Wednesday, April 29, 2015

custody - trial court order not reasonable in light of its factual findings

WF v. MG – Superior Court – April 29, 2015





Father appeals from the order entered in the Court of Common Pleas of Philadelphia County granting M.G. primary custody of the parties’ two-year old daughter (“Child”), granting the parties shared legal custody, and granting Father partial custody (six days every two weeks). After our review, we vacate and remand.


Despite multiple findings that point to an award of primary custody to Father, the trial court awarded Mother primary physical custody and Father partial custody. After our review of the parties’ briefs, the record, and the lower court opinions, we conclude that the court’s determination that Mother be awarded primary physical custody is unreasonable in light of its own factual findings which are amply supported in the record. See S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2104) (this Court may reject trial court’s conclusions in child custody matter only if they involve error of law or are unreasonable in light of factual findings).


The trial court found that although “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, and his complaint for custody did not request primary custody, a change in primary custody would be disruptive for thechild, particularly because it would mean placement in child care rather than with a family member...”  What the trial failled to consider was the fact that “Father has not been primary custodian to date is, first, a function of Mother’s unilateral unreasonable decisions, and second, not a basis for denying him primary custody where all factors point otherwise. 


In addition, the court’s findings do not point to the conclusion that both Mother and Father are equally fit to act as primary custodian. The court expressed its concerns about Mother’s allegations of abuse by Father, as well as her “rigid” parenting style, which obscured a “wholesome, rational approached to child-rearing.”  The court contrasted Mother’s parenting style with Father’s, characterizing Father’s as “more natural.”


In determining Child’s best interests, the court’s consideration of the statutory factors weighed heavily in favor of granting Father primary custody. J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (when trial court orders form of custody, best interest of child is paramount). 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  conscience, sanction this unexplained about-face. Although the court’s findings are supported in the record, its conclusions are unreasonable in light

of these findings. See S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014). Because the majority of the statutory best interest factors favor Father, we conclude that the court’s order was not based on a reasoned consideration of those factors.



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welfare - Kinship Care Program - eligibility for reimbursement

J.V. and R.V. v. DPW – Cmwlth. Court – April 29, 2015 – unreported memorandum opinion



Grandparents who took formal but voluntary custody of grandchildren,without any involvement of CYS, were not entitled to benefits under the Kinship Care Program to reimburse them for the care of their grandchildren.


The Kinship Care Program is intended to encourage family members to become involved in those instances “when it is necessary to remove a child from the child’s home.”  62 P.S. §1301.  County CYS agencies are required to notify grandparents and other adult relatives “of a dependent child within 30 days of the child’s removal from the child’s home when temporary legal and physical custody has been transferred to the county agency.”  62 P.S. §1303(a) (emphasis added). This transfer of custody may occur through a judicial adjudication of dependency under the Juvenile Act, 42 Pa. C.S. §6351, or by a voluntary placement agreement between the parents and the county child welfare agency under 55 Pa. Code §3130.65.  The county agency must take custody if it determines that grounds for dependency exist. See Children, Youth and Families Bulletin 00-03-03, “Kinship Care Policy,” July 28, 2003.  Relatives who accept placement of children through the county children and youth services agency are eligible for the payments that are available to all foster parents.  62 P.S. §1303(c)(1)(i).


Grandparents’ efforts have been laudable. The purpose of the Kinship Care Program is to encourage what Grandparents did. However, until they satisfy the regulations that apply to foster parents, they are not eligible for kinship care payments.   For these reasons, we are constrained to affirm the order of the Bureau.




The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.


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UC - willful misconduct - employer rule on off-duty misconduct - mistaken advice of union not "good cause"

Rothstein v. UCBR   - Cmwlth. Court – February 11, 2015 – ordered to be reported 4-29-2015





Held: Claimant committed willful misconduct by violating an employer rule requiring him to report certain off-duty misconduct, to wit, criminal arrests or convictions.  In this case, claimant, whose job required him to enter customers’ homes, had been arrested for, charged with and convicted of indecent exposure.


Misconduct was proven even though there was no evidence about the underlying acts, since “the very nature of the charges” could affect claimant’s ability to do his job. 


The fact that claimant’s union advised him not to report his arrest did not establish “good cause” for not complying with the employer rule.   The union had no responsibility under the employer rule.  Cf. Link v. UCBR, 446 A.2d 999 (Pa. Cmwlth. 1982).   The rule put the responsibility to report on the individual employee.  “Violating the policy by following the poor advice from the union does not relieve an employee of the consequences of his violation, nor provide just cause for the violation.”




This  summary is also posted at the PLAN Legal Update, which is searchable  and can be accessed without a password.


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