One of the mistakes many divorced parents of minor children make is assuming the custody order entered in the course of their divorce will remain in effect until the child reaches the age of majority. As a result, they may adopt patterns of behavior that harm the child’s relationship with the other parent or interfere in some way with the custody arrangement. These parents fail to realize that this sort of behavior can cause them to lose some of the custody rights they currently enjoy.
Under Pennsylvania law, either party may petition at any time for a change in the current custody arrangement. If a parent files a petition for a change in custody and the court determines that a change is in the child’s best interest, a change in custody will be ordered. As the court’s focus must always be the best interest of the child, custody orders may be continually modified until the child reaches the age of 18 and may favor or disfavor the parent who filed the petition.
As stated above, Pennsylvania Child Custody Law requires that the paramount concern in any child custody proceeding is the best interest of the child. The courts are required to consider all of 15 specific factors as well as any other relevant factor (the “15-plus factors”) * in determining what is in a child’s best interest. This is so with respect to the original custody order as well as any modification of a current order.
As the circumstances of each case can differ markedly from those of others, custody awards are made on a case-by-case basis through consideration of each of the 15-plus factors as they relate to the particular case. Often, many of the factors will be seen to weigh evenly in favor of both parents. If one or more of the remaining factors weigh heavily against one parent, however, the court may deem a change in custody to be in the child’s best interest.
In some cases, courts may find the parents equally at fault, yet still order a change in custody. As always, the decision is based upon the court’s determination of what is in the child’s best interest at the particular point in time.
Among the 15-plus factors courts must consider before modifying a current custody order are several that relate in some way to the behavior of one parent toward the other, including
Because parents’ negative behavior toward each other is often found by the courts to run contrary to the best interest of a child, courts may alter a current custody order to lessen the effect of such behavior on the child.
Trial courts have altered custody awards when one parent has attempted to discourage or damage the relationship between the other parent and the child. In a 2013 Pennsylvania case, for example, a mother lost Shared Physical Custody ** of her child after making false allegations of child abuse against the father. Though the mother was the one who had petitioned for modification of the current custody arrangement, the trial court granted the father Primary Physical Custody after considering all of the factors required by law.
Most of the factors were found to weigh evenly in favor of the parties in that case. But, the court found that factors 1, 2, 8, and 13 all weighed heavily against the mother and in favor of the father. *** With respect to each of these factors, the court’s determination was based upon its finding that the mother filed false allegations of sexual molestation against the father and subjected the parties’ daughter to several interviews by medical doctors in fabricating her claim.
Trial courts have also found parents’ attempts to interfere with the custody rights of the other parent to constitute an attempt to discourage the relationship between the child and the other parent and have altered the custody order to lessen the effect of such behavior on the child.
In a 2012 Pennsylvania case, both parents sought modification of the current custody award, which gave the mother Primary Physical Custody. Though the trial court determined that both parties were discouraging frequent and continuing contact between the child and the other parent, the court decided that the best interests of the child would be served by granting 50/50 custody to both parents until the child began full-time school, and Primary Custody to the father, thereafter.
Even though the mother and father were seen to be equally at fault, the mother’s Primary Physical Custody was revoked and the new arrangement established in its place. The court stated that the most crucial consideration was “the need for this Minor child to continue with a good relationship with both parents. This overrides all other concerns.” Thus, the new order was not intended to punish parental behavior, but rather to maximize the child’s best interests.
Courts consider a parent’s attempts to turn a child against the other parent to be against the best interest of the child (Factor 8 under current law). In a 2010 Pennsylvania case, a mother was granted Primary Physical Custody of her two boys after the father began to disparage her to the children, her friends and neighbors, and on social media sites. Though this decision was made before the current 15-plus-factor custody law went into effect, the court based its decision on its assessment of what was in the best interests of the child. As the child’s best interest continues to be the determining focus of all custody decisions made by Pennsylvania courts, this case is still relevant as an example of behavior that could lead to a modification of custody.
The court in that decision stated, “There is no hint in the testimony that Mother ever denigrated Father by word or action. Father has horribly denigrated Mother. He has distributed her compromising emails and images to some of her friends here and to a family member in the Philippines. He called her [names] in front of his children and then to the police. He referred to Mother as “nutty” and “just a bit slutty” on Facebook. As a result of this behavior, as well as the father’s attempts to control the relationship between the mother and children, the court found that the best interests of the children would be served by making the mother their Primary Physical Custodian.”
Trial courts have also altered custody arrangements to lessen the effect on a child of the high level of conflict between the child’s parents (Factor 13). In a 2012 Pennsylvania case, the court modified the current order, which gave Primary Physical Custody to the mother, and granted Shared Custody to the father and mother in an attempt to reduce the tension in the relationship caused primarily by the mother’s behavior.
The mother had often refused to produce the child for custodial exchanges, had changed her cellphone number without informing the father, and had enrolled the child in a new school without informing the father. As so much of the difficulty was caused by the mother’s refusal to cooperate with respect to custodial exchanges, the court decided that a Shared Custody order might alleviate much of this problem. The court stated that the new arrangement would “provide for large blocks of time with each parent, to minimize opportunities for the parents to engage destructively with each other around custodial exchanges.”
Another of the 15-plus factors is the child’s well-reasoned preference, based on the child’s maturity and judgment (Factor 7). When one parent disparages the other, and the negativity is primarily one-sided, children notice and may repeat what is said to a counselor or judge. The child may also come to prefer the company of one parent over the other.
Though parents often assume that their child will agree with the negative comments they make about the other parent, this is not always the case. If your child perceives a disparity between your characterization of the other parent and reality, your child may come to resent your negativity and prefer the company of the other parent. A court may very well see this as a well-reasoned preference and rely upon it in its determination of custody.
The cases discussed above represent only a few of the circumstances that might lead to a modification of child custody. Remember, in addition to the factors listed in the statute, a court must consider any factor relevant to a child’s best interest. A knowledgeable family law attorney can help you identify the factors relevant to your particular case and assist you in bringing or defending any petition for modification of custody.
* For a complete list of the 15-plus factors courts must consider in any child custody determination, see The 15-plus Standards for Awarding Child Custody in Pennsylvania.
** Shared Physical Custody gives both parents the right to physical custody of the child for significant periods of time. Primary Physical Custody gives one parent the right to physical custody of a child for the majority of the time.
*** Factors 1, 2, 8, and 13 of 23 Pa. C.S.A. section 5328(a) read as follows:
#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;
#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;
#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.