Friday, November 21, 2014

The Custody Factors Series: Factor 14

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


Up next, Factor 14:

14.  The history of drug or alcohol abuse of 
a party or member of a party's household.

This is another factor that it is important to remember applies not only to each parent, but also to each member of the household, including family members, significant others and friends that reside in the home.  Simply having a history of drug or alcohol abuse will not be enough to cause a court to limit a parent’s custody time; however, if there is current evidence of current drug or alcohol abuse that may negatively impact the child, then the court certainly will take it into consideration.  What you deem a negative impact may not be enough for the court to decide to limit the other parent’s custody time.

The court may even order on-the-spot drug testing during the custody trial, but this testing is not as useful for allegations of alcohol abuse, unless the party shows up at court intoxicated.  Alcohol abuse is particularly difficult to prove to a court, because our ability to test a person for alcohol is extremely time-limited, unlike some other drugs that show up in a person’s system for many days or even weeks.  Obviously, if a person has history of driving under the influence or other alcohol-related arrests, the court will take consideration of the evidence.  That said, it is extremely important to remember that the court views this information in light of how it will impact the children.

Even if there is a history of drug or alcohol abuse, judges look to whether the parent is obtaining help and support for the problem.  Attendance at Alcoholics Anonymous or Narcotics Anonymous will be viewed in a positive light in this regard.  Although some people are afraid of seeking counseling or support due to the stigma, seeking help for these types of problems will actually work in the addictive parent’s favor.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, November 20, 2014

The Custody Factors Series: Factor 13

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


Up next, Factor 13:

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.

This factor is one of the more important factors to the long-term success of any custody order, because parents must be able to cooperate with each other in order to deal with the curve balls that life throws and effectively co-parent.  Courts recognize that custody litigation can bring out a high level of animosity and conflict between two parents.  That said, courts must look at whether the parents will be able to work together in the best interests of the child.  Even if you believe that the other parent will not cooperate, you should make every effort to show that you are able to cooperate.

From routine custody exchanges, to making sure that the child complete his daily homewok and long-term projects, to awareness of parent-teacher conferences and activities, courts are looking at the parents to determine whether they can potentially cooperate with each other.  To the extent that there is clear evidence that one parent specifically undermines the parents’ ability to co-parent, then the factor likely will weigh against that parent.  Yet, courts are eternally optimistic, despite past behavior, that parents will do what is right for their child and eventually cooperate in the best interests of the child.

If there is a history of conflict in your relationship with your child’s other parent, then it would be a great idea to propose or at least be open to co-parenting counseling.  A co-parenting counselor will help you and the other parent learn how to communicate better and help you navigate decision-making for your child.  These sessions can be invaluable to parents, especially in the early days of divided custody.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Wednesday, November 19, 2014

The Custody Factors Series: Factor 12

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


On to Factor 12:

12.  Each party's availability to care for the child or 
ability to make appropriate child-care arrangements.

This is another factor than can split a couple different ways, depending on the judge.  Many judges will simply say that each parent, in typical situations, at the very least has the “ability” to make appropriate child-care arrangements, and therefore, say that this factor does not weigh in either parent’s favor.  Other judges will look to one parent’s past role in primarily either caring for the child or in arranging for childcare, and will therefore place this factor in favor of that parent.  Obviously, there are some situations where both parents have been equally involved in the child’s care and arranging childcare and in those situations it really is a draw.

Other factual situations give rise to other concerns for the court.  Where one parent has a particularly demanding work schedule, the court will try to determine how much time that parent will actually be able to spend with the child.  In assessing the entire family and each parent’s work schedule, the court will try to determine what the best schedule is for the child.  That might mean that the parent who has a more demanding work schedule may have less physical custody time with the child.  This is not designed as a punishment to the hard-working parent, but instead is in recognition that it is likely better for the child to be with one parent than simply in childcare.

Also, a court will certainly listen to concerns that a parent simply does not have the good judgment to recognize that he or she needs to arrange childcare for the child.  This area can be particularly tricky when parents disagree on what appropriate care is for a child or especially a preteen.  One parent may be comfortable letting an older sibling watch the younger siblings, or letting a preteen stay at home alone after school for a couple hours.  How a court will feel about any of these “childcare” arrangements will greatly depend on a myriad of factors, including the safety of the neighborhood, the maturity of the child and the availability of an responsible adult if needed.

