What question could be more important to a parent than what are the factors that a court will consider in determining the custody of a minor child or children between separated or divorce parents?
The primary consideration of a court in Pennsylvania is, and always has been, the best interests of the child. But, of course, the best interests of the child may be in the eye of the holder and is an ambiguous term which could use some definition. The Child Custody Act, passed in the last session of the legislature, now lists fifteen separate and enumerated factors, and a catchall sixteenth factor, to be given weight in connection with the determination of any form of custody. The factors are as follows:
- “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.”
Reading over the factors, it may appear that parental cooperation is emphasized because it is mentioned in several of the enumerated factors to be given consideration. They are enumerated as (1); (8); and (13), all dealing with cooperation, co-parenting and attempting to foster a good relationship between the child and the non-custodial parent. The Act deliberately does not include gender as a factor. In the past, some courts and some advocates argued that young children should be with their mothers or that boys of a certain age should be with their fathers. There is no such consideration set forth in the new custody act.
Even though there are fifteen enumerated factors for consideration as well as a sixteenth factor being “any other relevant factor,” each case is different. The question of custody is so vital and the amount of time it takes to resolve this is so long relative to the period of childhood that every parent or other custodian is well advised to work closely with competent domestic relations counsel in proceeding.