There are two aspects of Child Custody: legal custody and physical custody. Legal custody is the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions. There can be shared legal custody, which is the right of more than one individual to legal custody of the child, or there can be sole legal custody, which is the right of one individual to exclusive legal custody of the child. Physical custody is the actual physical possession and control of a child.
There are different awards of physical custody. An individual can have: sole physical custody, which is the right of one individual to exclusive physical custody of the child; primary physical custody, which is the right to assume physical custody of the child for the majority of time; shared physical custody, which is the right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child; partial physical custody, which is the right to assume physical custody of the child for less than a majority of the time; and supervised physical custody, which is custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.
Not just anyone can bring an action for custody of a minor child. To bring an action for legal custody or physical custody, an individual must have standing. Pursuant to the Pennsylvania Custody Statute, examples of individuals with standing include: a parent of the child; a person who stands in loco parentis to the child; a grandparent of the child who is not in loco parentis to the child when certain conditions are met; and an individual who establishes by clear and convincing evidence that the individual has assumed or is willing to assume responsibility for the child, the individual has a sustained, substantial and sincere interest in the welfare of the child, and neither parent has any form of care and control of the child.
Request a Consultation
In addition to the foregoing, grandparents and great-grandparents may file an action for partial physical custody or supervised physical custody in the following situations:
- Where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;
- Where the relationship with the child began either with the consent of a parent of the child or under a court order and where the parents of the child:
- Have commenced a proceeding for custody; and
- Do not agree as to whether the grandparents or great-grandparents should have custody under this section; or
- When the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after the removal of the child from the home.
When the Court is ordering any form of custody, the Court determines the best interest of the child by considering the following factors:
(1) Which party is more likely to ensure the safety of the child.
(2) The present and past abuse committed by a party or member of the party’s household, which may include past or current protection from abuse or sexual violence protection orders where there has been a finding of abuse.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(2.2) Violent or assaultive behavior committed by a party.
(2.3) The level of cooperation and conflict between the parties, including:
(i) which party is more likely to encourage and permit frequent and continuing contact between the child and the other party or parties if contact is consistent with the safety needs of the child; and
(ii) the attempts by a party to turn the child against the other party, except in cases of abuse where reasonable safety measures are necessary to protect the safety of the child. A party’s good faith and reasonable effort to protect the safety of a child or self shall not be considered evidence of unwillingness or inability to cooperate with the other party. A party’s reasonable concerns for the safety of the child and the party’s reasonable efforts to protect the child shall not be considered attempts to turn the child against the other party. A child’s deficient or negative relationship with a party shall not be presumed to be caused by the other party.
(3) A willingness and ability of a party to prioritize the needs of the child by providing appropriate care, stability and continuity for the child, considering the parental duties performed by the party on behalf of the child in the past and whether the party is willing and able to perform the duties in the future, and attend to the daily physical, emotional, developmental, educational and special needs of the child.
(4) The need for stability and continuity in the child’s education, family life and community life, except if changes are necessary to protect the safety of the child or a party.
(5) (Deleted by amendment).
(6) The child’s sibling and other familial relationships.
(7) The well-reasoned preference of the child, based on the child’s developmental stage, maturity and judgment.
(8) (Deleted by amendment).
(9) (Deleted by amendment).
(10) (Deleted by amendment).
(11) The proximity of the residences of the parties.
(12) Each party’s employment schedule and availability to care for the child or ability to make appropriate child-care arrangements.
(13) (Deleted by amendment).
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor.
To understand what custody rights you may have under the law and how best to navigate your particular situation, whether that be going to Court if necessary or reaching an agreement without the necessity of Court intervention, please contact our office to schedule a consultation.
