In a custody proceeding, the role of the court is to determine the best interests of the child. To determine the child’s best interests, the Pennsylvania custody law since 2010 has contained a list of statutory factors that must be considered in every custody decision. In fact, the appellate courts have repeatedly maintained each of the 16 criteria must be specifically addressed in detail by the court. That’s why it is so important for parents to be prepared when they are facing a custody hearing. The team of custody lawyers at Pollock Begg applies years of experience to developing a narrative which will make sense and considers all of the factors that must be addressed in a custody decision.
What are the custody factors in PA?
The statutory factors for custody decisions in Pennsylvania include:
- Which party is more likely to encourage and permit frequent and continuing contact between the child and another party;
- The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child;
- The parental duties performed by each party on behalf of the child;
- The need for stability and continuity in the child’s education, family life and community life
- The availability of extended family
- The child’s sibling relationships
- The well-reasoned preference of the child, based on the child’s maturity and judgment;
- The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm;
- Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs;
- Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child;
- The proximity of the residences of the parties;
- Each party’s availability to care for the child or ability to make appropriate child care arrangements;
- The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another; a party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party;
- The history of drug or alcohol abuse of a party or member of a party’s household;
- The mental and physical condition of a party or member of a party’s household;
- Any other relevant factor, which permits the court to consider specific issues that might not be contemplated by the first 15 factors.
Which evidence is relevant in a PA custody case?
In order to negotiate a settlement or go to a custody trial, a parent must gather information and documents to identify the child’s best interests. It may be useful to keep a journal of the events that affect a child’s life, such as visitation with the other parent, school activities, family and religious activities, medical and counseling appointments and other events. These notes and journals should be focused on evidence that relates to the 16 custody factors, such as:
- Characteristics of the Parents’ Homes. This factor is not a high determining factor of the outcome of a custody case but demonstrates a parent’s basic ability to provide adequate shelter and a nurturing environment for the child. Compare the location of the parents’ homes, their proximity to schools, churches, day care, medical facilities and other services, the availability of playmates and babysitters and the quality of the physical facilities in your home, including the bedrooms for each child.
- New Relationships. It is generally irrelevant in a custody case to argue about who caused the demise of the parents’ marriage or relationship. Similarly, a parent’s relationship with a new partner is relevant only if the new relationship has a positive or negative impact upon the child or the child’s relationship with the parents. The court may consider the “morality” of each parent, but it is difficult to predict the standards by which a Family Division judge might measure a parent’s morality. Family Division judges view many nontraditional situations, and most judges take a pragmatic approach to custody cases. If a child is not adversely affected by a parent’s new relationship, then the new relationship may not be highly relevant to a determination of custody.
- Status Quo. One of the most significant factors in a custody case is the existing custody arrangement. The status quo custody arrangement is not binding upon the court, but it is highly relevant if the child is thriving. The courts may be reluctant to disrupt a child’s schooling by changing primary physical custody in the middle of a school year when the parents reside in different school districts. Similarly, a parent may argue that the status quo should not be disturbed if the change would disrupt the child’s routines, activities, treatment or other events. Furthermore, the fact that a parent surrendered custody to the other parent upon separation may be relevant to the issue of willingness to assume parental obligations. If a parent is seeking to change the status quo, he or she should be prepared to give a compelling reason for the change and explain how to minimize disruption to the child’s life.
- The Child’s Preference. A child’s preference is relevant only to the extent the child demonstrates sufficient maturity and reasoning to persuade the court to adopt the child’s preference. The judges will not permit a young child to dictate where he or she will live, just as a child cannot dictate whether to attend school or what to eat or when to go to bed. A teenager, however, may have significant influence in a judge’s decision. A parent might be able to predict the child’s preference but must not to attempt to influence the child’s preference (verbally or nonverbally). If a custody evaluator is appointed to make a recommendation to the court, the psychologist can usually detect whether a parent has attempted to influence the child’s preference. This practice reflects poorly on the parent because it places the child in the center of the parents’ conflict. Many judges are suspicious of notes or letters written by young children because they may be dictated by one of the parents. On the other hand, a parent may collect homework, pictures or other materials that demonstrate the child’s bonding.
- The Parents’ Availability and Work Hours. If a parent is otherwise fit, custody will not generally be denied merely because the parent must work full time to support himself or herself. A parent will not be denied custody where there is adequate provision for child care during the parent’s work hours. On the other hand, there may be significant advantages to full-time parenting. In any event, a parent should be prepared to describe a “typical day” if awarded primary physical custody, including who will provide child care during work hours, who will transport the child to school, activities and appointments and who is available to care for the child if the child becomes ill while a parent is working.
What does a custody evaluator do?
To determine the best interests of the children in a custody case, the judge may appoint a custody evaluator who is a psychologist or social worker with experience in the area of child development. The evaluator does not decide who will get custody but makes recommendations that might be influential on the outcome. The custody evaluator will interview the child, the parents, the parents’ spouses or significant others and other witnesses such as teachers, therapists or physicians. A parent should try to be familiar with what these witnesses will say to the evaluator. It may help to make a list of contacts, including names and phone numbers for the child’s teachers, coaches, therapists, physicians and other significant persons.
Custody cases are some of the most complex forms of litigation in the Family Division. The 2011 PA custody law provides a specific list of 16 factors that the court must consider. Many judges actually keep that list handy during a custody hearing to check off each factor during the testimony. Parents and their lawyers should do the same thing during custody hearings. Pollock Begg lawyers are experienced in preparing parents for their custody trials.
Call our offices to make an appointment with one of our family lawyers today.