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Act 112: Section 5328 - Factors in awarding custody.

Section 5328 sets forth the new factors in awarding custody. The basis of every custody decision remains the "best interests" of the child. But there a number of new factors that are explicitly made a part of the "best interests" test.

"Best interests" is vague enough that every factor listed below (even the "new" ones) has been used in many past custody cases. But we now have an extensive framework of factors that the court must consider in determining the best interests of a child.

In addition, Act 112 provides that the factors involving the safety of the child are given "weighted consideration" (i.e. are especially important). Otherwise, no factor is given priority over another. However, after the list, we tell you those factors most often found to be important.

Custody is the ultimate "case by case" type of analysis. Depending on the case, any one of these factors could be paramount. Consideration of every factor means does not mean that the every factor will be relevant to your case. The court can find a factor to be non-applicable, unimportant or irrelevant. But the court must at least think about the factor.

The 16 factors (paraphrased for clarity) are:

1. Contact. Which party is more likely to encourage and permit frequent contact between the child and another party.

2. Abuse. Present or past abuse by a party or household member and the continued risk of harm to the child or an abused party.

3.Duties. The parental duties performed by each party on behalf of the child.

4. Stability. The need for stability in the child's education, family life and community life.

5. Family. The availability of extended family.

6. Siblings. The child's sibling relationships.

7. Preference. The "well-reasoned" preference of the child. The weight given to this preference will depend on the maturity and judgment of the child.

8. Alienation. Attempts by a party to alienate the child. Reasonable safety measure to protect the child are not "alienation".

9. Relationship. The party better able to provide a loving, stable, consistent and nurturing relationship with the child.

10. Daily needs. The party better able to meet the "physical, emotional, developmental, educational and special" needs of the child.

11. Location. How far apart do the parties live from one another?

12. Child-care . The ability of each party to make appropriate child-care arrangements or to provide child-care themselves.

13. Conflict. The amount of conflict between the parties and the willingness and ability of each party to cooperate.

14. Substance abuse. The history of drug or alcohol abuse by a party or household member.

15. Condition. The mental and physical condition of a party and their household.

16. Best-interests catchall. Anything that is relevant to the "best interests" of a child can be raised, even if it does not fall under a "factor". However, gender is explicitly irrelevant to a custody decision (5328 (b)) .

As a practical matter, factors 2, 3, 6, 7 and 11 are often important. However, any
factor(s) can be the key, depending on the facts of the particular case. Previous law only included the Contact, Abuse, Preference and Catchall provisions.

The effect of criminal charges and convictions on custody is handled by the two sections that follow, Sections 5329 and 5330.

The key in using these factors is to remember that the factors are only tools to help determine the child's best interests. For example, drug use from years ago is rarely relevant. However, substance abuse that may effect a parties' future parenting or the child's future safety would be relevant. We do look at the past, but only to better judge the likely future.

It is vital that your attorney understand (1) the relevant facts of your case, (2) the most persuasive way to present those facts and (3) the preferences of the judge.