August 9, 2012

Revised Child Custody

CUSTODY

13-1A REVISED CHILD CUSTODY ACT

STATUTORY FACTORS REVIEW

The mother appealed from the trial court order that granted permission for the father to move from Susquehanna County, Pennsylvania, to Barton, New York, with the parties’ male child. The appeal required consideration of the procedures and legal standards set forth in the newly enacted Child Custody Act, 23 Pa.C.S. § 5321 et seq. On November 23, 2010, the Pennsylvania legislature enacted the Child Custody Act, Act No. 112 of 2010. The text of the session law provides that the new law “shall take effect in 60 days,” that is, on January 24, 2011, and further states in its section 4 that “a proceeding under the former provisions of 23 Pa.C.S. Ch. 53 which was commenced before the effective date of this section shall be governed by the law in effect at the time the proceeding was initiated.” 2010 Pa.Legis. Serv. Act 2010-112. This latter directive is susceptible to at least two interpretations, depending upon the meaning assigned to the word “proceeding.” If a “proceeding” refers to the entirety of a custody action, that is, from the initial filing of a request for custody and including all subsequently decided issues, then the directive would require the application of the provisions of the former Child Custody Act [23 Pa.C.S. §§ 5301–5315, repealed] for any custody case filed prior to January 24, 2011. If, on the other hand, a “proceeding” is distinguished from a custody “action,” so that various “proceedings” (for example, proceedings for relocation, modification, and enforcement) take place within the context of a custody “action,” then all such proceedings initiated after January 24, 2011, would be governed by the new act— even if the original custody action was filed prior to its January 24, 2011, effective date.

The act does not expressly define the term “proceeding.” The object of statutory interpretation is to ascertain and effectuate the intent of the legislature. The court must assume that the legislature did not intend an absurd or unreasonable result. Surely, the legislature intended to distinguish between an “action” for custody and subsequent “proceedings” in connection with that action. This interpretation provides for the broadest possible application of the procedures and legalstandards in the new act. Under the alternative interpretation, the provisions of the old act would continue to apply to all aspects of every custody action filed before January 24, 2011—and would continue to apply in those actions for many years into the future—an absurd and unreasonable result. Obviously, the legislature intended for the provisions of the new act to apply to all matters relating to child custody after the act’s effective date, so that the new act applies to all custody proceedings commenced after January 24, 2011. Because the father initiated his relocation request after the effective date of the new act, and the mother’s request for modification of the custody order followed, the provisions of the new Child Custody Act applied in this instance. E.D. v. M.P., 33 A.3d 73 (Pa.Super. 2011).