Child Custody Law Made Easy
This page starts with letting you know that the child custody law requires judges to start with giving your child equal time with both parents. If your judge moves away from 50/50, then what rules must he follow. If your judge makes a mistake, then you appeal. Finally, parents who can agree, can take the short cut by making a parenting agreement.
Do you wonder how family court judges are supposed to make their child custody decisions? Do you wonder what factors they are supposed to considering when deciding on how much time your child gets to enjoy with each parent?
Well, most of these questions are supposed to be easy to read in this chapter. Most states have similar chapters. So what we describe here will apply to most states. But if yours doesn't, then stand up to make the change. Ask us to help you make the change.
Most Important Rule Is Start With 50/50 Time For Both Parents
Judges are not supposed to play favorites when the judge sees both parents for the first time and has no other history with them or about them. What this means is that the judge is supposed to give half of your child's time for each parent. Equality. Unfortunately, this still doesn't happen so talk with your lawyer or talk with us. Know what you're doing and know the law before you go talk with a judge for the first time.
The child custody law is also clear that when a child has only one parent (very sad), then that parent has all the rights over any one else claiming custody. But the court may play games by using the last sentence in 5327(b), below, so be careful to know what you're up against before going in with a third party. Come talk with us.
Finally, in the third situation where the child has no parents (very sad), then again there's no favorites.
Here is the exact language they use ...
§ 5327. Presumption in cases concerning primary physical custody.
(a) Between parents.--In any action regarding the custody of the child between the parents of the child, there shall be no presumption that custody should be awarded to a particular parent.
(b) Between a parent and third party.--In any action regarding the custody of the child between a parent of the child and a nonparent, there shall be a presumption that custody shall be awarded to the parent. The presumption in favor of the parent may be rebutted by clear and convincing evidence.
(c) Between third parties.--In any action regarding the custody of the child between a nonparent and another nonparent, there shall be no presumption that custody should be awarded to a particular party.
How Family Judges Are Supposed Divide Child's Time Between Parents
Now that you know the most important rule (to start with 50/50 time with both parents), what are the reasons a judge would not give 50/50 and how are they supposed to make the decision? This next rule lists sixteen factors that judges must weigh when they don't give 50/50 from the beginning. So be sure you know these before going into court. Be sure you know how to make the judge stick to the no presumption rule.
During the hearing, be sure you get on the record (on the transcript) exactly and specifically why the judge is not giving your child 50/50 time with both parents. Every child deserves both parents. After reading the list below, if there's any point you think might be troubling during the hearing, talk with us or check other past cases like yours.
The tricky thing with this list is that it's just a list of short phrases. There's not much specific information in the law. So what that means is that the judge gets a lot of sway in deciding how the judge wants to interpret any one of these sixteen factors. Some times that's bad for the child because after all, judges are human, and humans err. So do your homework to be sure there's no room for error, to protect your child from not having the right amount of time with you.
Here is the exact language they use ...
§ 5328. Factors to consider when awarding custody.
(a) Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(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.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the child's maturity and judgment.
(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.
(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.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to make appropriate child-care arrangements.
(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.
(14) The history of drug or alcohol abuse of a party or member of a party's household.
(15) The mental and physical condition of a party or member of a party's household.
(16) Any other relevant factor.
(b) Gender neutral.--In making a determination under subsection (a), no party shall receive preference based upon gender in any award granted under this chapter.
(c) Grandparents and great-grandparents.--
(1) In ordering partial physical custody or supervised physical custody to a party who has standing under section 5325(1) or (2) (relating to standing for partial physical custody and supervised physical custody), the court shall consider the following:
(i) the amount of personal contact between the child and the party prior to the filing of the action;
(ii) whether the award interferes with any parent-child relationship; and
(iii) whether the award is in the best interest of the child.
(2) In ordering partial physical custody or supervised physical custody to a parent's parent or grandparent who has standing under section 5325(3), the court shall consider whether the award:
(i) interferes with any parent-child relationship; and
(ii) is in the best interest of the child.
(Dec. 18, 2013, P.L.1167, No.107, eff. Jan. 1, 2014)
What To Do If Your Judge Doesn't Follow The Law?
If your judge doesn't follow these rules, then you can appeal that county judge's decision to the Superior Court, which is also known as an appellate court. It's not hard but it does require some careful thinking with some standards to follow. We can help you.
If your judge doesn't follow any one of these, the first place you should check right away is past cases. Find out what instructions the appellate court gave to the county court. Find cases as close to yours as possible. Then come talk with with us.
Can Both Parents Agree On a Parenting Plan?
Finally, section 5331 of this child custody law has a parenting plan for both parents. If both parents can agree to most of what's in this plan, you may not even need to waste your time with the court. This section has a 50/50 custody so both parents can discuss how to co-parent and how to set a good co-parenting schedule. Then you both simply agree to it by signing it. That becomes your parenting agreement. If you both want to, you can even ask the court to just make it official as it is. Just ask any one at the court like your judges secretary or the director of prothonotary or the judge's law clerk. They'll be so happy to make it official for you. It's that easy.
Have we make the custody law easy for you? Let us know.