Does the Court Have to Reconsider the Custody Factors with Each New Hearing?



In a recent case, the Superior Court of Pennsylvania Ordered that the Court of Common Pleas of Cumberland County erred in its child custody order. The trial court incorporated by reference its consideration of some §5328(a) factors from a prior order. The Superior Court indicated that the incorporation by reference of an outdated analysis of factors was not appropriate. 


Here is a brief background of this very extensive case. A final custody order from 2016 awarded shared legal custody of child, primary physical custody to mother and partial physical custody to father on certain days and weekends. Mother filed for special relief requesting the court order the parties to participate in custody evaluation. Trial court deferred a decision on mother’s motion. In the meantime, father requested shared primary custody of child. In December 2017, trial court followed the GAL's recommendation and entered an interim order awarding father partial physical custody on an alternating two-week schedule. 


At a 2018 custody hearing, the trial court gave father partial physical custody every other weekend and granted mother's requests for preschool attendance and to designate a child counselor/play therapist, among other decisions. Both mother and father appealed that order. Mother argued that the trial court failed to consider all of the §5328(a) factors. Mother also argued that the trial court incorporated by reference a portion of a previous outdated analysis from an earlier order. The Superior Court agreed with mother that the trial court must analyze all of the §5328(a) factors any time that the trial court makes a change in a custody award. The Superior Court also agreed that incorporation by reference of a previous and outdated analysis of the factors was not sufficient and vacated the order.


As a result, the Superior Court vacated the trial court’s order and sent the matter back to the trial court for a complete analysis of the §5328(a) factors, followed by the entry of a new custody order. 


What does this mean for you? 

If the court has failed to evaluate all of the §5328(a) factors in your case or you have a modification hearing pending call Kinchloe Law at 215-301-9783 so that we can assist you in the assessment of your current situation and to discuss your options.