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 preference, the location and attributes of each parent’s home, the qualities of the different school systems, neighbourhoods and facilities where each person resides, and other factors that affect the “best interests” and “welfare of the child.”
The court is motivated by best intentions, however, the judges do not have sufficient knowledge about the children or their parents to make the best decision for every child. At the Marinaro Law we encourage, if possible, our clients to settle their custody cases at the custody conference stage rather than a prolonged hearing. We encourage our clients to gather information and documentation so that counsel may review with client and identify the child’s best interests. We urge our clients to keep a running journal of important events that affect the child’s life, such as visitation with the other parent, school activities, family and religious activities, medical and counseling appointments, and other events. Clients should create notes to support your position, considering the following factors:
1. Characteristics of the Parent’s home. 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 parties’ homes, their proximity to schools, churches, daycare, medical facilities and other services, the availability of friends and babysitters, and the quality of the physical facilities of your home, including the bedrooms for each child. It may be helpful to provide our attorney with photos of the interior and exterior of your home and other facilities.
2. Parties 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 on 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 custody judge might measure a parents’ morality. Judges view many non-traditional situations, and 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 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 on the court but 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 a client is seeking to change the status quo, he/she 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 his/her preference. Judges will not permit young children 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 much influence in a judge’s decision if it is well-reasoned and the child is mature for his/her age. A parent may be able to predict the child’s preference, but it is advised that they should not attempt to influence the preference in any way. 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.
5. The Parent’s Availability and Work Hours: If a parent is otherwise fit, custody will not generally be denied merely because the parent is working full-time. A parent will not be denied custody where there is adequate provisions 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, a client should be prepared to describe a typical day if they are seeking primary physical custody, including who will provide child care during your work hours, who will transport your child to school, activities and medical/dental appointments, and who is available to care for your child if the child becomes ill while the parent is working.
To determine the best interests of children in custody cases, the judge may appoint a custody evaluator, who is a psychologist or social worker with the experience in the area of child development. The custody evaluator will interview the child, the parents, the parent’s spouses or significant others, and other witnesses such as teachers, therapists, or physicians. Client’s should be familiar with what these witnesses will say to the custody evaluator. Thus, make a list of contacts, including names and phone numbers for the aforementioned individuals.
In 2011, the Pennsylvania Custody Statute provides a specific list of 16 factors that the court must consider. Contact The Marinaro Law for a list of the 16 factors and discuss experience custodial strategy for your custody case.