Understanding "The Best Interests of a Child"
The goal of custody trials in Family Court is to create a parenting plan, called a “custody order,” that ensures the “best interests of the child.”
Under Pennsylvania custody law, a judge or hearing officer, after holding a hearing, decides the custody arrangement based on what is in the best interest of the child. The court is required to consider all relevant factors. It must give more consideration to factors which affect the safety of the child. The law lists many factors to consider:
As you prepare for your custody hearing, you should review these factors and think about how they apply to your case. On the day of the hearing, your job is to convince the judge or Hearing Officer that it is best for the child to be in the custody arrangement you are asking for based on these factors.
In this list of factors, the bolded sentences are copied directly from the PA Statute. Underneath the underlined sentences, we explain how this factor might be related to your case.
Factors to consider when awarding custody (23 Pa. C.S. § 5328):
(1) Which party is more likely to ensure the safety of the child.
What this means:
The Court will consider which party has been a safe caregiver and will be able to keep the child in a safe environment. If one party has knowingly exposed the child to abuse, neglect or unsafe environment or people, this will be considered.
(2) The present and past abuse committed by a party or member of the party's household which may include past or current protection from abuse or sexual violence protection orders where there has been a finding of abuse.
What this means:
The Court must consider if any party or anyone in that party’s household has been abusive in the past. This must include abuse to the other party and the child(ren) in the case, but can also include abuse to others not involved in the custody case. If there have been prior protection from abuse or sexual violence protection orders against and findings were made in that case, those findings must be considered. If a protection from abuse order was previously entered “by agreement without admission”, that is without findings, the Court can consider that only after hearing testimony about the alleged abuse.
(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.
What this means:
The judge will consider whether you, your child’s other parent, and/or anyone else in either of your households have ever physically and/or emotionally abused the child or each other. It is especially important for the judge to know this information if the abuse happened in front of your child.
(3) Past determinations and consideration of child abuse and involvement with protective services.
What this means:
The Court will want to have all the information about any past involvement with the Department of Human Services (DHS) and any determinations made by DHS or any other child protective services agency. The judge will consider whether there is a current or former case opened with (DHS).
There are two types of cases that could be opened: Child Protective Services or General Protective Services. The judge will want to know whether the case is still open, what was being investigated, and the conclusion of the investigation.
(4) Violent or assaultive behavior committed by a party.
What this means:
In addition to criminal convictions, the Court must consider each party’s past behavior if that party has been violent or assaultive. This must include violence committed by a party even to others that are not involved with the case.
(5) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party if contact is consistent with the safety needs of the child.
What this means:
The judge will consider if you allow and encourage your child to visit and spend time (in person and/or over the phone) with their other parent, or if you have stopped (or tried to stop) your child from seeing their other parent. The other parent will be evaluated by the same standard. A party should not be penalized for preventing contact between the child and another party if that party reasonably believes the other party presents a threat of harm to the child.
(6) What each party does to parent the child.
What this means:
Parental duties are the daily basic things parents do for their children to keep them safe and healthy. Some of the parental responsibilities a judge might look at include: cooking and cleaning for your child, bathing your child, taking your child to doctor appointments, and/or attending meetings with your child’s teachers. The Court will look at who has done these duties in the past, and which party is more likely to continue to meet the child’s needs.
(7) The need for stability and continuity in the child's education, family life and community life, except if changes are necessary to protect the safety of the child or a party.
What this means:
The judge will consider how a change in custody may change your child’s current lifestyle, and the court favors stability for a child. The judge might look at how a change in custody would affect your child’s education, and if one party has already moved many times. For example, a change in custody could mean that your child needs to travel farther to get to school or even change the school they attend. The judge might want to know if this kind of change would be bad for your child. For stability in family and community life, a judge may look at whether a change in custody would affect how much they see other family members or friends. They might also want to know if it would affect your child’s ability to be a part of the community groups and activities they are currently a part of.
(8) The availability of extended family.
What this means:
The judge will consider if you or your child’s other parent have a supportive family close by, such as grandparents, siblings, cousins, aunts, and uncles who your child has a relationship with. This can also include non-blood relatives that are like family to you and your child.
(9) The child’s sibling relationships.
What this means:
The judge will look at whether your child has siblings and how a custody order might affect those relationships. A change of custody might mean that your child will be separated from siblings they are close to, but it could also mean that they will end up living with siblings they are close to, and the court is inclined to protect healthy sibling relationships. The court does consider half-sibling relationships.
(10) The preference of the child. The court must determine if the child carefully thought about his/her preference. The court must also assess the child's maturity, developmental stage, and judgment.
