Practice Areas - Custody

Practice Areas - Custody

T here are two main types of custody, i.e., physical custody and legal custody. Physical custody involves the schedule that each parent will have with the child(ren). There are different types of physical custody. These are primary physical custody, partial physical custody and shared physical custody. The word “visitation” is common and means that a party has a right to visit the child, but does not have the right to remove the child from the custodial party’s control.[1] The number of overnights the children spend with each parent will determine what type of physical custody the parent has. The parent having custody more than half of the overnights is typically referred to as the primary physical custodian. Partial physical custody means that the children will reside with one parent less than half of the time (measured in overnight stays). Shared physical custody means that the children live with each parent fairly equally. Fathers often believe that the courts are predisposed to giving mothers primary physical custody and fathers partial physical custody. This is no longer the case as policies and laws have changed in Pennsylvania. The courts in this area generally favor shared physical custody, unless there are reasons that mandate against it.

The second main type of custody is legal custody.  Legal custody is the right of a parent or parents to make decisions of importance in the lives of the children relating to their education, health and religious upbringing.  The courts in the overwhelming majority of cases routinely award shared legal custody.  Sole legal custody is awarded to a parent only when shared legal custody is strongly counter-indicated, such as when one parent has demonstrated an inability to make decisions that foster the best interests of the child or children.  Sole legal custody is very rarely awarded. 

It is important for parents to cooperate as much as possible with one another in custodial matters.  First, the parent who actually has custody of the children at any given time will make the decisions that are routine in nature.  If one parent has primary custody, by virtue of the fact that the children spend more time with that parent means that he/she is generally making more of the day-to-day routine decisions.  Second, it is absolutely vital for the custodial party (the party who has custody at any given time) to keep the other parent in the loop whenever the children are with him/her.  This does not mean that a detailed accounting is necessary each day.  It means that the parties should keep one another informed of events such as illness, a teacher’s note reporting that the child is doing poorly academically, a child having trouble sleeping over a period of two or three nights, a child falling and getting a significant cut or the child coming home from school upset because he or she is being bullied by another student.   If a parent fails to inform the other parent of events of this nature, it will cause more animosity with the other parent, increase distrust between the parties when the environment between them is often already marked by distrust and result in increasing the anxiety of the children who know when tensions are high between parents.  Moreover, the other party is likely to reciprocate in kind when the children are in his/her custody.  This can lead to the third important point.  If the parties cannot successfully co-parent and there are custody issues being frequently brought before the court, the court may change custody in favor of the parent that it believes is more likely to foster cooperation between the parties and behave in a manner that furthers the best interests of the children.      

There are many reasons why parties initiate custody actions.  The parties may try, but be unable to resolve the matter privately.  One parent may believe he/she has the right to unilaterally decide what the custody schedule will be. A parent may refuse the other parent custody of the children at all because the other parent has left the relationship and/or home.  He or she may refuse the other parent telephone access with the children.   In the alternative, the parties may be able to agree to a schedule, but are unable to resolve a legal custody issue such as the school(s) the children should attend or whether a child needs to be in a special education/gifted program.  A parent may feel forced to initiate a custody action because the other parent undermines and interferes with that parent’s custodial time by constantly and/or inappropriately texting, telephoning or emailing the children.

In making custodial decisions, the court is to be guided by determining the best interests of the children and how to best ensure that those interests are furthered. As a result, no custody order is ever non-modifiable or final.  Custody is always modifiable if such modification will serve to further the best interests of the children.

The statute provides that courts are to be guided by the following factors in making a custody determination:

• Which party is more likely to encourage and permit frequent and continuing contact between the child and the other parent;
• (i) The present and past abuse committed by a party or member of a party's household, and whether there is a continued risk of harm to the child or an abused party and (ii) which party is better able to provide adequate physical safeguards and supervision of the child;
• The parental duties performed by each party on behalf of the child;
• The need for stability and continuity in the child's education, family life and community life;
• The availability of extended family;
• The child's sibling relationships;
• The well-reasoned preferences of the child, based on his/her maturity and judgment;
• The attempts of a parent to turn the child against the other parent;
• Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs;
• Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child;
• The proximity of the residences of the parties;
• Each party's availability to care for the child or ability to make appropriate childcare arrangements;
• The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another;
• The history of drug/alcohol abuse of a party or party's household;
• The mental and physical condition of a party or member of a party's household; and
• Other relevant factors.

If there is a custody order in place and one of the parties is not following it, the other parent can file a petition seeking the court’s assistance in compelling compliance.  If the non-complying party’s behavior is chronic or egregious enough, the court may change the custody order.  Again, the court’s standard is always to be the best interests of the child.  A party may decide that filing a petition for contempt is necessary for a variety of reasons such as:  a party’s refusal to turn custody over to the other parent when it is that other party’s custodial time, chronic lateness in turning the children over, excluding a parent from the decision-making process, involving the children in custodial issues or making disparaging comments about the other parent to, or in the presence of, the children.

Relocation is defined as a change in the residence of a child that significantly impairs the ability of a non-relocating party to exercise custodial rights.[2]  Absent an agreement, a parent may not unilaterally relocate.  Pennsylvania has instituted, and adheres to, a formalized, step-by-step procedure if one parent desires to relocate.  If the court is called upon to determine whether to grant a proposed relocation, it must consider the following ten (10) factors, weighting the consideration of the factors that affect the safety of the child.  The factors are as follows:

1. The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child’s life;
2. The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child;
3. The feasibility of preserving the relationship between the non-relocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties;
4. The child’s preference, taking into consideration the age and maturity of the child;
5. Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party;
6. Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity;
7. Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity;
8. The reasons and motivation of each party for seeking or opposing the relocation;
9. The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party; and
10. Any other factor affecting the best interest of the child.

The party that is proposing the relocation must carry the burden of establishing that the relocation will serve the child’s best interest under these ten (10) factors.  Each party will need to meet his/her burden of establishing the integrity of his/her motivation in either seeking the relocation or contesting the relocation.[3]

It is best if the parents are able to resolve custodial issues without the intervention of the court because once the court is called upon to make the decisions, the parents actually relinquish control of the outcome and put the custody of their children into the hands of others. Unfortunately, however, the parents often cannot resolve these matters themselves and attorneys and/or the court become involved.  When this happens, it is important to be represented by an attorney who is skilled in the art of negotiation and is able to effectively work with the other side to reach an acceptable agreement. If a settlement is not possible, a party needs to be represented by someone who is accessible and responsive, who listens and understands the parent's concerns and needs, who has superior advocacy skills and who can successfully litigate the case.  Jeannie E. Fridey, Esquire possesses these skills and is the perfect choice in helping a parent to successfully navigate a custody dispute.