One of the most important questions that parents typically ask during a divorce and custody battle is how to behave in order to obtain more custody of the children. As is mentioned repeatedly both on this blog and on the internet, Courts in the Commonwealth of Pennsylvania use a best interests of the child standard along with the sixteen custody factors which we have mentioned earlier. The custody factors are as follows:
§ 5328. Factors to consider when awarding custody.
(a) Factors.–In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) 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.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) 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.
(9) Which party 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, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
(13) 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.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor.
(b) Gender neutral.–In making a determination under subsection (a), no party shall receive preference based upon gender in any award granted under this chapter.
Obviously knowing these factors and making sure that a party adheres to them is a good part of achieving increased custody – but there are some nuts and bolts things that you should be aware of which generally apply to most Pennsylvania Courts.
First, most Courts would like to see joint legal and physical custody and in general (note “in general”) prefer a fifty – fifty custody arrangement between parents. It is generally believed that it is important to promote the relationships of both parents with a child. Most Courts will act to promote this despite some behavioral inequities.
Another very important concept that is extremely difficult for many parents to understand, is that an ex-spouse or other parent can be a difficult and cantankerous person who makes it hard to co-parent. Importantly unless this behavior can be demonstrated to have a direct negative effect upon the children, the behavior is much less important to the Court than to the parents. In other words, your ex-spouse can be a “horrible human being” who is “mean” to you – but unless this nasty behavior effects the children, for the most part, the behavior does not matter very much to the Court. Without delving into war stories, your ex can be a very adept liar – but if those lies do not hurt the children and frankly only hurt and upset you, the lies don’t matter much – even to a Court.
What matters to a Court is whether you allow access to the child to your ex. Who brings the child to school? Who does the homework with the child? Who takes the child to the doctor? Who takes the child to therapy? Who provides time, stability and emotional support? The key issue here is which parent invests their time and effort into their children. This does not have to be in terms of money spent – but time invested. Be the individual who parents and you have the best chance of retaining, maintaining and or increasing custody.