When moving forward in custody litigation, carefully think about the childcare arrangements that you intend to propose.  Try to identify concerns that the other parent or court may have with the situation and proactively create solutions to those issues.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Tuesday, November 18, 2014

The Custody Factors Series: Factor 11

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


Here’s, Factor 11:

11.  The proximity of the residences of the parties.

We’ve previously discussed briefly the importance of living close to the other parent.  This factor specifically calls out to parents to live close to each other so that children can maintain stability and continuity in their lives.  Additionally, reducing the burden of commuting on children is important.

A court understands that parents need to have the ability to move to a new home, but this factor highlights that courts believe that parents should keep their residential decisions child-focused.  Sometimes, it cannot be helped that parents do not live close together, either due to financial constraints or job commuting or childcare issues.  However, courts will look closely at evidence to try to ascertain why a parent chose to move to a particular location that is not close to the other parent.  If the court does not find reasonable and sufficient evidence to support the parent’s decision, the court may take a negative view of the parent’s actions.

Like all of the other factors, this is a highly, fact-specific inquiry by the court.  The courts will carefully look at the party’s evidence and testimony when trying to decide whether this factor is in favor or against either party.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Monday, November 17, 2014

The Custody Factors Series: Factor 10

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


Moving on to, Factor 10:

10.  Which party is more likely to attend to the daily physical, 
emotional, developmental, educational and special needs of the child.

This factor can go a couple different ways.  Sometimes the courts look at this factor as a draw between the parents, because each parent is capable of attending to the child’s needs, whether or not each parent typically has participated in the past in attending to the child’s needs.  For example, the court may say that this factor does not weigh in either parent’s favor, despite the fact that dad stays at home with the kids and provides for their daily needs, because mom is capable of providing for the kids’ needs.

In other cases, courts look at the parents’ past actions as indicative of future action.  For example, mother always make lunches and gives the child a bath and helps her do her homework; therefore, this favor weighs in favor of mother, even though father might be capable of performing the actions.

In other situations, courts will recognize that there are some circumstances where a particular parent is not capable, for whatever reason, of attending to the child’s daily needs.  Sometimes a parent is not capable of attending to a child’s needs because of an ongoing mental health or addiction issue.  Other times a parent is not capable of attending to a child’s needs because he or she will not recognize the child’s needs.  For example, sometimes one particular parent disputes a child’s special needs or other diagnosis, and therefore, feels that the child does not need therapy, medication, special services, etcetera.  In a case where the court feels that the evidence is clear that the child has special needs, that parent’s actions may be viewed negatively by the court.

In short, courts tend to vary on how they view this factor; therefore, it is important for parents to think about how they have met their child’s needs in the past and how they continue to plan to meet their child’s needs in the future.  Realize, however, that even if you believe that the other parent has never demonstrated the ability to be a good caretaker, more often than not a judge will overlook the past, knowing that the other parent can learn to be a parent.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Friday, November 14, 2014

The Custody Factors Series: Factor 9

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328 over the next few weeks.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


Up next, Factor 9:

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.

For most families, this factor is not likely to weigh in favor of one parent strongly over the other parent, because despite individual differences in how parents express their love to their children, they are capable of providing for their child’s emotional needs.  Not only are parents capable of providing this positive relationship, but they also do.  However, some parents, due to mental health issues or otherwise, are not able to identify their child’s emotional needs or are unable to provide for their child’s emotional needs.  This factor is important in those particular cases, because it allows the court to consider whether a particular parent is not in a position, for whatever reason, that allows him or her to provide the love and support that the child needs.

What this factor emphasizes is that the courts believe that no matter what, including custody litigation, is going on in parents’ lives, it is a parent’s responsibility to maintain a “loving, stable, consistent and nurturing relationship” with his or her child.  During custody litigation, it is easy for a parent to become focused herself and her needs and what she believes is best for the child; however, what this factor highlights is that it is more important for the parent to continue to focus on her relationship with her child and making sure that her child’s emotional needs are being properly addressed and that she is still fostering a positive relationship and bond with her child.  It is often easy for a parent to look at his child and say “Oh, he is doing fine,” because children are resilient and often hold back their emotions, but this factor is a reminder that a parent must always focus on his relationship with the child and make sure that he is attuned to the child’s emotional needs.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, November 13, 2014

The Custody Factors Series: Factor 8

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328 over the next few weeks.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


Next in our series, Factor 8:

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.

