Many people will default to “the middle” when faced with a difficult decision. While moderation may seem appealing, it may not always be the most logical approach. If someone steals a dozen eggs from a grocery store, it is not justice for the thief to return half the eggs and be permitted to keep the other half. Although child custody decisions do not always involve wrongdoing, it is nevertheless a tempting but misguided assumption that 50/50 custody is always correct even in the absence of wrongful conduct by one parent.
Pennsylvania’s House of Representatives has recently rejected a bill amendment that would create a presumption that 50/50 custody is in the best interest of the child as long as both pa
rents are fit to provide care. Moreover, the bill would have eliminated the 13 child custody factors that family court judges are to weigh and instead replace them with the following three factors:
considerations of past abuse by a parent;
level of conflict between the parents, and
willingness and ability to cooperate.
This bill amendment was proposed by state Rep. Jamie Flick. Rep. Flick ran for public office after he was only awarded child custody every other weekend following a family court hearing that was allegedly only a few minutes long. Similar bills have passed in Kentucky, South Dakota, Florida, and Missouri.
Pennsylvania Factors for Child Custody
The proposed amendment may be a solution in search of a problem. The primary reason to have 50/50 custody is to ensure fairness for the parents. Unfortunately, many family courts still assume that mothers should be the primary caretakers. This historical assumption has both hindered women in the workplace and men in child-rearing.
However, current Pennsylvania law requires that the court keep its decision gender neutral – no party shall receive preference based upon gender. This benefit of 50/50 custody has already been directly addressed by the state’s requirement that custody decisions be made regardless of the gender of the parents.
The other argument for 50/50 custody is that it should be presumed to be in the child’s best interests to have equal time with both parents. However, there may be instances where one parent is better for the child. This does not mean that the other parent did anything wrong, but a particular child’s needs may be better suited by spending more time with one parent.
For instance, a pre-teen who enjoys softball may want to spend more time with her father because her father is a coach in the local baseball league. Conversely, a child may be better off spending more time with the mother because she lives closer to the school, whereas the father is always traveling.
Such decisions should be made on a case-by-case basis based on what the child needs, or wants if they are mature enough, rather than a strict 50/50 rule. This isn’t to say that the decision
should be completely arbitrary. Pennsylvania has 13 current factors for family law judges to consider when making custody decisions. These 13 factors already include Rep. Flick’s proposed 3 factors and many more:
Which party is more likely to ensure the safety of the child.
The present and past abuse committed by a party or member of the party’s household, which may include past or current protection from abuse or sexual violence protection orders where there has been a finding of abuse.
Violent or assaultive behavior committed by a party.
The level of cooperation and conflict between the parties.
A willingness and ability of a party to prioritize the needs of the child by providing appropriate care, stability and continuity for the child, considering the parental duties performed by the party on behalf of the child in the past and whether the party is willing and able to perform the duties in the future, and attend to the daily physical, emotional, developmental, educational and special needs of the child.
The need for stability and continuity in the child’s education, family life, and community life, except if changes are necessary to protect the safety of the child or a party.
The child’s sibling and other familial relationships.
The well-reasoned preference of the child, based on the child’s developmental stage, maturity, and judgment.
The proximity of the residences of the parties.
Each party’s employment schedule and availability to care for the child or ability to make appropriate child-care arrangements.
The 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.
Any other relevant factor.
Many of these factors overlap with one another. Concerns regarding safety, abuse, violent behavior, and drugs and alcohol could all fit into “considerations of past abuse by a parent” if that category remains vague.
However, there are other factors that should be considered that Flick’s proposed factors simply don’t take into account. The preference of the child and stability of the household don’tneatly fit into abuse, conflict, or cooperation, but they are still factors that a family law judge could fairly take into consideration.
Do I Need a Lawyer for My Family Law Issue?
If you have difficulty seeing your child as the holidays approach, you should contact a family lawyer today. A skilled family lawyer can answer your questions, provide guidance on your case, and represent your best interests in court.
