Father Entitled to Unrestricted Visitation after Child is Weaned

by Brian Vertz on April 10, 2012

J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super.2011) – Mother and Father had a child to their very short term marriage. When the child was an infant, still breastfeeding, Mother initiated a custody proceeding and Father countersued for primary custody. Father resided in the North Hills of Allegheny County and commuted to Indiana, PA for work. Mother resided in DuBois.

After a custody hearing, the trial court ordered that Father have visitation with the child for three periods per week at Mother’s church in DuBois until the child was 8 months old, and thereafter in Indiana for three slightly longer periods each week. Father appealed the trial court’s refusal to award partial custody, including overnight periods, after the child reached eight months. Mother contended that the appeal was interlocutory as it anticipated modification if either party should relocate.

During the pendency of the appeal, the trial court asked the Superior Court to remand for further proceedings as Father had relocated to Indiana, rendering irrelevant some of the issues raised in the appeal. The Superior Court refused to relinquish jurisdiction, as “the issues raised by Father on appeal are not addressed in either Mother’s petition to modify the custody order or the trial court’s request for remand.”

Substantively, the Superior Court vacated and remanded the case to the trial court for failure to consider all of the factors set forth in the new custody statute. The Superior Court felt that the trial court’s decision was based exclusively on the fact that Mother was breastfeeding and on the difficulty in communications between the parents. On remand, the Superior Court directed the trial court to analyze all 16 factors. The Superior Court also remarked that there was no obvious reason for restricting Father’s partial custody to what amounted to supervised visitation after the child was weaned. Unless the trial court on remand should determine that Father presented a safety risk to the child, he should be entitled to unrestricted partial custody periods in his home, the Court held.

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