Sixteen Most Important Factors In Child Custody

Pennsylvania's new child custody law contains numerous revised standards and rules that lawyers and parents must understand in order to successfully achieve their goals.

While the law does not present dramatic or controversial change, it does alter the way child custody cases are handled in court. Litigants must tailor their methods, strategy and overall efforts to satisfy the law's updated requirements and procedures.

This article will address the law's most significant change: An objective guideline has been established for courts to follow when deciding custody disputes.

Pennsylvania's longstanding yardstick by which to measure a parent's suitability as a child's caregiver has been "the best interests of the child."  But the view of what is in a child's "best interest" has often varied among courtrooms and judges (as well as custody evaluators, child psychologists and other well-meaning professionals).

The new law, which took effect early 2011, attempts to avoid the vagueness of that yardstick and the seemingly subjective definitions of what, indeed, is in the child's best interest. The new law sets forth a formal guideline designed to identify and define what is in "the best interests of the child."

As a result, specific factors will mean more than personal opinions in deciding, on a case-by-case basis, the outcome of child custody disputes.

In plain language, the 16 questions that must be considered by the court are:

1.   Which parent is more likely to encourage and permit frequent and regular contact between the child and the other parent?

2.   Has there been phsyical or emotional abuse committed by a parent (or a member of that parent's household) and does that abuse present a risk of harm to the child? Which parent can better supervise the child and protect the child from phsyical or emotional harm?

3.   What have been the parental duties performed by each parent for the child? Who has been the primary caregiver?

4.   Which parent can better satisfy the need for stability and continuity in the child's life (education, family and community relationships)?

5.   Which parent can better offer the child the support and availability of an extended family?

6.   Which parent offers a continued relationship with the child's sisters, brothers or half-siblings?

7.   Does the child have a personal preference, assuming the child has the maturity and judgment necessary to make an informed and well-reasoned choice?

8.   Has either parent attempted to turn the child against the other parent (or allowed a third party such as grandparent or paramour to try to poison the child's relationship with the other parent)?

9.   Which parent can better offer the child a loving, stable and nurturing environment and relationship that is adequate for the child's emotional needs?

10.  Which parent is more likely to attend to and satisfy the child's daily physical, emotional, educational, spiritual and developmental needs?

11.   How near to each other, or far from one another, are the homes of the two parents?

12.   Which parent is more available to care for the child (or better able to make arrangements for suitable child care)?

13.   Does either parent have a history of promoting conflict with the other? Which parent is more  likely to cooperate or "co-parent" with the other? Which parent has better demonstrated the ability to co-exist with the other thus avoiding placing the child in the middle of disputes?

14.   Is there a history of drug or alcohol abuse by either parent of a member of that parent's home?

15.   What are the mental and physical conditions of the parents or members of that parent's household?

16.   Are there any other "relevant" factors that must be considered?

This new law will be tested and examined in the coming years by Pennsylvania's trial courts. The 16 factors will likely be clarified and commented upon by our appeals courts.

The new formal guidelines apply to custody litigation launched after January 2011, when the law took effect. However, there is little doubt the guidelines are already being considered -- at least informally -- by the courts in ongoing cases that began prior to January 2011. That is because the guidelines do not attempt to drastically change the law, only narrow and define certain custody issues.

Most judges have already been following these guidelines before there was a move by state legislators to formalize them into a statute. In fact, the guideline's 16 questions are quite similar to an informal "checklist" that has long been given to child custody lawyers by one particular Lehigh County judge. That was the judge's way of telling lawyers that those questions needed to be answered.