pa. Super. 15 (Feb. 4, 2014), addressed a new wrinkle. What are litigants and their attorneys to present to the court when a “subsidiary” issue is brought before the court that does not affect the determination of which party will have primary custody and does affect the amount of time that each party has with the child? Similarly, what is the court to do with regard to analyzing the 16 custody factors and delineating same on the record or in the order after making a decision regarding the subsidiary issue? These issues were addressed head-on in the M.O. case.
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