I try not to become angry with clients; recognizing that they are in the middle of family law litigation.  But there are times when a client will insist that they know best “what the court will do”.  That can be a frustrating experience.

I had this occur with a client on Friday yet with a remarkable result.  The client was giving me conflicting messages of the result he desired and when I suggested possible settlement approaches, each was summarily rejected.  So, I got mad.  Along the way the client referenced the sixteen factors which Courts must now consider in rendering any custody decision.  So I told the client: “Look, this is going to court so I want you to be prepared.  Look at the factors and give me a brief analysis of each so that we have mustered our best arguments.”  I wasn’t expecting much because I really felt that the client was trapped in his own anxiety and paralyzed in the decision making process.

I still believe that to be correct.  But, on Monday I received a six page single space analysis of the factors as they related to his children.  The analysis was both reasoned and balanced.  He identified the other parent’s strengths while also giving full rein to the weaknesses.

The client surprised me.  And as I read his work, it occurred to me EVERY custody litigant should be required to prepare and submit a similar document with EVERY custody pleading.  I am not a fan of “make work” projects.  But in a world where I recently have had several conversations with judges and masters bemoaning the avalanche of new pleadings, many of which do little more than say that custody should be modified because “it’s in the child’s best interests”, is it not time to make litigants and counsel do more to frame the issues?  I have witnessed many hearings where the parties and, sadly, sometimes the attorneys, cannot articulate what change they want or why the existing arrangement no longer works.  I have watched judges and hearing officers tamper with arrangements where no one can really articulate how the current arrangement is broken, yet they will try to fix it through modification anyway.  Sadly, this does little more than invite more petitions and more tampering.

So, I offer a modest proposal.  Every custody pleading should have appended to it an analysis of the factors described under 23 Pa.C.S. 5328(a) prepared by the filing party.  The responding party has 20 days to file a similar document.  If the General Assembly thought these factors important enough to insist that the judges evaluate them in every case, shouldn’t the litigants be obliged to provide both the Court and each other with a specification of what is, right, wrong and/or in the best interests of the child.  As we all know the process of putting pen to paper often crystallizes issues and forces most people do deeper thinking.  As any judicial officer in Pennsylvania will tell you, custody litigants and attorneys could not be harmed by thinking more about custody issues and vocalizing less.

Note Bene: The “Factors” can be found by searching the statute:   23 Pa.C.S. 5328(a)