In J.R.M v. J.E.A. 33 A.3d 647, 2011 Pa. Super. LEXIS 4297, a Court initially granted a mother custody and limited the father’s custody for the apparent reason that the child was breast feeding with the mother. The father appealed the restrictions on his custody imposed by the Court.
Generally, if a Court finds that there is an ongoing risk of harm to the child or an abused party and awards any form of custody to a party who committed the abuse or who has a household member who committed the abuse, the Court shall include in the custody order safety conditions designed to protect the child or the abused party. However, in this case there did not appear to be any testimony or evidence which would have led to the imposition of restrictions on the father.
The record reflects that the trial Court imposed restrictions on Father’s periods of partial custody. First, the trial Court ordered that “Mother or any other suitable care giver [sic]” may be present in the area where Father is visiting with Child. Although the fact that Mother is breastfeeding Child may have served as support for ordering that Mother is to be present in the area during visits, there is no indication in the record or in the trial Court’s findings of fact as to why another “suitable” caregiver would need to be present while Father visits with Child. The trial Court made no finding that Father was unfit or unable to care for Child on his own, or that he posed any sort of threat to Child if left entirely unattended.
The trial Court further disallowed Father from having visits with Child in his home or having overnight visitation with Child, indicating that it was a “long term goal” for Father to be able achieve such visitation in the future, “when the child is of the appropriate age.”
The trial Court made no finding that visitation in Father’s home would be detrimental to Child, that Father’s home was not equipped to have Child visit during the day or for overnight visitation, or that Father or his fiancé posed a threat to Child. Indeed, Father testified that he has a room furnished and set up for Child, and presented pictorial evidence to the trial Court. The record further reflects that Father’s fiancé has attended Father’s visits with Child, and there were no concerns expressed about her interaction with Child. Moreover, while Mother testified that it would be a hardship for her to make the two-hour drive to Father’s house with Child while Child is still breastfeeding every two-to-three hours, there is no evidence of record that supports a finding that Child could not travel such a distance once he is weaned. It appears from the record that the fact that the mother was breastfeeding the infant child and that the Court weighted this factor in its determination.
On appeal, the father argued that the trial Court erred in awarding primary physical custody to the mother without engaging in a fact-specific, case-specific analysis of the best interest factors. The appellate Court agreed with the father that the trial Court erred by failing to consider the factors required under 23 Pa.C.S. § 5328(a), in rendering a custody decision, noting that the trial Court based its decision almost exclusively on the fact that the child was breastfeeding and the parties’ difficulty communicating with each other. The appellate Court also agreed that the trial Court erred in imposing restrictions without justification.
The Superior Court indicated that because the lower Court did not discuss the reasons that it limited the father’s custody that the case be remanded back to the lower Court for further findings as to custody.
In summary, because the trial Court failed to account for the required factors in reaching its custody determination, the Court reversed the decision of the trial Court and remanded the case for the consideration of said factors and for further findings of fact. In the absence of a determination that the Child would suffer a detrimental impact by having unsupervised visits with the noncustodial parent, the trial Court shall enter an order granting unsupervised periods of partial custody for the noncustodial parent.
It is hard to come to completely guiding conclusions regarding this case. The record is not entirely clear what the basis was for the Court’s limited custody decision regarding the father. However, the Court repeatedly noted that the mother was breast feeding the infant and this seemed to signal that this was an important factor in its limitation of custody of the father – so that the breast feeding would continue without interruption by the father’s custody periods. Either way, clearly the fact that a mother is breast feeding is not a sole basis for not having some form of shared custody of an infant child.