New Developments in Child Custody Laws

New Developments in Child Custody Laws

Since 1813, Pennsylvania courts have determined child custody arraignments by a standard known as “Best Interest of the Child.”  This standard gave courts the freedom to look at each case individually to determine what would be the best living conditions for that specific child.  However, this vague standard actually created a debate so long-winded and longstanding that it would be almost impossible to reiterate it.  What considerations should a court make?  Should those considerations be child-specific?  Policy-specific?  Should the court look at school performance or geographic distance?  What about moral and emotional issues?

Finally, in November 2010, Governor Ed Rendell signed a bill that replaced Pennsylvania’s Best Interest statutes with more specific terms.  The new statute includes provisions for relocation of cases, requires proposed parenting plans in contested child custody proceedings, specific guidelines for all cases, and a basis to claim counsel fees in custody matters.

What are the Old Child Custody Laws?

The old Child Custody laws could be found in Title 23 of the Pennsylvania Consolidate Statutes.  Here, one could find four basic presumptions that provided courts a starting point in each custody case.

First, 23 Pa.C.S.A. 5301 stated that “when in the best interests of the child, it is the public policy of this Commonwealth, to assure a reasonable and continuing contact of the child with both parents after separation or dissolution of the marriage and the sharing of the rights and responsibilities of the child rearing by both parents.”  This is the “status quo” rule.

Second, 23 Pa.C.S.A. 5327 stated the presumption that “custody should be awarded to a particular parent.”

Third, 23 Pa.C.S.A. 5328(b) provided the presumption that a party’s gender shall create a preference in rendering a custody award. This means a father would be more likely to be awarded custody of a male child.

Fourth is the rebuttable presumption that a parent’s right to custody of his/her child always superseded that of a third-party.  23 Pa.C.S.A. 5327(b).

What Do the New Laws Change?

Under the new Child Custody laws, the court is provided with a blank slate when determining the child custody arraignment.  In other words, the presumptions listed above no longer exist.

Now, the new statutes direct the court to examine certain best-interest factors when creating a child custody award.  23 Pa.C.S.A. 5328 states, “[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 [16 specific statutory factors].”  Furthermore, the new statutes require the court to explain its reasons for its custody determinations “on the record in open court” or “in a written opinion or order.”  23 Pa.C.S.A. 5323(d).

Are These Changes a Good Thing?

For the most part, yes, these changes should help provide attorneys and judges with a clearer path when advocating for a certain custody arraignment.  However, there may be some debate as to whether the court should be mandated to consider specific factors.  On the other hand, while I did not list out each of the 16 factors, a quick review shows that these are all factors most courts already considered in most cases.  The difference is courts have to consider each factor now.

Furthermore, factor 16 is “any other relevant factor.”  This will provide attorneys and courts with some wiggle room when advocating for a client.  This will allow courts to consider factors specific to that individual case, while also requiring the court to stay within the other 15 factors.

What Impact Will This Have?

As stated above these new statutes provide a blank slate for each court to consider each case.  Because of the required factors, we should see an elimination of personal bias and standardized results.  The factors chosen are those that history has shown to be the most useful.  Therefore, they should lead to more well reasoned child custody arraignments.

Finally, the new statutes should lead to more child-centric custody determinations, which will better protect the innocent child from battling parents during separations and relationship dissolution.

If you are dealing with a child custody issue of your own, give me a call at 412-209-0657 and ask for Matthew Becker.  I will meet with you and help determine what is the best course of action.

About the Author

Matthew E. BeckerI am a Pittsburgh Trial Attorney. I concentrate my practice in Criminal Defense and Civil LitigationView all posts by Matthew E. Becker →