The Court’s paramount concern in all custody cases in Pennsylvania is what is in the best interests of the child. However, in January, 2011 a new statutory law took effect that requires the Court to consider certain factors when deciding a custody case.
Custody cases usually involve two prongs: Legal Custody and Physical Custody. Legal Custody involves the right to make major decisions on behalf of a child such as those decisions that involve religion, medical, and education, or otherwise any other type of decision that impacts the welfare and well-being of a child. Physical Custody involves the physical possession and control of the child. Thus, when a Court is tasked with deciding a custody case, it typically requires the Court to make determinations involving Legal Custody and Physical Custody, and the Court is mandated to consider the factors set forth in the Pennsylvania Child Custody Law, 23 Pa.C.S. §5328(a), giving weighted consideration to those factors which affect the safety of the child, in making said determinations. In addition, the Child Custody Law further provides that custody determinations shall be gender neutral and no party shall receive preference based on his or her gender.
The following are the factors that a Court must consider in making custody determinations:
(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.
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