The following is an article courtesy of Howard Gibson, from his book No-Fault Divorce in Pennsylvania.

Underlying child custody law in Pennsylvania is the notion that custody law should promote the best interests of the child. The law places great importance on continued contact between the child and both parents after separation or divorce.

The law does not give parents the final decision regarding custody that decision is the court's. The law considers the care of children to be so important that courts, while they encourage parties to reach agreements, retain the right to decide child custody while giving weight to what the parents decide. However, a reasonable custody agreement arrived at between the parents in a mature, open manner will probably be acceptable to the court.

The law in Pennsylvania explicitly states that children cannot be dealt with in the same way property is dealt with in settlement agreements--children are not property. A Pennsylvania judge wrote: "A child cannot be made the subject of a contract with the same force and effect as if it were a mere chattel" That is another way of saying that custody cannot be used as a bargaining chip in the settlement agreement negotiation. If the court suspects that custody rights have been traded for some property considerations, it will not honor the parents' decision. No matter what the parents agree to, a custody agreement may be modified by the court at any time before of after the Divorce Decree is granted.

The parent without physical custody of the child has a legal right to visitation with that child. It should be remembered that the right to visitation is just as much the child's right as a right of the parent. The court can appoint an attorney to represent the child. This type of attorney is called a guardian ad litem.

Grandparents

Grandparents have legal rights in custody decisions. If one parent dies, the child's grandparents or great grandparents have the right to seek partial custody or visitation rights. If a child has lived with a grandparent for more than 12 months, that grandparent may seek custody. However, a grandparent may get custody only if there is no conflict between the grandparent and a parent. Courts are extremely reluctant to interfere with the parent-child relationship.

Child's Best Interests

Pennsylvania custody law is intended to promote the child's best interests, but the law contains no definition of the child's best interests. Where a court is asked to make a custody determination, it considers several factors, including:

1. The character and fitness of the parents seeking custody.
2. The nature of the proposed custodial environments (living situation).
3. The parenting abilities and inclinations of each parent.
4. The ability of each parent to provide for the child's physical, intellectual, emotional and spiritual well being.

In the past, Pennsylvania courts followed the "Tender Years Doctrine." The courts felt that the mother was best able to provide for the child's best interests and welfare and gave mothers preference in custody decisions.

In 1977, the Supreme Court of Pennsylvania held that the Tender Years Doctrine violated equality of the sexes required by the Pennsylvania Constitution. The courts, however, have since tended to favor the parent who has been the primary caretaker of the child. In most instances, the mother is the primary caretaker.

Siblings

Pennsylvania courts strongly favor keeping brothers and sisters together when there is no compelling reason to separate them.

Uniform Child Custody Act

Pennsylvania has adopted the Uniform Child Custody Jurisdiction Act, which resolves child-custody conflicts between states. Under the Act, Pennsylvania recognizes and enforces child custody orders made in other states, and Pennsylvania custody orders are recognized and enforced elsewhere.

Counseling

The most vulnerable individuals in the dissolution of a marriage are the children. The most profound disruption of a young child's world is the separation of the parents. The thought of separation from a parent is a small child's worst imaginable nightmare. In considering custody issues, you may well be dealing with a child in emotional disarray while you yourself are experiencing stress. Family counseling may help you and your children adjust to the new situation, and counselors may have good advice regarding how custody should be arranged.

Legal Terms

Courts use precise legal terms in describing custody issues. It is helpful to know and use the precise terms correctly to avoid confusion. These terms are:

Legal Custody. The legal right to make major decisions affecting the best interests of the child, in matters including, but not limited to, education, religion and medical decisions.

Physical Custody. The actual possession and control of the child.

Partial Custody. The right to take possession of the child from the custodial parent for a certain specified period of time.

Shared Custody. Shared legal or physical custody, or both, of a child in such a way as to assure the child of frequent and continuing contact with, and physical access to, both parents.

Visitation. The right to visit a child. This does not include the right to remove the child from the custodial parent's control. That right is "partial custody."

Use these exact terms. Avoid other phrases such as "joint custody" or "primary custody," which may cause confusion. These terms do not have precise legal meaning under Pennsylvania law.

Reaching a Custody Decision

Seek the help of an attorney if there is any question or hesitation whatsoever on either spouse's part. If, however, you have always been able to communicate well about the children and discuss openly the many difficult issues that arise in normal family living, then you should be able to reach an acceptable agreement. Again, the services of a good family counselor may be helpful.

Perhaps the first decision to reach is whether shared custody is appropriate or whether a visitation arrangement would be best. Many parents today are trying various types of shared custody, alternating weeks, months, or times of the year.

If one parent is to have physical custody and one is to have partial custody and visitation rights, decisions must be made on where the child will spend holidays, birthdays and other family occasions. Decisions must be made on who will care for a sick child. The child's relations with grandparents should also be considered.

Also, agreements should address the possibility that the custodial parent may want to move to a distant state. An agreement should, at the very least, have a clause requiring some sort of notice to the non-custodial parent if the custodial parent decides to move. If the children are to be taken to a distant location, new custody arrangements may be necessary.