Pennsylvania has always used the “best interest of the child” test as the guiding principle in making custody determinations. In 2011, the custody laws in Pennsylvania were changed. Although the courts use the “best interest of the child” test, the new statute, and rules of procedure which became effective in 2013, require the court to consider 15 factors when awarding custody, in addition to any relevant factor. Furthermore, the presumption that “custody should be awarded to a particular parent” is expressly prohibited.
The 15 factors enumerated in Section 5328 include which parent is more likely to encourage a relationship with the other parent, the past and present abuse committed by a party or a member of the party’s household, the need for stability and continuity in the child’s education and family life, the availability of extended family, the child’s sibling relationships, the parental duties performed by each party, the well-reasoned preference of the child, the attempts of a parent to turn the child against the other parent, which party is more likely to maintain stability and consistency with the child, which parent is more likely to attend to the child’s physical, emotional, educational and special needs, the proximity of the residences, the availability of appropriate child care arrangements, the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another, the history of drug or alcohol abuse of a party or a member of the party’s household and the mental and physical condition of a party or member of a party’s household.
Section 5323 provides that the court must detail the reasons for its decision either on the record in open court or in a written opinion. Therefore, the court must go through each factor that it considered and explain why it decided as it did.
The 2011 law defines several types of custody:
The right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions. Shared legal custody means that more than one party has the right to make major decisions for the child; Sole legal custody means that only one party has the right to make these decisions.
The actual physical possession of the child. Primary physical custody means the right to assume physical custody of the child for the majority of the time; Partial physical custody means the right to assume physical custody of the child for less than a majority of the time, and Sole physical custody means one party has physical custody all of the time. Supervised physical custody means custodial time during which an agency or adult designated by the court or agreed upon by the parties monitors the visit with the child.
The Rules of Civil Procedure pertaining to custody now require a party commencing an action or filing a petition to modify an existing custody order to verify any criminal or abuse history of the party and all members of the party’s household. In addition to violent crimes and domestic abuse, the verification also includes any convictions for DUI or possession of a controlled substance, although ARD or similar diversionary programs are not considered.
Another significant change to the custody law and revised rules of procedure pertains to relocation. A relocation is defined as any move that substantially interferes with the custodial rights of the other parent. Section 5337 sets forth the specific procedures to be followed in the event of a proposed relocation. First, the party seeking relocation is required to give 60 days’ notice to the other parent by certified mail. The notice of relocation must include as much information as possible about the relocation, including the new address, names and ages of individuals who will be residing there, name of new school district and school, and date of proposed relocation. The notice must include a counter-affidavit giving the other party the opportunity to object to the relocation. If the other parent objects, an expedited hearing will be scheduled prior to the relocation.
The more involved the non-relocating parent is in raising the child, the more difficult it can be to obtain the court’s approval for the relocation. As with all child custody and visitation matters, the court’s ultimate standard will be “the best interest of the child”. The factors the court is required to consider in determining whether to grant a proposed relocation are set forth in Section 5337 and include the nature, quality and extent of the child’s involvement with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life, the age of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, the feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, the child’s preference, whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other parent, whether the relocation will enhance the general quality of life for the party seeking the relocation, whether the relocation will enhance the general quality of life for the child, the reasons and motivation of each party for seeking or opposing the relocation, and the present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.