How Custody Factors can affect a Custody Schedule

So often I hear how a particular outcome in a custody, divorce or support matter is “unfair” because my client “knows a guy” who didn’t have to give up as much or got a better custody arrangement or had a significantly different support order.  A client will often compare her situation to a relative, a friend or a co-worker and wonder why things turn out differently for her.  As attorneys, we try to give clients the best advice given the circumstances of each client’s situation, but that will not necessarily be the same as your sister, friend or coworker.  This series of blog posts will attempt to shed some light onto some of the reasons for the differing outcomes in family law cases.

Custody

The legislature has outlined the factors that are required to be considered in a making a decision in a custody case.  There are a total of 15 concrete factors and a 16th which allows the judge to consider “any other relevant factor.”  Those factors, listed at 23 Pa.C.S.A. 5328 include the following: which party is more likely to encourage and permit frequent and continuing contact between the child and another party, the need for stability and continuity in the child’s education, family life and community life and which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs, and others.  Parents (or grandparents) in a custody action often point to one specific trait or issue of the other parent in defense of why that other parent should get no or minimal custodial time with the child.  However, typically no one factor is going to make the determination.  The law requires that all the factors (if applicable to the particular case) be weighed and considered in making a custody determination.  In other words, the fact that the other parent has three DUI's from 5 years ago or has a spotty work history or has a had multiple boyfriends and residences in the past 2 years may be persuasive, but are not the sole issues that a judge will consider. 

 In looking at these factors, the court is guided by the singular principle of custody law – doing what is in the “best interest of the child.”  While the legislature provided guidance in making this decision in creating the list of factors discussed above, ultimately it is up to the judge to weigh which factor or factors are most persuasive given the circumstances of your specific situation.  As in most areas of family law, there are exceptions to every rule and each situation is different, though on the surface it may appear the same. 

An example of the individualized nature of these decisions lies within one of the factors listed in section 5328 is “the well-reasoned preference of the child, based on the child’s maturity and judgment”.   Under the law, the child does not get to decide where he/she lives.  The age, maturity level and intellect of the child will often affect how much weight will be given to his/her preference, provided the child’s preference is “well-reasoned.”  However, there is no magic age, grade level or I.Q. where the child’s preference automatically rules the outcome.  Like all other factors, this is just one that the judge must consider and weigh among and against all of the other factors.

An experienced attorney, in preparing a custody case, will ensure that all relevant factors listed in section 5328 are presented to the judge, allowing the judge to make a reasoned and informed decision.  Remember that, generally, the only information a judge has about your situation is what is presented to him or her during the custody hearing.  If the judge does not have the evidence to consider on a particular factor, the judge cannot utilize that factor in making his or her decision and it could result in an undesirable ruling.