Custody is a very contentious subject. Because children are the most important byproduct of a marriage or a relationship, the children often become pawns in a breakup. Too often parents use their children to punish the other side. When I meet with clients who have a custody issue it is important for them to understand that the more the parents can agree on custody schedules, the exchange of the children and holidays etc the better off they will be. Having the courts decide your children’s schedule would not be the way that I would want to go but sometimes it is not possible to have the luxury of an agreement and it is good to know that the court system is there for you. Also grandparents and third parties who stand “in loco parentis” or in the shoes of parents may have standing to bring a custody action.
Physical custody and legal custody agreements are the two types of custody. Physical custody is what it means. Who has physical custody of the children and for how often. One can have primary custody in that they have the majority of overnights or partial custody which is only some of the overnights in the month. Parties can also equally share custody of the children. Compared to years ago it is now a presumption that mom and dad should have equal time with the children. Unfortunately, school schedules, work locations of either parent may not permit such an easy 50/50 schedule. If that is the case then an order will be entered when one cannot be agreed upon. There is also legal custody. In the majority of cases the parents share legal custody. That means that they each have a say in the welfare of their children as it relates to their health, education, religion and other major decisions in that child’s life. There are many ways to formulate a custody schedule and all parties need to keep an open mind about what works best for everyone. The children’s best interests are the legal standard to decide custody cases but the schedule has to fit in with parents schedules as most parents both work. I have found that the parties who can come to agreements without court intervention are most happy with child rearing post divorce or post breakup because they were in control not the court. However a consent custody agreement can be entered with the court and is a good idea to have that order for your school or day care to follow. If parents cannot communicate a program called “our family wizard”, is very useful for the parents to communicate. This provides a method of talking to each other without reacting to each other verbally. Their thoughts and written reactions to each others posts can be viewed by the judge and of course the attorneys of the parties. This insight into how the parties communicate often gives the courts a greater understanding of what is going on in a case that is not going smoothly.
If custody litigation the court begins, the court may on their own or with a motion from either party have a guardian ad litem appointed to look out for the best interests of the child. A guardian ad litem can be an attorney or a mental health professional. That person has access to all records that deal with the children, attends all court proceedings and of course has access to the children and parents so that they can assist the parties in dealing with issues that arise before the parties retreat to their corners and begin battle with their attorneys.
Relocation is another issue in custody. Often a parent has to move due to work or becoming involved in another relationship. This move can seriously affect your custody schedule and unless the parents agree litigation may be necessary to attempt to make the move and change the custody schedule. Relocation is not an easy decision and must be made with great thought and planning because it can greatly affect the time you have with your children.
One must complete a criminal verification form when heading into court for a custody case I am giving you a link to the form that is a requirement for all cases in Pennsylvania.
Finally the court must consider the following 16 factors when deciding a custody case:
- Which party is more likely to encourage and permit frequent and continuing contact. between the child and another party.
- 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.
- The information set forth in section 5329.1 (a)(!) and (2) (relating to consideration of child abuse and involvement with protective services)
- The parental duties performed by each party on behalf of the child.
- The need for stability and continuity in the child’s education, family life and community life.
- The availability of extended family.
- The child’s sibling relationships.
- The well-reasoned preference of the child, based on the child’s maturity and judgment.
- 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.
- Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
- Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
- The proximity of the residences of the parties.
- Each party’s availability to care for the child or ability to make appropriate childcare arrangements.
- 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.
- The history of drug or alcohol abuse of a party or member of a party’s household.
- The mental and physical condition of a party or member of a party’s household.
- Any other relevant factor.
Nothing is more important than the welfare of our children. Especially those seeing their parents break up. So much changes for them and the more parents and the legal system can do to make the transition easier the better it will be for them and a healthy future.
Custody of your children does not and should not be a battle with the other parent. Please remember that the legal standard remains as what is in the best interest of the child not the parent!