While the court chooses the importance and weight of each factor, most judges take this factor most seriously.  Cooperating with the other parent and encouraging your child’s relationship with the other parent should be a priority, both because it will benefit your case and benefit your child.

Our courts believe that in the vast majority of situations, outside of abuse, neglect, violence or other mental health issues that negatively impact a child, it is in a child’s best interests to have a good relationship with each parent.  That is part of the reason that our courts tend to favor shared physical custody arrangements whenever possible.  

Therefore, courts look down upon parental behavior that degrades and alienates the other parent.  A parent can either consciously or subconsciously try to turn their child against the other parent in a myriad of ways, including negative talk and name-calling.  Courts also look negatively upon a parent sharing information with a child that the child does not need to know, such as information about pending divorce, custody or support litigation or alleged adultery or other failings of the other parent.  This information should be viewed as “adult-only” information.  A child, rightfully so, views each parent in esteem, and damaging this view is not in the best interests of the child.  Additionally, courts look negatively upon sabotaging behaviors, such as being late for pick-ups or drops-offs, failing to tell a parent about a child’s activities or health care information, or otherwise trying to drive a wedge between the child and the other parent.

No matter how much anger and frustration you may rightfully have against the other parent, you must try to remember that it is likely in your child’s best interests for you to tuck away that venom in front of the child.  A child identifies with each parent, and hearing a parent bemoan the other parent can make a child question whether the parent resents or dislikes something about him or her.  Moreover, children still need to see their parents as a united front whenever possible.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Wednesday, November 12, 2014

The Custody Factors Series: Factor 7

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328 over the next few weeks.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.

Next up Factor 7:


7.  The well-reasoned preference of the child, 
based on the child's maturity and judgment.


This factor typically plays a limited role in a court’s determination for various reasons; yet, a court often would like to hear from the children during the custody trial.  (See our blog post on the judicial interview of a child for more information about this process).  For young children, perhaps those younger than 10 or 12, the court simply would like to hear the child’s point of view, but the child’s desires will not necessarily impact the court’s decision.  That said, it is not simply an age determination.  The child’s maturity also plays an important role.  There are often teenagers who do not have the maturity necessary to make their preference an important factor in a court’s custody determination.  Likewise, there are some younger children that may have maturity beyond their years that will sway a judge.


Therefore, it is important for parents to remember that simply because your child tells you that he or she wants to live with you all of the time, does not mean that the judge will be persuaded by your child’s statements, and that is assuming that your child actually makes those claims in front of the judge.  Children, especially younger children, can arrive at their conclusions for all sorts of nonsensical reasons.  Children could want to live with one parent over the other because they like the kids in their neighborhood better, there are more toys to play with, they like the food one parent serves better or they get to stay up later at night.  These reasons, which the court tries to pick apart, are not reasons that will influence a court’s custody determination.  The court will only take into account a “well-reasoned preference” if the child expresses appropriate “maturity and judgment.”


On the other hand, if a court feels that a parent improperly and forcefully influenced a child to take one position over another, that type of interference could work against the parent.  Children should not be compelled to voice a preference for one parent over the other.  Many children, when confronted with the question from the judge, insist that they have no preference.  

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Tuesday, November 11, 2014

The Custody Factors Series: Factor 6

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328 over the next few weeks.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


Next up Factor 6:


6.  The child's sibling relationships.


Most parents recognize the importance of sibling relationships, as it is easy to see the unique bond between siblings, even siblings that bicker more often than not.  This factor not only applies to immediate siblings but also to half-siblings.  In other words, courts recognize that strong bonds exist not simply between the children of the same parents, but also between the children of the relationship at issue and the children of prior or current relationships that all live in the same house.  That said, it can be difficult when siblings express a desire for different custody arrangements or parents believe that they want different things.


Whenever possible and whenever in the best interests of the children, courts will do everything that they can to keep siblings together and on the same custody schedule.  That means that there may be some adjustments and compromises on the schedule in recognition of one child’s needs in balance with another child’s needs.  It is not, however, possible to always keep siblings together with their half-siblings, and the half-siblings/children of one parent are not more important than the half-siblings/children of the other parent.


This factor can becomes particularly important in the context of relocation hearings, because courts are concerned about separating children from their half-siblings.  Therefore, when you think about a custody schedule, particularly if you would like to relocate, you should determine how the proposed schedule will impact your children’s sibling relationships.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns. LLC.

