Child Custody in Pennsylvania

What is child custody?

"Custody" means the legal right to keep, control, guard, care for and preserve a child and includes the terms "legal custody," "physical custody," and "shared custody." Pa. R.C.P. 1915.1

Custody is broken down into two component parts:

1. Physical Custody

A parent who has "primary physical custody" of a child has the right to provide day-to-day care for the child. The key aspect of physical custody in most child custody situations is that the child will live with the parent who has physical custody. A large percentage of custody arrangements give primary physical custody to one parent ("custodial parent") and "partial physical custody (partial custody)" rights and shared "legal custody" to the non-custodial parent. Typically, partial custody rights (overnights and extended periods of time over several days) give the non-custodial parent exclusive time with the child at specific times. A typical example would be every other weekend, alternating major holidays, and normally several consecutive weeks during summer vacations.

In the past, it was true that "joint physical custody" (also referred to as "shared physical custody") arrangements were more common; there were cases in which the child lived with each parent roughly half the time. Today, such arrangements are less common, and in most cases very difficult to maintain after a child reaches age five and starts school as the parents usually reside in different neighborhoods. More recently, the courts have sought to lessen disruption to the child's routine, resulting in one parent usually awarded primary physical custody of the child.

2. Legal Custody

An order granting "legal custody" means the legal right to make major decisions affecting the best interests of a minor child, including but not limited to, medical, religious and educational decisions. Pa. R.C.P. 1915.1

In a large percentage of child custody cases, legal custody is awarded to both parents (called "shared or joint legal custody"), however, should it be determined that one parent is somehow unfit or is incapable of making decisions about the child's upbringing, the court will in all likelihood award legal custody to the parent found to be fit. Legal custody is different from "physical custody," which involves issues such as where the child will live.

What is the difference between partial custody and visitation?

Visitation means the right to visit a child, but does not include the right to remove the child from the custodial person's control. Pa. R.C.P. 1915.1 (2004). In many cases the court will exercise its discretion to place conditions upon a person's access to the child. If, indeed, the court believes that the non-custodial parent may harm the child or act improperly toward the child, the court may restrict the visitation to a supervised environment.

Should it be necessary to seek an order for the determination of custody rights, what do you want the court to know about you and your parenting ability?

1. Be ready to explain to the court why you want custody of your child.
2. Tell the court what kind of relationship you have with your children. Give examples.
3. Are you the primary caregiver for your child up to now? Give examples.
4. What are the good and bad things about the home where you live? (Location, size, separate bedrooms for the child(ren), neatness, school district, play areas, and playmates in the neighborhood for your child to play with, etc.)
5. Do you provide a positive role model for your child? Provide examples of good character.
6. Are you the parent that will encourage and help the child by example and by teaching, to exhibit the appropriate behavior in school, to get along with others?
7. Are you the parent whose lifestyle is a better example for the child to see? (Steady employment,community ties, close family and friends to help supply a support system)
8. Does the opposing parent have character defects such as alcoholism, drug abuse, emotional disorders, violent crime, or suicide attempt? Can you provide examples of how these problems have affected the child in any way or how you believe they may affect the child?
9. Does the opposing parent have a history of an abusive or unhappy relationship with the child? Can you document incidents which substantiate your claims?
10. Are you the parent who can provide more appropriate structure, support, and supervision for the child?
11. Are you the parent who is more likely to encourage regular contact between the child and the other parent? Can you provide examples?
12. Does the child have any special needs (medical problems, learning disabilities) that you are better qualified or equipped to deal with than the other parent?
13. What is your contribution to the child's current school performance, social and emotional development? If there are any problems in these areas, can they be traced to imperfections, flaws or failings of the other parent or the home environment provided by the other parent?
14. Has the other parent involved the child in disputes involving custody, support or divorce? Has the other parent encouraged the child to "take sides"?

You should always remember that the court's guiding pole star is the "best interests of the child" and your answers to the above questions should always keep that phrase in mind.