What this means:
If the judge thinks that your child is mature enough, they might ask who your child would prefer to live with and why. While the judge may take your child’s preference into consideration, they will also pay attention to the reason for your child’s preference. The judge may not ask this question directly, but may ask questions like “How would you feel if you spent more time your dad?” The judge will speak to the children without the parties being present.
(11) The attempts of a party to turn the child against the other party, except in cases of abuse where reasonable safety measures are necessary to protect the safety of the child. A party's reasonable concerns for the safety of the child and the party's reasonable efforts to protect the child shall not be considered attempts to turn the child against the other party. A child's deficient or negative relationship with a party shall not be presumed to be caused by the other party.
What this means:
The judge will consider if a party has spoken negatively about the other party or calls the other parent bad names in front of a child. However, if you are telling your child about bad things their other parent has done because they are abusive and you want to keep your child safe, the judge should not hold that against you.
(12) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
What this means:
Generally, the judge wants to see that you will be emotionally and physically supportive of your child. The judge might look at how each party has supported the child in the past, how each party meets the child’s emotional needs, and how stable each party’s relationship with the child has been. The judge should ask about which person seeking custody is there for your child when they are upset or having a hard time at school. They might want to know who makes your child feel better when they are scared or sad.
(13) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
What this means:
The court will look at each party’s ability to make sure the child is going to school, receiving special services if necessary, is being well kept and cared for, etc. If your child has a disability, the judge might want to know how you support their specific needs and if this is different from how the other person seeking custody supports their needs.
(14) How close the parties’ homes are to one another.
What this means:
The judge will consider how far each parent lives from each other. The judge will consider whether a change in custody drastically increases the child’s time being transported from one party’s home to the other party’s home, and if the distance makes a shared custody arrangement difficult.
(15) Each party's availability to care for the child or ability to arrange appropriate child-care.
What this means:
The judge will look at each party’s work schedules to see how available they are to care for your child and pick your child up from school or other activities. They might also want to know whether you and/or the other party is able to provide safe and adequate child care for your child if you aren’t able to care for your child. They might want to know if your work schedule has any flexibility in it if your child has an emergency (like needing to go to the hospital) that you need to take care of. However, parties should not be negatively impacted by reasonable employment that takes them out of the home.
(16) 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 or self from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
What this means:
The judge will want to see if you and the other party are able to talk to each other and act together in the child’s best interest. Even if you don’t fight with one another, they might want to know if you are able to make compromises or if it’s difficult for you to agree on anything. If you aren’t willing to talk with the other person seeking custody because they are abusive towards you or your child, that won’t be held against you.
(17) The history of drug or alcohol abuse of a party or member of a party's household.
The history of drug or alcohol abuse of a party or member of a party's household.
What this means:
The judge will consider whether you or the other party has had or currently has problems with drugs or alcohol and if impacts how you take care of your child. The court must also know if anyone in either of your households has struggled with drug abuse or alcoholism. To look at this, the judge might require drug tests for any party or records of any DUI charges/convictions.
(18) The mental and physical condition of a party or member of a party's household
What this means:
The judge will look at whether any party has any mental health issues or physical disabilities that would affect their ability to parent. The judge will also look at the members of the party’s household and see if they have a physical or mental disability that would affect the party’s ability to parent or put the child at risk of harm.
(19) Any other relevant factor.
The judge might look at any other information that is relevant to the child’s best interests. When you think about this factor, consider something that impacts your child’s wellbeing that wasn’t addressed specifically in the factors listed above. This might include special activities the child is involved in, or any other relevant circumstances of either party’s home or life.
The Court MUST order supervised partial physical custody if there are findings of abuse
If a court finds by a preponderance of the evidence (meaning it is more likely than not) that there is an ongoing risk of abuse of the child, the court can only allow supervised physical custody between the child and the party who poses the risk of abuse.
The party can overcome this by showing there is NOT a risk of abuse.
An indicated report for physical or sexual abuse by child protective services (also known as DHS) is a basis for a finding of abuse only after a new review of the circumstances leading to the indicated report.
What about criminal convictions and abuse history?
The court must also consider certain criminal convictions and abuse and determine whether they pose a threat to the child. This includes convictions and no contest pleas for violent crimes, including domestic abuse, assault and aggravated assault, crimes against animals, and also DUI and drug related offenses. You must file a Criminal Record/Abuse History Verification Form with your complaint and disclose whether you or any member of your household has a criminal or abuse record, and whether you are aware of any criminal record/abuse history of the other party or members of that party’s household.
To find out if the other party or members of that party’s household has any criminal convictions or pleas in Pennsylvania, go to https://ujsportal.pacourts.us/CaseSearch and follow the instructions carefully.