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Pennsylvania Divorce and Domestic Relations Blog

Full Custody Factor Analysis Can be Waived

By Mark Ashton

Circa 2015, Pennsylvania decided to introduce statutory factors which need to be addressed in deciding any child custody ruling. The wording is fairly explicit:

In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving substantial weighted consideration to the factors specified under paragraphs (1), (2), (2.1) and (2.2) which affect the safety of the child.

23 Pa.C.S. 5328 (modified in August 2025)

Meanwhile, many litigants arrive in custody court having resolved most of their dispute. They just want the court to address and decide specific issues. Yet the statute suggests any order requires consideration of all relevant factors including 10 specific factors identified in the statute. We should caution that once the record is opened and the testimony starts to flow, it’s just as common for new disputes to emerge. “Oh, you want Junior to play football over my objection, I want June to go with her soccer team to Disney World next Spring.”

Smith-Goodman v. Boyer,  decided on August 6 by the Superior Court illustrates this. Philadelphia County is a very busy place for child custody and cases can take years to resolve because of the backlog. Judges facing that kind of calendar are not anxious to complete a hearing on football and Disney soccer by providing a complete eleven factor analysis guided by the statute where the disputes are largely unrelated to the stated factors.

The Smith-Goodman dispute began in 2010 when the child was one. The parties agreed to share legal and physical custody back then but became frequent flyers in family court over the next decade. Beginning in 2022 Smith-Goodman lost legal custody and went to supervised visits. That was later modified to abandon supervision. In May 2025 she filed for primary physical and joint legal custody. This went to trial in October 2025. Smith-Goodman had counsel. Boyer represented herself. Once in the witness box, Smith-Goodman said she really only wanted one overnight each week. As for joint legal custody, she professed she would be satisfied with access to the child’s medical records on the provider’s portal.

The trial judge heard this and seized the day. On the record she asked petitioner’s counsel if this was an omnibus modification or whether there were but two issues: an overnight visit and access to the medical records. Counsel responded affirmatively. The judge then asked the pro se Ms. Boyer, if she was satisfied if the court decided those two issues alone. Again, the answer was affirmative. The Court then concluded the hearing and issued an order denying the modification.

Smith-Goodman appealed and asserted that the court never addressed all of the custody factors in its ruling. The Superior Court affirmed, citing its prior precedential ruling that “…in cases where a trial court is tasked with addressing only a ‘discrete and narrow issue ancillary to a materially unchallenged custody arrangement,’  consideration of the Section 5328(a) custody factors is not necessary.” M.B.S. v. W.E., 232 A.3d 922, 930 (Pa. Super. 2020). See also S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014).

This is a place where attention needs to focus. A modification of legal custody seems to require a full factor analysis. M.B.S. v. W.E., 232 A.3d 922, 930 (Pa. Super. 2020). There is language quoted in the Smith-Goodman case which seems to run contrary to the ruling which holds that discrete issue decisions do not require full factor analysis. The Court notes that there are times when a discrete issue (e.g., which school a child should attend) can trigger a variety of wider ranging custodial factors (e.g., transportation, school holidays). That may demand that the prevailing eleven factors be considered and addressed. But the appellate decision holds that the appellant also waived a numbered factor analysis where she made no record of those factors.

Practitioners need to stop, look and listen before responding to a judicial inquiry about what issues are to be decided. As we all know, once the record opens, “best interests” seem to triumph over whatever anyone put in the pleadings months earlier. But when judges coming calling with questions like “What is it you want decided?” lawyers need to respond with care lest their appeal founder on the rocks of waiver. Understand as well that clients are not above contending that their lawyer messed this up. The client wanted the whole schmear of custody entitlements under Section 5328 including the eleven factor analysis. That’s a discussion needed before the gavel drops and the games begin.