Factors Considered in Trial for Primary Physical Custody
The head of Musi, Merkins, Daubenberger & Clark, LLP’s Family Law Department, Lucas A. Clark, IV, Esquire, was retained to take a custody case to trial that involved two parents operating under a 50/50 shared physical custody order who were both fighting for primary physical custody of their 15-year-old son. The parties had this shared physical custody arrangement in place for years and lived very close to one another. However, throughout this case and at trial, Luke focused mainly on the co-parenting issues between the parties that needed to be highlighted in order to show the Court that primary physical custody should be awarded to his client, who is the mother of the child. Additionally, some major points highlighted during the trial that helped Luke obtain this victory were the well-reasoned preference of the child based on the child’s maturity and judgment as well as the attempts of one of the parents to turn the child against the other parent. The Court found both of these factors to be in favor of the mother and this ultimately led the Court to find that the 16 factors of the Best Interest Test, which the Court is required to set forth and address for any award of custody, weighed in the mother’s favor.
The first factor that Luke focused on at trial was the well-reasoned preference of the child based on the child’s maturity and judgment, which the parties testified to, and the Court interviewed the child with only counsel present in order to attempt to ascertain. The child told the Court that he felt that the current custody order was not effective, he stated that he often became upset due to the father’s comments being made towards the child about the child and about the mother, and he felt that the idea of exchanging custody back and forth was causing added stress that was not necessary. The child also requested more one-on-one time with the father, but this had not been improving and as a result caused him to dislike the schedule. The child felt that his mother’s residence allowed him to have more access to his friends and hobbies, which is why he enjoyed being there more often than his father’s. Luke, by raising and highlighting these issues through pleadings, pre-trial statements, direct testimony and cross-examination, was able to show, and ultimately prove, to the Court, that the child is very mature and his preference of his mother’s residence over his father’s was well-reasoned.
The second factor that Luke focused on at trial was the issue of the attempts of one parent to turn the child against the other parent. Luke utilized the testimony of the parties, the child and the child’s older adult sibling to show and prove to the Court that the father would often tell the child about the “horrible things their mother did” in order to try and turn the child against his mother. Not only would the father engage in these activities, but the father’s girlfriend would often make disparaging comments about the child’s mother as well. The father said many cruel things about the child’s mother in front of him, and there was no evidence that the mother had ever spoken baldly about the father to her child. Based upon such, the Court found that this issue favored the mother because it showed the Court the circumstances in which the child lives when he is with his father and prohibition on disparaging comments about either parent to the child is a major, baseline rule in custody cases.
When looking at these specific issues in Court, Luke was able to highlight how they affected the child while in the care and custody of his father and helped prove that the mother’s living environment is a healthier place for the child to be residing in. The testimonies of the minor child and his older adult sibling provided the Court with the evidence necessary to prove that the father consistently talked poorly about the child’s mother in front of him and to him in order to attempt to turn the child against her and the father was not providing the child with the one-on-one time as the child had requested. Overall, the child was experiencing stress with the constant switching back and forth between the parties’ households. After providing this information to the Court and proving its negative effects on the child, Luke was able to achieve his client’s stated goal in this case of modifying the shared physical custody order between the parties to mother being awarded primary physical custody of the child.