Family Law

Shared Physical Custody - Statutory Factors and Practical Considerations

By Fox Rothschild

At the core of Pennsylvania custody law is the concept that courts should seek to promote the best interests of the children involved. In the past, courts have been reluctant to grant equally-shared physical custody of a child in an effort to provide a more constant, regular home life for minor children. Recent trends indicate, however, that Pennsylvania courts are becoming more likely to grant shared and 50/50 physical custody as a method of adapting to the realities of modern families in which both parents may be working outside the home.

The factors that the court must consider in any custody case are set forth in the Divorce Code (at 23 Pa.C.S.A. §5303) and are as follows:

1. the child’s preference;
2. all factors which legitimately impact a child’s physical, intellectual and emotional well-being;
3. which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the child and the other parent;
4. each parent’s qualities;
5. the qualities of adult household members living with the parent;
6. past abuse or violent conduct; and
7. criminal convictions.

Additionally, the following are some of the critical factors revealed in Pennsylvania reported cases dealing with requests for 50/50 shared physical custody:

1. The existing division of child care responsibilities between the parents and whether one parent has been the primary caretaker;
2. The nature and extent of the child’s bond with each parent;
3. The ability of the parties to co-parent with one another;
4. The proximity of the parents’ homes (and if they live in the same school district);
5. The benefits to the child from having day-to-day contact with both parents;
6. How much time the child spends in day care (before and/or after school care);
7. The child’s age;
8. The parties’ respective work schedules;
9. Other members of each parent’s household; and
10. Whether the child has any special needs.

The foregoing list is certainly not exhaustive, but highlights the child-centered inquiry, as opposed to fairness to the parents for custody time. As each custody case is judged on its own set of facts, it is vital to give a court the specific facts of each situation in the context of what is best for the children.

Full post as published by Pennsylvania Family Law on November 01, 2007 (boomark / email).