Whether you are contemplating a divorce or are already involved in a custody dispute with your child’s other parent, figuring out how to share parenting time may be one of the most difficult decisions you have to make. In Pennsylvania, parents (and even grandparents, in certain circumstances) can work out a custody plan together, through their attorneys, or in mediation. If you and the other parent can’t agree to a parenting plan, then the court will have to set up the plan for you.
How the Custody Process Works
The formal legal process begins when a parent files a custody complaint. A custody action has to be filed in the state and county where your child has lived for the past six months. Before any scheduled court dates, some counties require both parents to come to court –sometimes with your child, depending on the child’s age – and attend a seminar that explains the court process and your responsibility to protect your child’s emotional health as you go through it.
There are 67 counties in Pennsylvania, each with its own rules. Your best bet is to visit the court’s website in the county where your child lives, or go to the courthouse in person to ask for specifics. In many counties, you’ll be sent to a mediation session with a court-appointed mediator. If you can’t reach a mediated agreement or you are in a county where no mediation program exists, then you may move on to a hearing (sometimes called a conciliation conference) before a judge or another court employee with expertise in custody matters (sometimes called a special master or custody master).
If you still have not reached an agreement by the end of this hearing, then the court may order home studies or psychological evaluations of the parents and children. Once the court receives the report on these evaluations, it will hold a trial to determine the custodial arrangement that is in the best interests of the child.
As this process moves along, you are free at any time to settle your dispute with the other parent outside of court. As time marches on you may think settlement is less likely, but that’s not necessarily true. Many parents resolve their custody differences when the trial is about to begin.
Factors the Court Considers in Determining Custody
The court considers a long list of factors to find the best custodial arrangement. These factors include:
- which parent is more likely to encourage and permit frequent and continuing contact between the child and another parent
- present and past abuse, whether there is a continued risk of harm, and which parent can better provide adequate physical safeguards and supervision of the child
- parental duties performed by each parent
- the need for stability and continuity in the child’s education, family life, and community life
- availability of extended family
- the child’s sibling relationships
- the well-reasoned preference of the child based on their maturity and judgment
- either parent’s attempts to turn the child against the other parent (except where there is domestic violence)
- which parent is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child adequate for the child’s emotional needs
- which parent is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child
- how far the parents live from each other
- each parent’s availability to care for the child or ability to make appropriate child-care arrangements
- the level of conflict between the parents and the willingness and ability of the parents to cooperate with one another (again, excluding a parent’s effort to protect a child from abuse)
- the history of drug or alcohol abuse of a parent or member of a parent’s household, and
- any other relevant factor.
While the court has wide latitude to consider other elements impacting the child’s life, it can’t use gender to give preference to one parent over the other. Also, it must give special attention to the child’s safety. Once the court has all the information it needs, it will make a custody order telling the parents who cares for the child at what time, and at what extent.
Types of Custody
There are two types of custody: physical and legal. There are two ways to hold legal custody: shared (or joint) and sole. Pennsylvania defines five categories of custody: shared, primary, partial, sole, or supervised. Here are the details for each.
Pennsylvania Laws Regarding Physical Custody
The law defines physical custody as the actual physical possession and control of a minor child.
- Shared physical custody, also called joint physical custody, gives both parents significant periods of custodial time with the child, including overnights.
- Primary physical custody means the child lives with you a majority of the time.
- On the other hand, partial physical custody means you spend less than 50% of the time with your child. Partial custody may include the right to have overnight custody.
- Sole physical custody means you do not share physical custody with the other parent. It is your right alone.
- Visitation is the right to spend time with a minor child, but not the right to remove the child from the custodial parent's control.
Pennsylvania Laws Regarding Legal Custody
Legal custody is the right to make important decisions that affect the child, including decisions regarding education, religion, and medical care. If the parents are able to cooperate, even minimally, the court will usually order shared legal custody. Under a shared legal custody arrangement, generally the parent who has physical custody on a given day makes routine day-to-day decisions and the parents share the responsibility for making major decisions.
Having sole legal custody gives one parent significant decision-making influence over the child’s life, but it does not allow this parent to upset the other parent’s relationship with the child. For example, even if you have sole legal or physical custody, you can’t move from one residence to another without both the court’s consent and the consent of the other parent. If the other parent objects to your move, you must return to court to fight for your right to go with your child, which may result in a modified custody order.
Relocation Proceedings in Pennsylvania
In Pennsylvania, you must notify the court and the other parent if you want to move. Without the other parent’s consent, you can’t go until you attend a hearing and receive approval from the court. During the hearing (sometimes called a Plowman hearing), you must show the court that the move would substantially improve both your and your child’s quality of life, that your motive for leaving is not to spite the other parent, and that there is a realistic substitute for your current visitation arrangement.
Whether the court permits you to relocate with your child will depend on the extent of the relationships between the child and all other significant people in the child’s life, the child’s age and preferences, and the feasibility of maintaining the child’s relationship with the non-moving parent, among other factors.
Grandparents' Custody Rights in Pennsylvania
Grandparents can request physical or legal custody of a child if they already have legal status that allows them to act as the child’s parent (this is called in loco parentis) or under specified other circumstances. These circumstances are that the grandparent-child relationship began with a parent’s consent or under a court order, the grandparent is willing to assume responsibility for the child, and one of the following conditions exists:
- the child is a dependent child
- the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity, or
- the child has resided with the grandparent for at least 12 consecutive months, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the grandparents’ action must be filed within six months.
Grandparents may also request partial physical custody or supervised physical custody if the parent of the child has died, the parents have either been separated for at least six months or filed for divorce, or the child has lived with the grandparent for at least 12 months. Under these limited circumstances, the court will decide a grandparent’s right to custody based on the amount of personal contact between the child and grandparent, whether custody to the grandparent would interfere with any parent-child relationship, and again, the best interest of the child.