The Odds are Evened Between Parents
The standard for determining child custody is what is in the best interests of the child. However, before Pennsylvania enacted a major change to its’ custody statute, which can be found at 23 PA C.S. A. section 5328, how best interests was determined could vary significantly from one county to another or from one judge to another. The enactment of the Custody Guidelines was a legislative attempt to provide a gender neutral, fact specific, roadmap for custody court judges.
Under the Pennsylvania Child Custody Guidelines there are 15 factors that a court must consider when it is asked to determine the custodial status of a child. (for a discussion on custody status generally see blog post Child Custody 101). Under recent caselaw it is clear that trial courts must evaluate each factor individually, and weigh it in the context of all the facts before ruling on custody.
The factors that must be considered under Section 5328 are listed below. A court should evaluate the facts raised by the question and try to determine if the answer balances the scales in favor of
Father – Mother – or Both parents equally
1. Which parent is more likely to encourage and permit frequent and continuing contact between the child and the other parent?
2. Was /Is there present and past abuse committed by a parent or a member of a parent’s household? If so, is there a continued risk of harm to the child[ren]. Which parent can provide better physical safeguards and supervision?
3. Which parent has/does perform the “parental duties” on behalf of the child?
4. Who can provide stability and continuity in the child’s education, family and community life?
5. Is there extended family available? If this is a factor, the Court should look contacts with siblings, grandparents, uncles, aunts, cousins etc. on both sides.
6. Are there sibling relationships, and how might they be affected?
7. Does the child have a preference? As children get older their desires can be taken into account by a Court. A well-reasoned, intelligent preference on the part of a child will be given weight, although is not a controlling factor.
8. Has a parent attempted to turn the child against the other parent? Except in cases of domestic abuse, where reasonable safety measures are necessary to protect a child from harm, Courts closely evaluate attempts to alienate a child from another parent.
9. Which parent is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs?
10. Which party is more likely to attend to the daily physical, emotional, developmental and special needs of the child?
11. How far apart do the parents reside from one another? What is the travel time?
12. What is each party’s availability to care for the child or make appropriate child care arrangements?
13. Is there a willingness and ability of the parents to cooperate with one another? What is the level of conflict between the parents?
14. Is there a history of drug or alcohol abuse by a parent or a member of a parent’s household?
15. Is there any issue with the mental or physical condition of a parent or a member of a parent’s household?
16. Are there any other factors that are relevant that a court should consider that are not part of the questions above?
Knowing that these are the guidelines that a court must use to determine custody might help some families work out custody arrangements without court involvement. Parents always know their children better than judges. If parents’ can be truthful with themselves about the answers to these questions, these guidelines might help them work out informal, agreed or stipulated child custody arrangements put the best interests of the child[ren] first. If a contested custody case should go to Court parents know what the Court wants to hear. The Guidelines are available to help parents be well-prepared on all the points. The Guidelines also can provide assurance to parents that they will receive a ruling that takes all the relevant factors into consideration. With these 16 factors as the context, neither parent comes to court with a presumption or an edge. The facts speak for themselves and the odds of a biased or unfair ruling are evened significantly.