On June 17, 2015, the Superior Court of Pennsylvania handed down K.T. and M.R.T. v. L.S. f/k/a L.R., 118 A.3d 1136 (Pa. Super. 2015).
In K.T., paternal grandparents sought partial physical custody of their minor grandchildren, from the minor children’s Mother. On cross-examination, it was revealed that paternal grandparents had several past criminal offenses, which were not offenses listed by the Pennsylvania legislature for consideration, when a party seeks “any form of custody,” pursuant to 23 Pa.C.S. Section 5329(a).
The trial court allowed testimony of paternal grandparents’ past criminal offenses on the theory that the character exhibited by those offenses, which, interestingly, included crimes of dishonesty, might impact “whether or not they should be around children.”
On appeal, paternal grandparents raised several issues, most notably, whether “the legislature limited the relevance of criminal convictions to only those offenses enumerated in Section 5329(a), in awarding custody.”
The court first held that “[t]he plain language of the statute reveals the obvious intent of the Legislature to ensure that custody is not being provided to a party whose past criminal behavior presents a present threat of harm to the child.”
The court subsequently added, “Section 5329 makes clear the type of criminal convictions the legislature deemed relevant for purposes of making an order of custody, by specifically enumerating only those crimes which evidence a threat of harm to the child.”
Counsel for mother made the overly-inclusive argument that Section 5328(a)(16), the “any other relevant factor” portion of the custody statute, allowed consideration of grandparents’ past criminal offenses.
The Superior Court disagreed. “We cannot agree that the court’s admission of evidence concerning [grandparents’] criminal histories was proper under subsection (a)(16), where the Act expressly delineates those criminal convictions which are relevant to a custody determination, and the offenses at issue are not among those listed.”
In addressing what many practitioners will see as a nexus between a parent’s poor choices and the best interests of the child, the court cited a string of cases holding, among other things, “that unless it is shown that [a] parent’s conduct has had harmful effect on the child, that conduct should be given little weight in custody determinations,” and that a “party’s past conduct is not relevant to [a] custody proceeding unless it will produce ongoing negative effect on [a] child’s welfare.”
This case squarely addressed relevance of the non-listed criminal offenses, and plainly declared that only the enumerated offenses can be said to have any definitive ongoing negative effect.
In sum, the court made plain that the legislature’s choice of crimes must be considered, whether they bear any temporal or actual relation to the best interest of the minor child. Looking at those crimes through the lens of time, one might argue that this application is unfair. Such is the case with many presumptions and other legal fictions.
This decision nevertheless operates as a boon to parents seeking a reprieve from their past, or for those poor choices made while not acting as custodian to the child, and commands consideration of those offenses only for their actual and direct bearing upon the minor child’s best interests.
This should point the astute trial practitioner to the appropriate scope and level of inquiry, in addressing the past criminal conduct of a party.
Full opinion here: