It used to be that when two natural parents were equally fit, courts would give positive consideration to the parent who had been the primary caretaker of the children, tipping the scales in favor of that parent. This was known as the “primary caretaker doctrine.” However, since the Pennsylvania Custody Act was revised in 2011, the Primary Caretaker Doctrine, is not given as much weight.
In MJM v. MLG, 63 A.2d 331 (Pa.Super. 2013), the Pennsylvania Superior Court held that the considerations which the primary caretaker doctrine sought to address were interwoven into two (2) of the sixteen (16) best interest factors set forth in 23 Pa.C.S. §5328. The primary caretaker doctrine is no longer given weighted consideration over the other best interest factors. Weighted consideration is only given to those factors which affect the safety of the child. More importantly, there shall be no presumption that custody should be awarded to a particular parent based on gender.
The following factors, commonly referred to as the “Best Interest Factors,” are considered by the court when awarding custody:
- Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
- 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.
- The parental duties performed by each party on behalf of the child.
- The need for stability and continuity in the child’s education, family life and community life.
- The availability of extended family.
- The child’s sibling relationships.
- The well-reasoned preference of the child, based on the child’s maturity and judgment.
- 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.
- Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
- Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
- The proximity of the residences of the parties.
- Each party’s availability to care for the child or ability to make appropriate childcare arrangements.
- 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.
- 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.
Parents should familiarize themselves with these factors and adjust their behavior accordingly. In a custody trial, a successful litigant must convince the court that the best interest factors weigh in his or her favor. Courts consider it to be in children’s best interest to have as many loving influences as possible, available to them. Therefore, a conscientious parent should insulate children from parental conflict, and encourage children to have a relationship with the other parent. If possible, the best option is to enter into a custody agreement with the other parent that maximizes each parent’s time with the children and accommodates the particular needs of their family.
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