The Pennsylvania courts make decisions about child custody matters based on the best interest of the child standard. There are two forms of custody; legal custody and physical custody.
Legal custody – Is the ability to make important decisions about the important things in your child’s life: medical decisions, educational decisions and religious decisions. Most parents will have joint legal custody of their child; meaning, each parent has an affirmative obligation to discuss these important decisions with the other parent. The following forms of custody can be granted:
Physical custody is the actual physical possession and control of a child. There different types of physical custody are as follows:
A. Primary Physical Custody - The right to assume physical custody for a majority of the time. There are 365 overnights in a calendar year. Primary physical custody means that you have more than ½ of the overnights in a calendar year.
B. Partial Physical Custody – The right to assume physical custody of the child for less than the majority of the time.
C. Shared Physical Custody – 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. This is also referred to as a 50/50 schedule. There are 14 overnights every two weeks. Shared legal custody would mean that each party has seven of those overnights. This could be consecutively or non-consecutively. If the parties agree to a 50/50 schedule, they are in the position to determine the best schedule for the child. It could be week-one with one party and week 2 with the other party. Or another example is two nights with one party, two nights with the other party and alternating the next three nights.
D. Sole physical custody – This is the right of one individual to exclusive physical custody of the child.
E. Supervised physical custody – This occurs when the 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 other party.
F. Visitation – When this term is used in reference to child custody, it may mean partial physical custody, shared physical custody or supervised physical custody.
The statute provides, in ordering any form of custody, that the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
2. The present and past abuse committed by a party or member of the party’s household whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
3. The parental duties performed by each party on behalf of the child.
4. The need for stability and continuity in the child’s education, family life and community life.
5. The availability of extended family.
6. The child’s sibling relationships..
7.The well-reasoned preference of the child based on the child’s maturity and judgment.
8. The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
10. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
11. The proximity of the residences of the parties.
12. Each party’s availability to care for the child or ability to make appropriate child care arrangements.
13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
14. The history of drug or alcohol abuse of a party or member of a party’s household.
15. The mental or physical condition of a party or member of a party’s household.
16. Any other relevant factor.
AT WHAT AGE WILL MY CHILD’S OPINION BE CONSIDERED IN MAKING A CUSTODY DETERMINATION?
There is no specific age at which the Court automatically considers the opinion the child. As set forth in Title 23 Pa. C.S. §5328, the well-reasoned preference of a child, based on the child’s maturity and judgment must be considered by the Judge. However, this is never the only deciding factor. It is up to the Court to decide the best interest of the child and sometimes the child’s request might not be in their best interest.
The Court is always available to speak with a child however; this should not be the goal of the parent as it is a very difficult and emotional experience for the child. However, Judges make themselves available to speak to the child in an informal setting so as to listen to the child’s opinion. However, this is not the sole factor in making this determination. The child’s opinion will be considered however, it is ultimately up to the Judge to determine whether or not that opinion was well reasoned. For example, if a child only wants to stay one parent’s home because they allow the child to not have any boundaries, the Court would not consider that as the best interest. The child must be able to offer a well-reasoned opinion for their decision.