Custody of children is one of the most emotional and litigated areas in family law. Money and property may come and go, but we all recognize that enjoying time with our children is precious, priceless, and cannot be replaced. It is therefore no surprise that this gift, being with our children, is so often the subject of great debate and unfortunately, great disagreement.
Counties differ across the state, and certainly across state jurisdictions, as to the process by which child custody decisions are determined. The broad, well recognized, standard by which all custody determinations are made, is the over utilized phrase…”the best interest of the chilldren”. Of course, this should determination custodial arrangements. The difficult reality of determining what lies in the best interest of a child arises from the fact that the differing parties have conflicting views of what promotes those best interests.
Parents and / or guardians are always encouraged to reach consensus on custodial arrangements, if the parties are not living together. There are certainly methods by which parties can seek to reach agreement. Mediation among differing parties often helps. This is a process that parties might utilize, in an attempt to reach agreement through the help of a mediator, i.e. one who is trained in and skilled at helping to facilitate agreement among parties of different views. Typically, the mediator should be familiar with the legal custody process and the standards therein, as well as being fluent in non judgmental mediation skills. One interesting item that often occurs in the mediation process is the realization that parties agree on a great deal more than even they had thought possible, prior to the process beginning. Thus, the beauty and somewhat frequent success of the mediation process.
Many choose not to undertake the mediation process. The court process is the most likely substitute. Most county courts employ some form of court connected conciliation process. The court employed conciliatior in some counties has power to enter a recommended Order (which might become a Court Order if not objected to or a hearing properly requested by a party), while in other counties the conciliator can only strive to help parties reach agreement on custodial terms. In many counties, opposing parties, as part of the process, are also required to attend some form of seminar to educate them on the effect of a split family of children and how effectively to work together to lessen the burden on children of a family that is, through no fault of children, not intact.
Ultimately, if nhethero agreement can be crafted by the parties who care most about the children, then, a court hearing or hearings will occur so that a person called a judge, who does not know and does not love the children, will decide the custody issues involved. What are the factors involved that a Court will focus upon? There are many, and they include, but are not limited to these:
Who is the primary nurturing caretaker, in anyone?
Who is employed, and what are the work hours?
The age, health, patience, caretaking style, lifestyle, and living conditions of each.
The support system around each party.
The age, health, education, special needs, and personal needs of a child.
The financial condition of each party.
The support system of each party, including family in the geographic area.
The likelihood of one promoting the child’s relationship with the other parent.
Prior custody agreements and Orders and each party’s history of honoring same.
The feelings and opinion of the child. The older the child, and the more mature, the more weight a Court attaches to the desires of a child.
Any criminal record of a party. With certain arrests and convictions, in Pennsylvania, a Court will appoint a qualified evaluator to perform an evaluation of the party with the criminal record and will make recommendations to the Court.
The past appropriateness of the party with the child (i.e. not communicating with the child negatively about the other party, not using the child as a messenger, etc.)
There are numerous other case specific issues addressed by Courts, regularly in custody matters.
In addition, as the definition of “family” expands, and as assisted reproductive technology methods advance the methods by which children are created, the issues facing the Courts are ever-expanding. For instance…
What are the rights of grandparents in custody matters? Who has standing to seek custody?
What if a same sex couple utilizes donor sperm and creates a child, where one of the women is the biological parent and the other is not genetically connected the resulting child, and then they separate? Who, if either, has superior rights to custody? Does the non – genetically connected “parent” have standing to seek custody? Are their rights equal? What about the grandparents in this situation?
What if a husband and wife create an embryo and have it cryo-preserved, and then they divorce? Who, if anyone, has the right to “custody” of the embryo? Can anyone have custody? Is it merely property? What if the estranged wife has the embryo implanted after separation and carries it to term, producing a child, against the wishes of the former husband? Is he liable for support?
When is a custody agreement sufficient in a same sex couple arrangement? Should adoption always be considered so that both parties are legally the parents?
These are just a sampling of the growing nature of issues facing parties and Courts, in an effort to resolve and effectuate the intentions of parties and provide for the best interests of children. As they are detailed, case specific, and often at the cutting edge of family law, it is highly recommended and necessary that one consult with an attorney who is skilled and knowledgable about all the issues which are relevant to one’s specific situation.