Family Law

Custody Law and Local Customs and Practices

By Aaron Weems

One of the more interesting aspects of practicing family law in Pennsylvania is that each County has its own unique nuances and habits with how they adjudicate custody matters. This may range from procedural practices in how they schedule conferences and Master's hearings to the anecdotal tendencies of the Bench. The variances between how issues are addressed in one county to another can sometimes be dramatic and other times frustrating. 

The Pennsylvania Legislature recently recast Pennsylvania's custody laws to reflect gender neutrality, an easily identified relocation process, and a general codification of a long series of case law which had shaped tactics and practices related to custody issues. Prior to the new custody law, however, the Pennsylvania Superior Court came down solidly on the side of uniformity and struck down the application of 'local practices' often employed in different counties.

B.C.S. v. J.A.S. dealt with the shared physical custody of the parties' two minor daughters.  This York County case was appealed upon the trial court's apparent decision to apply a heightened standard for communications between the parties which was not reflective of the custody code.  The Superior Court's holding viewed this application of a heightened standard to 'not comport with well established precedent.' The Superior Court further found that the York County trial court 'misapprehended' the law by imposing a heightened standard and concluded that the court abused its discretion.

The matter of interpretation and application of multi-pronged standards, such as the determination of what constitutes the 'best interests of the child,' may lead to a court having a particular tendency toward emphasizing one point over another when no particular prong should be artificially weighted to the detriment of others. This case highlights how the local customs and practices of a particular county may not necessarily follow the standards set forth in the code. 

Local customs and practices are something that every family law practitioner must take into account when evaluating a case. The Courts try to reach decisions as consistently as possible, therefore, the Superior Court's decision certainly sends a "shot across the bow" of trial courts and masters' offices that the standards drafted and passed by the Legislature are to be followed above local customs.

Full post as published by Pennsylvania Family Law on March 03, 2011 (boomark / email).