Common Custody Questions: What does a judge consider when deciding who should have custody of a child?
By Attorney Anna L. Knych
When parents are unable to reach an agreement between themselves regarding the custody of their child or children, a judge is the person who decides how physical and legal custody will be shared between the parents. A common question is what type of evidence will a judge consider? Will they look at the other parent’s work schedule? Will they consider the child’s accommodations at the other residence? Will they factor in the child’s preference? The judge can consider all of these items, among many other factors, in making a custody determination.
The judicial system puts what is best for the child at the center of the case and it tries to reach a decision based on the “best interests of the child”. In Pennsylvania, the law sets forth 16 factors which a judge is required to consider in order to figure out what custody decision will be best for the child. These factors are broad and cover a range of topics such as sibling relationships, the need for stability, any drug abuse or alcohol abuse, and the parental duties that each parent has performed. The final factor that the judge may consider is “any relevant” factor, which generally means that judges can consider any item which may affect the health and well-being of the child. Judges usually find that serious items, such as things that affect the child’s safety, are relevant. They may find, however, that less-serious items, such as whether the child watches too much television at the other parent’s house, are not relevant to the custody decision. Each custody case is unique though and judges have broad discretion to decide what is relevant in each case.
The factors which a judge is required to consider are found at 23 Pa.C.S. §5328 and are:
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.
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.
Attorney Anna L. Knych is accepting new clients. Call (717) 697-4700 or email aknych@waltersgalloway.com to schedule an appointment.
