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, there are sixteen factors that the Court must consider when deciding the “best interests of the child.”
As you prepare for your custody hearing, you should review these sixteen 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 your custody 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 encourage and permit frequent and continuing contact between the child and another party.
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.
(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.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
What this means:
The judge will consider whether there is a current or former case opened with the Department of Human Services (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.
The judge will consider whether you, your child’s other parent, and/or anyone else in either of your households has been charged or convicted of certain crimes and whether this poses a safety risk to your child.
(3) The parental duties performed by each party on behalf of 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 judge may want to know how many of these responsibilities you take on and how many your child’s other parent takes on.
(4) The need for stability and continuity in the child’s education, family life and community life.
What this means:
The judge will consider how a change in custody may change your child’s current lifestyle, and the judge values stability for a child. The judge might look at how a change in custody would affect your child’s education. 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.
(5) 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.
(6) 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.
(7) The well-reasoned preference of the child, based on the child’s maturity 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. While the judge may take your child’s preference into consideration, they will also pay attention to the reason for your child’s preference.
(8) 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.
What this means:
The judge will consider if you tell your child negative things about the other parent or call the other parent bad names in front of your 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.
(9) 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 often you or your child’s other parent have moved. They might also look at whether you and the other parent have the same work hours every week. They might want to know if you have to travel out of the area for work frequently. The judge may ask whether you and your child do homework together and regular activities outside of school.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
What this means:
The judge will 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. 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.
(11) The proximity of the residences of the parties.
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 parent’s home to the other parent’s home.
(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
What this means:
The judge will look at each parent/guardian’s work schedules to see how available you both 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 parent/guardian can find 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.
(13) 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.
What this means:
The judge will want to see if you and your child’s other parent/guardian are able to talk to each other without fighting. 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.
(14) 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 your child’s other parent/guardian has had problems with drugs or alcohol and if this has affected how you take care of your child. They might also want to know if anyone in either of your households has struggled with drug abuse or alcoholism. To look at this, the judge might ask for drug tests or records of any DUI charges/convictions.
(15) The mental and physical condition of a party or member of a party’s household.
What this means:
The judge will look at whether one parent/guardian has any mental health issues or physical disabilities that would affect their ability to parent. The judge may 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.
(16) 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 15 factors listed above. Examples of this may include: child’s schooling (school district and attendance in school), housing, religion, and other household members.