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Caretaking Does Not Equate to Custody

James W. Cushing, Esq. on 6/17/2013

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In January 2011 the Pennsylvania state legislature passed a new custody statute, the application of which is still being worked out in the Courts. The recent case of M.J.M v. M.L.G., 63 A.3d 331 (2013) explored how the new custody statute deals with the traditional custody doctrine of "primary caretaker" and, in a more limited fashion, what the statute requires in custody orders.

M.J.M. dealt with an extremely acrimonious custody dispute with multiple years of litigation and disputes regarding most issues. The Father in the matter filed for primary custody, and secured the same away from the Mother who had always had primary custody up to that time, of their six (6) year old daughter ("child"). Mother appealed to the Pennsylvania Superior Court, which entered the opinion that is the subject of this article.

In her appeal, Mother argued that the lower court erred in failing to use the caretaker doctrine to rule on the case which, Mother asserted, would have resulted in her securing primary custody of the child. The caretaker doctrine, which was established in the matter of Commonwealth v. Jordan, 302 Pa.Super. 421 (1982), stipulates that when both parents are equally fit, weight is given, over other issues the court considers when determining custody, to the parent who had been the primary caretaker of the child-at-issue. Mother argued that, as she was the primary custodian of the child since her birth, the Court should have applied the caretaker doctrine to give her years as primary custodian greater weight than the other issues Father raised in the case.

The Court ruled that the new custody statute abolished the caretaker doctrine because it specifically laid out sixteen (16) factors for the Court to consider, including one (1) which resembles the old caretaker doctrine among them. The Court further indicated that the difference between the caretaker doctrine and the new custody statute is that the new statute simply provides no authority to give the caretaker factor greater weight than the other fifteen (15) factors. Indeed, the new statute precisely lists which factors are to be given greater weight, namely those which affect the safety of the child-at-issue, and the caretaker factor is specifically not one of them.

It should be noted that the Court’s discussion of the application, or even the abolition, of the caretaker doctrine in M.J.M. could be considered merely dicta as the Court did not make a finding that Mother and Father in M.J.M. were "equally fit" (the prerequisite for the caretaker to apply at all) to have primary custody. Instead, M.J.M. found it was more appropriate to give Father primary custody generally regardless of the application of the caretaker doctrine.

It is notable that there is also an inherent unfairness in using the caretaker doctrine against the parent who could be described as not being the primary caretaker because when parents are together, particularly when married, they divide parenting duties as they see fit at the time. This should in no way necessarily suggest the inability of the "non-caretaking" parent to engage in caretaking. Indeed, when the relationship of the parents dissolves, the "non-caretaking" parent often will specifically adjust his/her work schedule or lifestyle choices in order to take on greater parenting responsibilities in a way just as effectively as the "caretaker" parent.

As a secondary argument, Mother asserted that the trial court did not meet the requirement of the new custody statute for a court to specifically articulate the reasons for the custody order. The Superior Court did not give Mother’s argument much credence, summarily stating that the new statute only requires the trial court to articulate reasons in a written and/or oral opinion with consideration to be given to all sixteen (16) factors. The Court noted that the new statute does not lay out any requirement for a certain amount of detail in a trial court’s opinion.

The new custody statute has only been in effect for a little over two (2) years, and as more and more cases reach the appellate level, practitioners can be assured that its application will continue to become clearer and more refined.

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