By Russell J. Adkins, Associate
Due to the difficult to quantify “best interests of the child” standard, child custody cases have often left parents – particularly those who have brought unsuccessful custody petitions before the court – disappointed, confused, and yearning for a greater explanation for a judge’s custody determination.
Prior to the enactment of Pennsylvania’s new child custody law, which took effect on January 23, 2011, it was common for even lengthy, bitterly-contested custody battles to be concluded with a one-sentence court order that did little to address the many issues brought before the Court. In those cases, after months of litigation, costs and great emotional strain, parties and their attorneys were left grasping for an explanation as to how the judge could not be persuaded by the case that was presented. After all, given the nature of a custody dispute as well as the emotional investment made by the parties, it is often inconceivable to a custody litigant when a judge does not decide in their favor.
As part of the new law, Pennsylvania family court judges will be required for the first time to state on the record (either orally in open court or in a written opinion) the reasons behind a child custody determination. In addition, the new law brings with it the inclusion of sixteen (16) specific factors that a judge must consider when determining the best interests of the child. These factors, which are too lengthy to reprint in this space, have been developed through many years of custody case law. While the factors are generally well known to experienced family law practitioners, they certainly are not as well known to custody litigants, and certainly to incorporate these factors into the custody statute should add some clarity for all parties to custody litigation. A complete listing of these factors can be found here.
Another significant change in the new law, found at 23 Pa.C.S. 5337 is the requirement that a parent seeking to relocate with children must provide sixty (60) days advance notice to the other parent, who then has thirty (30) days to file a counter-petition with the Court objecting to the proposed relocation. The introduction of structured framework for the relocation process is a welcome change to an area of the law which is often a source of parental anxiety and fiercely-contested court battles, particularly where a parent is seeking to relocate a long distance. In addition to providing safeguards against sudden, unauthorized moves (whether or not a custody order has previously been in place), the new framework also creates a good foundation for attempts at compromise and settlement by forcing the parties to set forth their respective positions well in advance of the relocation hearing.
The new law also explicitly provides that judges are to make custody determinations without regard for the gender of the parties – specifically, that no party shall receive preference based upon gender in any custody award. While this is a step toward making sure each parent stands from the outset of a case, It is important to note that this is not a per se presumption favoring shared custody (a change which was lobbied for by some groups, but not included in the final version of the statute). This provision constitutes more of a clarification or point of emphasis than an actual change in the law, likely in a direct attempt to change the perception held by some that mothers have received preferential treatment in custody cases.
Other highlights of the new custody law include:
- At 23 Pa.C.S. 5329(a), an expanded list of crimes that must be considered by judges in the event of a conviction against a parent or the household member of a parent. The full text can be found here.
- The authority for the Court to require that each party to a custody dispute submit a “parenting plan” to aid the judge in resolving the conflict. Parenting plans would act as a party’s proposed roadmap for caring for the child(ren) at issue, including topics like custody schedules and transportation, education, religion, health care, childcare arrangements, procedure for resolving proposed changes and other disputes that arise. The parenting plan law, along with the required format, can be found here.
Russell is an associate at our law firm. His practice area includes family law, divorce, child custody, domestic relations, pre- and post-nuptial agreements, adoption, and name changes.
This article is for informative purposes only, and is not intended to provide legal advice. This article is merely an overview of Pennsylvania’s new custody law, and is not a substitute for a full review of the entire statute and applicable case law and rules of civil procedure. Individuals involved in a custody dispute, or in need of legal advice of any kind, should contact the licensed Pennsylvania attorney of their choosing to discuss their circumstances.