In January 2011, the new Custody Act became effective in Pennsylvania. In the new Custody Act, there are 16 “factors”, which the Court must consider and analyze, in deciding a Custody matter. Since the enactment of the new Custody Act, prior judicial decisions and holdings have been laid to waste by the enactment of the new Custody Act.

    In a recent Pennsylvania Superior Court decision, P.J.P. v. M.M., 185 A. 3d 413 (Pa. Super. 2018), the issue of whether prior decisions on the standards the Court must use in deciding Shared (or Equal Physical) Custody cases was decided. Prior to the new Custody Act, the Courts in Wesley and Wiseman held that there were four factors in deciding whether to award shared (equal) physical custody:

  1. The fitness of both parents, and whether both parents are capable of making reasonable decisions concerning their child as well as willing and able to provide love and care for their child;
  2. Both parents must want to continue an active involvement in their child’s life;
  3. The child must look to both parents as sources of security and love; and
  4. There must be a minimal degree of cooperation between the parents.

    As you can see, the requirement is a “minimal degree of cooperation”. Clearly, the requirement was not that the relationship be amicable, but rather at least minimal.

    Since the enactment of the new Custody Act, there has been much discussion and debate between practitioners and practitioners and the Bench as to the fate of Wesley and Wineman.

    Under P.J.P., the Court decided that the trial Court no longer should consider the four factors above as controlling. Rather, the Custody Factors would apply. Note that contained within the Custody Factors is a factor that looks to the “level of conflict between the parties and the willingness and ability of the parties to cooperate with one another”.  Therefore, one of the Factors seems to encompass number 4 above.

    Therefore, Trial Courts, which hear the evidence in Custody Trials, no longer need to engage in the Wineman analysis when determining whether shared, or equal custody, is appropriate. In effect, the Court held that the four factors above have assimilated into the 16 Custody Factors under the new statute.

    Seeking a Custody Order or a change in your Custody Order? Contact the lawyers at SchwartzJordan. We are happy to help.

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