In 2011 Pennsylvania amended the legal standard for awarding child custody by establishing 15 standards [1] on which the deciding court must base a custody decision. By showing the court a pattern of parenting behavior that meets the standards in the custody law, divorced and separated fathers can find a path to custody and a meaningful role in the raising of their children.

The 15 factors used by Pennsylvania courts when awarding child custody rights are:

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

2.    Present and past abuse committed by a party or a 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 provide adequate physical safeguards and supervision of the child.

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

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

5.    The availability of the extended family.

6.    The child’s sibling relationships.

7.    The well-reasoned preference of the child, based on the child’s maturity and judgment.

8.    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.

9.    Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child, adequate for the child’s emotional needs.

10.    Which party is more likely to attend to the daily physical, emotional, developmental, educational, and special needs of the child.

11.    The proximity of the residences of the parties.

12.    Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

13.    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 or another party is not evidence of unwillingness or inability to cooperate with that other party.

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

15.    The mental or physical condition of a party or a member.

Today there is a strong presumption in favor of awarding joint custody to both parents. Courts in Pennsylvania no longer presume that children of any age are better served by awarding custody to the mother rather than to both parents. Rather, the court is required to look at each of the 15 criteria and make an evaluation of whether each parent can meet the required standards.

Providing the Physical Setting

The first order of business for a separated father who wants custody (either physical or legal custody) is the issue of providing the child with a stable, consistent environment and continuity in his/her life—[Items #4 and #9 on the list of custody criteria]. Fathers may be handicapped in this regard because they are the parent who is most often required to leave the marital residence where the child is accustomed to living and already has a stable home life. A father’s most effective strategy for meeting the “stable, consistent and continuity” test is to establish an alternative residence that has the essential features that make the residence function as a “home” for the child.

Once an alternative home is established, it should be used like a home—not a hotel. Have regular meals at home with the children rather than in a restaurant. Cooking is not required. Premade food can be purchased and simply warmed and set on the table. The purpose is to have the meal in a home setting that will feel more regular to your children. Ideally the children’s alternative home should contain the basic clothing, toys, toiletries, vitamins, books, sneakers, etc. that your child uses on a day to day basis so that your child won’t need to bring these items with him or her when visiting with the father.

Performing Parental Duties

Once an alternative residence is established, you should make every effort to meet “parental duties” and the “physical, emotional, developmental, educational, and special needs of the child” as described in factors #3 and #10 of the custody evaluation criteria. Establishing rules for a regular bedtime and having a routine for homework are just a few of examples of the types of behavior that meets these standards. It is tempting to indulge a child that you see less frequently than you would like, but indulgent behavior is contrary to the consistent lifestyle that the court is looking to find when they evaluate your fitness for custody. Supervise your child’s homework. Take him/her to the birthday parties, sports, and other activities that they have with their friends [item #4 on the list]. The more your child’s life in your alternate home feels like a continuation of life in the home they left (assuming that your spouse was maintaining a proper lifestyle), the better you will appear in the eyes of the court.

Behavior Toward Other Parent

It is very common that the relationship between you and your (former) spouse is not cordial and that you want the court to award you a greater degree of custody than your spouse believes is appropriate. In these circumstances, feelings of anger and hostility towards your spouse are normal. However, expressing these feelings of anger will work against your chances of obtaining greater custody of your children. Any hostility you exhibit towards you spouse will be viewed negatively by the court. The court looks with favor on the parent that encourages and permits frequent contact with the other parent and looks with disfavor on any parent that attempts to turn the child against the other parent [items #1 and #8 on the list].

Concealing your anger about your spouse is harder than you may think. Most men don’t realize how much even very young children hear and understand. A snide or derogatory comment that you make about your spouse, while talking on the telephone to friends and family, or when you’re speaking with another adult within the hearing of your children, is very often heard and understood by the children. It may look to you as though your child is occupied and distracted while playing with friends or watching television, but they hear and understand everything you are saying, especially if you are speaking about their other parent. If you roll your eyes or make a face when referring to your spouse, your children will absorb this as a criticism. Furthermore, if your right to custody is hotly contested, then professionals, such as child psychologists, will be used by the court to speak with your children independently and report their impressions to the court. The impression you make on the children regarding your opinion of your spouse will likely come to be known to the court.

The advice of “say no evil” is difficult to follow when your spouse is behaving in a contrary manner. If both you and your wife are disparaging each other, the court will discount the behavior of you both. However, if you can maintain your composure and hold back your criticism of your spouse in the presence of your children, then the court will note your spouse’s bad behavior as a negative custody factor that you have not exhibited.

The Extended Family

If possible, try to maintain a friendly relationship with your in-laws, both yours and your spouse’s [#1 and #5 on the list of criteria]. The availability of the extended family is one of the factors considered by the court when determining custody. The children should have contact with both sets of grandparents, aunts, uncles and cousins. You need to provide the children with access to family affairs, even if those affairs are with your spouse’s family and occur during your time with the children. If you take your child to see his/her extended family or attend functions with the family during your visitation periods, this cooperative behavior will be noted by the court. If your children have siblings that are not related to you, you should be sensitive to your children’s relationship with those siblings and behave in a manner to encourage and support a good relationship.

Damaging Traps for the Unsuspecting Father

There are some activities that may be appropriate under certain limited circumstances, but these same activities will sound a “DANGEROUS BEHAVIOR” warning in the mind of any court determining child custody. Avoid all of the following emotionally charged, high risk behaviors, regardless of how innocent they may be in your particular situation:

1.    Do not sleep with your child in your bed.

2.    Do not remove your clothes and take a bath or shower with your child.

3.    Supervise bathing, but do not wash intimate areas of any child over five years of age.

These are situations that, with vulnerable children, can be exploited by an angry spouse. As a father seeking custody, you must not only act properly, but you must not to put yourself in a position where someone could easily accuse you of acting improperly. Children are susceptible to suggestions from the parent who has physical control over them, and from other authority figures. Do not provide anyone with the opportunity to twist the activities of your life with the children into something nefarious.

Child custody for fathers in PA can become a reality.

 [1]Pennsylvania Child Custody Law, Chapter 23 Purdons Statutes §5328. “Factors to Consider When Awarding Custody.”

Judith E. Fellheimer, partner in the Family Law Group at Fellheimer & Eichen LLP.