Monday, November 10, 2014

Gifts are great ---- until you get a divorce

Married couples fortunate enough to receive gifts or inheritances (usually from family members) during their marriage often reap the benefits jointly: a down payment for a house, an unexpected nest egg, an increased standard of living . . .

However, if the marriage breaks down, people often want to recoup those gifts.  In a common example, parents who provided funds for a down payment on a home all of a sudden say it was a loan and they want the monies paid back.

Divorcing spouses then bicker over the intent of the gift -- was it meant for one of the parties or both?  Today's Wall Street Journal features a great article in its Wealth Management section: The Battle over Gifts in a Divorce. 

The bottomline:  Unless you want part or all of your gift to go to the recipient's ex spouse, document your gift, make clear it is for one spouse and not the other, make sure the spouses do not co-mingle and consider keeping the monies in trust.  Individual state laws differ and people's actions after the gift (such as co-mingling a gift with joint assets, can affect how that gift will be treated in divorce.


The Custody Factors Series: Factor 5

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328 over the next few weeks.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


Here’s Factor 5:

5.  The availability of extended family.

When courts try to make a determination of what is in a child’s best interests during a custody dispute, they absolutely recognize that extended family members are an important part of a child’s life.  Often grandparents or aunts and uncles provide childcare for young children in lieu of daycare or even help with dropping off and picking up children to and from school.  Even in families where the extended family members do not provide daily care for the child, they are often play extremely important roles in the child’s life.  As discussed in Custody Factor 4, stability and continuity are important for children, and the continued access to extended family members is an important part of this formula.

Additionally, courts recognize that when a family is no longer intact, and each parent is parenting on their own, there are times that the parent will need the support of extended family in order to appropriately care and provide for the child.  Extended family members can become a vital safety net for single parents.  Therefore, courts will carefully consider evidence and testimony regarding the availability of extended family.

This does not mean that a parent will be at a disadvantage during the custody litigation if they do not have extended family in the immediate area, because it is simply one of many factors.  However, courts do want to keep in mind the important roles that extended family members play in children’s lives.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Friday, November 07, 2014

The Custody Factors Series: Factor 4

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328 over the next few weeks.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


Up next, Factor 4:

4.  The need for stability and continuity in the 
child's education, family life and community life.

Children are in a better position to thrive and prosper when they are in stable environments that do not fluctuate sporadically and frequently.  Going through a divorce or even changes in custody arrangements are difficult for children, even when necessary.  Therefore, whenever possible, courts try to create situations that bolster stability and continuity within a child’s life, knowing that divorced and separated houses will be inherently unstable for the child.

When assessing stability and continuity, courts look at three important aspects of children’s lives: school, home and community.  These three prongs make up the environments in which children live.  Ideally, parents need to live relatively close to each other, even if they are living independent lives, so that the children can have stability and continuity.  For example, if one parent chooses to move far away, the child may be forced to change schools or at least have a very long commute from one parent’s house.  A change in school, on top of custody and divorce challenges, can create great instability for children.  It means a new environment, new friends, new activities, new teachers and a whole lot of change.  

Courts understand that along with divorce or other changes in parental relationships, one parent may have no choice but to move to a different area for financial reasons or for additional extended family support.  That said, courts want to create an arrangement, whenever possible, that provides stability and continuity.

Therefore, if you need to move to a new home or you think that your child should attend a different school or should stop participating in certain activities, you should ask yourself a few questions.  How long will it take to get from my house to the other parent’s house?  Will my child be able to attend the same school?  How long will it take my child to get to school from my house and the other parent’s house?  Will my child have to wake up earlier each morning?  Will my child be able to continue participating in activities important to her?  Why should my child stop participating in a particular activity?  Will I still be able to arrange for my child to play with his established groups of friends?  Are there children my child’s age in our new neighborhood?  If necessary, who will provide before or after care for my child?

When considering a move or change, you need to think the way the court thinks: What is best for your child?  What is best for you as an adult individual and what is best for your child is not always the same thing.  The court puts your needs and priorities second to your child’s best interests.  Therefore, think carefully about not simply what you want for your child, but what truly would be best for him or her.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, November 06, 2014

The Custody Factors Series: Factor 3

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328 over the next few weeks.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


Here’s Factor 3:

3.  The parental duties performed by each party on behalf of the child.

Under this factor, the court will consider the tasks that each parent or party performs on behalf of the child.  For example, the court will look at which parent typically schedules and takes the child to doctors’ appointment or dance lessons.  The court is looking for evidence and testimony regarding which parent participates in the child’s education through helping with homework and attending parent-teacher conferences.  Additionally, things like which parent typically prepares meals for the child or gives them a bath may be relevant to the court.

