Family Law Update: Changes in Custody Laws

In November 2010, former Governor Rendell signed a new custody law that went into effect in January of this year.  The purpose of the new law is to modernize custody laws in the Commonwealth, which most practitioners agreed were long outdated, and to create a statewide method for making custody determinations.  The new law is designed to be gender neutral and makes clear that judges may not make a custody decision based on gender alone.  Judges are required to state their reasoning either orally on the record or in a written order so that the parties have a clear understanding of the decision-making process.

A major addition to the statute is the addition of sixteen factors courts are to consider when making a custody determination.  “What is in the best interest of the child” remains the standard that judges are to use; however, these new guidelines provide assistance for courts to follow.  Courts must consider the following relevant factors:

  • Which party will encourage and permit continuing contact with the other party;
  • Whether or not there is a history of domestic abuse involving any party or within the household of any party;
  • Parental duties performed by the parties on behalf of the child;
  • The need for stability and continuity in the child’s education, family and community life;
  • Availability of extended family;
  • The child’s relationship with siblings;
  • The well-reasoned preference of the child based on the child’s age and maturity;
  • Any attempt(s) of one party to turn the child against the other party;
  • 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 child-care arrangements;
  • The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another if there is no evidence of abuse by another party;
  • A 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; an
  • Any other issue the court determines to be relevant.

  Other notable aspects of the new law include: prescribing how a court can appoint a guardian ad litem for a child when the court deems it necessary, and giving some added rights to grandparents.  Finally, under the new law parties can file complaints for custody while still living together, something that was not permitted in all jurisdictions before.  The custody order will not go into effect until the parties separate.

  While most agree that Pennsylvania’s custody laws needed to be revised there has been some criticism of the new law’s reliance on the criminal background of the parties and the law’s examination of the backgrounds of individuals who may live with a party.   Some expressed concern that the list of offenses included is overly broad resulting in additional hearings at a time when court resources are already stretched to the limits.

  If you believe you have been treated unfairly in custody litigation, now may be a good time to revisit the issue.  Contact our office for more information.

 –  J. Ken Butera


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