Wednesday, December 07, 2011

custody - statutory factors; reasons for partial custody order

J.R.M. v. J.E.A. - Superior Court - December 6, 2011



http://www.pacourts.us/OpPosting/Superior/out/a30019_11.pdf



The court remanded the trial court's order giving mother primary custody of 8-month old child and placing limitations on father's partial custody rights, because:



- the lower court failed to consider the factors listed in "23 Pa.C.S.A. § 5328(a), a newly enacted section of the child custody statute, which delineates factors the trial court must consider when awarding any form of custody. . . All of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order. Id. As the trial court failed to properly consider the statutorily mandated factors in arriving at its custody determination, it erred as a matter of law. We are therefore compelled to vacate its order and remand the case for further findings of facts." (emphasis in original)



- it was improper to place restrictions on father's partial custody absent evidence that he was unfit or unable to care for the child. "An award of partial custody generally does not contain any restrictions. Fatemi v. Fatemi, 489 A.2d 798, 801 (Pa. Super. 1985). “A restriction will be imposed if the parties have agreed to a restriction or if the party requesting a restriction shows that without it, partial custody will have a detrimental impact on the child.” Id.; see also 23 Pa.C.S.A. § 5323(e) (“[I]f the court finds that there is an ongoing risk of harm to the child or an abused party and awards any form of custody to a party who committed the abuse or who has a household member who committed the abuse, the court shall include in the custody order safety conditions designed to protect the child or the abused party.”).. . . The trial court imposed restrictions on Father’s periods of partial custody without support in the record that the parties agreed to the restrictions or that the restrictions were necessary to protect Child from some detrimental impact or safety concern. Fatemi, 489 A.2d at 801; 23 Pa.C.S.A. § 5323(e). The imposition of such restrictions are therefore unreasonable in light of the evidence of record. Durning, 19 A.3d at 1128.

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