Courts understand that parents take on different roles and responsibilities for the child due to various factors, including work schedules, interests and abilities.  That said, the court uses this factor to look at a few things, including a parent’s desire to be involved with the child and the parent’s availability to the child.  A court is not going to “punish” a parent with limited custody simply because that parent has a demanding work schedule and the other parent stays at home.  However, the court will use that information when proposing a custody schedule that is best for each member of the family.

To prepare to present yourself in the best light possible, strive to be involved in each aspect of your child’s life.  Contact the teachers.  Know the coaches.  Check homework.  Attend doctor and dentist appointments.  Be involved in shopping for your child’s clothes and other items.  In a separated family, relying on the other parent to take over these parental duties will remove yourself from the parenting process and play against you in court. 

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC. 

Wednesday, November 05, 2014

The Custody Factors Series: Factor 2

As we noted on our blog on November 3, 2014, we will be discussing each of the sixteen Pennsylvania custody factors under 23 Pa.C.S.A. § 5328 over the next few weeks.  No one of these factors has been found to be more important than another with perhaps the exception of factors that are related to safety.  Therefore, the court must review each and every factor when making a custody determination.  Some factors are given more weight by a judge, depending on the individual.  This series is designed to give you familiarity with the law, but not to substitute for legal advice.  An experienced attorney can give you specific advice on your particular case.


Here’s Factor 2:

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.

This custody factor is one that judges will give greater priority when weighing all of the factors and making a custody decision, because it is deemed a “safety” factor.  Judges want to and must make decisions that they believe are in the best interests of the children, and making sure that the children will be safe is integral to making this decision.

To the extent that there is a current or past Protection from Abuse (“PFA”) Order where one of the parties is the aggressor, particularly if the other party and/or the child is the protected party, then the court will absolutely take that information into account.  If the PFA is active at the time of the decision-making and one parent is a protected party, then the custody rights of the other party may be restricted.  The court will want to hear plentiful evidence to determine whether it believes that the child will be safe in the presence of the parent subject to the PFA.  At one end of the scale, the court may determine the parent subject to the PFA poses no threat to the child, and the parent may have unrestricted physical custody according to a schedule and exchange rules that still provide protection to the protected parent.  At the other end of the scale, the court may determine that parent subject to the PFA should have no contact with the child.  In between these two extremes are many other scenarios, which include the possibility of supervised physical custody.

There does not have to be a history of PFA orders for this factor to be relevant.  If either party feels that the other parent does not have the ability to properly provide “adequate physical safeguards and supervision” to the child, then this information will be considered by the court.  For example, if there are concerns about a parent’s living arrangements or ability to be physically present for the child due to a demanding work schedule, then the court would consider those issues pursuant to this factor.

Also, it is important for you to remember that this factor does not apply simply to parents.  It applies to all “member[s] of the party’s household.”  That means that if you are remarried, live with a significant other or live with friends or relatives, then each and every person with whom you live will be considered by the court.  Most counties require you to complete an affidavit prior to any custody litigation where you disclose your criminal history and the criminal history of any person that lives with you.  Most of the affidavits have an extensive list of specific criminal history that must be disclosed.  Additionally, PFA information must be disclosed.

If you are living with family members or friends, you must ask them for this information.  You cannot simply say that you did not know, and many people have criminal histories, often to your surprise.  Simply because you or a member of your household has a criminal history, does not mean that you will not receive custody of your child; however, the court is required by law to consider this information.

Again, you must remember that the court’s ultimate goal is to protect the child’s best interests, and making sure that the child and each of the child’s parents will be safe and secure is an important goal of the court.

Understand that even if that party committed abuse of some kind, a court could still give that person some type of custody, if the court believes that the child would be safe.  The courts can also put safeguards in place, such as counseling, shorter visits, supervision or even a requirement for anger management classes or in some other type of training.

Finally, what you, as a parent, consider abuse may not be the same as the court’s definition.  Parents obviously want to protect their children, at all costs, wanting to be better safe than sorry.  On the other hand, the court will strive to provide both parents with access to the child.


Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.