M.E.V. v. F.P.W.

100 A.3d 670, 2014 Pa. Super. 204, 2014 Pa. Super. LEXIS 2915
CourtSuperior Court of Pennsylvania
DecidedSeptember 19, 2014
StatusPublished
Cited by23 cases

This text of 100 A.3d 670 (M.E.V. v. F.P.W.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.E.V. v. F.P.W., 100 A.3d 670, 2014 Pa. Super. 204, 2014 Pa. Super. LEXIS 2915 (Pa. Ct. App. 2014).

Opinion

OPINION BY

WECHT, J.:

M.E.V. (“Mother”) appeals the custody order entered on January 8, 2014. In its January 2014 order, the trial court reversed a preexisting August 2012 custody order, in which the trial court had granted Mother primary physical custody of the parties’ two children, daughter I.W. (born in March 2007) and son F.W. (bom in June 2008) (collectively, “the Children”). In effect, the January 2014 order transferred primary physical custody to F.P.W. (“Father”). Pennsylvania law directs courts, in deciding any petition seeking the modification of an existing custody order, to consider individually a raft of factors enumerated by statute. The trial court in this case did not conduct such an inquiry in tandem with its 2014 order, instead incorporating by reference its 2012 findings of fact, even though various aspects of the parties’ relevant circumstances undisputedly had changed in the interim. We find that the trial court did not fulfill its statutory obligations in disposing of Father’s petition to modify custody. Consequently, we vacate the trial court’s order and remand for further proceedings in conformity with the discussion to follow.

Beginning on January 24, 2011, new legislation1 prescribed a number of factors that a trial court must consider discretely in entering or modifying a custody order:

(a) Factors. — In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child. (2.1) The information set forth in section 5329.1(a)(1) and (2) (relating to consideration of child abuse and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s education, family life and community life.
(5) The availability of extended family-
id) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, [672]*672developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

Notably, this Court has held that it is not sufficient that the trial court merely state its reasoning on the record in open court or conclusorily assert that it has considered the enumerated factors in reaching its disposition.

The Act requires a court to consider all of the § 5328(a) best interest factors when “ordering any form of custody.” 23 Pa.C.S. § 5328(a).... [Subsjections 5323(a) and (d) reinforce this mandate by requiring a court to delineate the reasons for its decision when making an award of custody either on the record or in a written opinion. Mere recitation of the statute and consideration of the § 5328(a) factors en masse is insufficient. C.B. v. J.B., 65 A.3d 946, 950 (Pa.Super.2013). A trial court’s failure to place its reasoning regarding the § 5328(a) factors on the record or in a written opinion is an error of law. J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super.2011). Accordingly, in C.B., when the trial court merely stated that it had considered the § 5328(a) factors, we held that the trial court’s on-the-record explanation was insufficient under the statute. 65 A.3d at 950-51. Similarly, in M.P. v. M.P., we found error where the trial court listed the § 5328(a) factors but failed to apply them. 54 A.3d 950, 955-56 (Pa.Super.2012).

S.W.D. v. S.A.R., 96 A.3d 396, 401 (Pa.Super.2014) (citations modified). “The best interests standard, decided on a case-by-case basis, considers all factors [that] legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa.Super.2006) (quoting Arnold v. Arnold, 847 A.2d 674, 677 (Pa.Super.2004)).

In a prior memorandum, in which this Court affirmed the August 2012 custody order that directly preceded the January 2014 custody order now presented for our review, we provided the following account of this case’s factual and procedural history up to that time:

Father and Mother were never married. On August 12, 2010, Mother filed a complaint for custody seeking primary physical custody of the Children. The trial court held a hearing on the custody complaint on September 7, 2010. On that same date, pursuant to an agreement, the trial court entered a custody order, under which the parties were awarded shared legal custody of the Children, and shared physical custody, alternating on a week on/week off basis, except when the parties had Protection from Abuse (“PFA”) orders in effect.
On August 31, 2011, Father filed a petition for modification of custody and for contempt, seeking primary physical custody of the Children and partial physical [673]*673custody with Mother every other weekend.

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Cite This Page — Counsel Stack

Bluebook (online)
100 A.3d 670, 2014 Pa. Super. 204, 2014 Pa. Super. LEXIS 2915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mev-v-fpw-pasuperct-2014.