As a Pittsburgh family lawyer, I'm frequently asked by fathers if they have a chance of getting custody of their children. Many fathers believe that the court will automatically favor their child's mother in a custody dispute. A generation ago, this fear would not have been unfounded. Until 1977, Pennsylvania law applied the "tender years" doctrine, which presumed that it was in the best interest of young children to remain in the custody of their mothers.
In 1977, the Pennsylvania Supreme Court found that the tender years doctrine was "unconstitutionally stereotypic" and held that courts could no longer favor the mother based on her sex. In practice, however, courts still favored mothers in custody rulings.
In 2011, a new custody statute codified the factors that a court must consider in making a custody ruling. These factors are gender-neutral and are designed, in part, to eliminate rulings based on unconstitutional considerations. To that end, the judge must explain on the court record or in writing how his decision satisfies each of the factors.
The factors a judge must consider in fashioning a custody order are:
(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.
(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.
Any parent fighting for custody must be mindful of these factors. If you are seeking custody of your children, make sure you have a family lawyer fighting on your side. Custody actions can be lengthy and stressful. A parent fighting alone can easily become overwhelmed. Make sure you understand the law before you go into court. Contact one of our experienced attorneys who can help you fight for your rights and for your family.