Weekly updates on family law topics by Brian C. Vertz | Partner
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Custody Factors

In a custody proceeding, the role of the court is to determine the “best interests” of the child. The court will consider the child’s physical, educational, spiritual and emotional needs, as well as the parents’ fitness and parenting skills, the child’s physical, intellectual and emotional development, the child’s preferences, the location and attributes of each parent’s home, the qualities of the school systems, neighborhoods and facilities where each parent resides, and other factors that affect the best interests and welfare of the child. I strongly believe that no court can determine the best interests of a child as effectively as the child’s own parents. The judges are motivated by the best intentions, but they do not have sufficient knowledge about the children or their parents to make the best decision for every child. The judges and court-appointed custody evaluators have very limited time and resources to investigate the numerous factors that may affect a child’s best interests. That is why I urge my clients to attempt to settle their custody cases if possible. In myexperience, you will be more satisfied with a custody arrangement that you have helped to fashion than a custody arrangement imposed by a court.

In order to negotiate a settlement or go to a custody trial, you must gather some information and documents to identify your child’s best interests. I urge you to keep a journal of the events that affect your child’s life, such as visitation with the other parent, school activities, family and religious activities, medical and counseling appointments, and other events. You should create notes to support your position, considering the following factors:

1. Characteristics of the Parents’ Homes. This factor is not highly determinative 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. It may be helpful to provide us with photos of the interior and exterior of your home and other facilities.

2. 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. The Family Division judges view many non-traditional 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

3. 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 are generally unlikely to disrupt a child’s schooling by changing primary physical custody in the middle of a school year, where 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 you are seeking to change the status quo, you should be prepared to give a compelling reason for the change and explain how you would minimize the disruption to your child’s life.

4. The Child’s Preference. A child’s preference is relevant only to the extent that 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. You might be able to predict your child’s preference, but you must not to attempt to influence your child’s preference (verbally or non-verbally). 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 are often dictated by one of the parents. On the other hand, you may collect homework, pictures or other materials that demonstrate the child’s bonding to you.

5. 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, you should be prepared to describe a “typical day” if you are awarded primary physical custody, including who will provide child care during your work hours, who will transport your child to school, activities and appointments, and who is available to care for your child if the child becomes ill while you are working.

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 custody evaluator will interview the child, the parents, the parents’ spouses or significant others, and other witnesses such as teachers, therapists, or physicians. You should be familiar with what these witnesses will say to the custody evaluator. Therefore, you should begin to make a list of contacts, including names and phone numbers for the child’s teachers, coaches, therapists, physicians and other significant persons.

The 2011 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. A Pennsylvania custody attorney can provide this list.