Custody involves an adult parent’s right, or in some cases, a grandparent’s or other adult third party’s right, to physically possess and control a child, as well as make major decisions on behalf of a child. In Pennsylvania, the Court, pursuant to Chapter 53 of Title 23 of the Statues of Pennsylvania, exercises jurisdiction over all custody actions involving a child. These courts are often labeled “Family Division” because they strictly exercise jurisdiction over family matters, such as divorce, support, equitable distribution of marital property, and of course, custody of children.
A custody dispute generally arises when the child’s parents, if married, divorce or separate, or if unmarried, separate, and have a fundamental disagreement involving the parenting of the child or the amount of time each parent spends with the child. A custody action commences when one parent, or in some cases, a grandparent or other adult third party, files a custody complaint in the Court having venue over the action. After the custody complaint is filed, the parties must adhere to the Court’s processes and procedures, which vary from county to county, throughout the life of the custody action.
When a party files a custody complaint, he or she must acknowledge that two categories of custody exist, and that within those two categories, custody is further broken down into subcategories. These categories of custody are defined by 23 Pa.C.S. § 5322. The two categories of custody and their respective subcategories are explained below.
The first category of custody, physical custody, often referred to as visitation, is defined as the actual physical possession and control of a child. Physical custody of a child is further broken down into sole physical custody, shared physical custody, primary physical custody, partial physical custody, and supervised physical custody.
Sole physical custody is defined as the right of one parent to exercise exclusive physical possession and control of a child. Currently, the Court is reluctant to award a parent sole physical custody of a child unless the other parent is a violent criminal, a sex offender, a drug abuser, has a history of physically and mentally abusing the child and/or other parent, or is homeless or incarcerated. Surprisingly, even when the “bad” parent falls into one of the undesirable categories described in the previous sentence, the Court may still award the “bad” parent supervised physical custody.
Supervised physical custody is defined as 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 “bad” parent. In many instances, a Court will conduct a periodic review to determine whether the parent exercising supervised physical custody may transition to unsupervised physical custody.
The Court’s current, and most popular, trend is to award shared physical custody to both parents. Shared physical custody is defined as the right of more than one parent to assume physical custody of the child, with each having significant periods of physical custodial time with the child. Shared physical custody is most often described as “50/50” custody. The most popular shared physical custody schedule is the rotating “5/2/2/5” shared physical custody schedule. Under the “5/2/2/5” schedule, Parent A exercises physical custody of the child for five (5) consecutive days, followed by two (2) consecutive days with Parent B, followed by two (2) consecutive days with Parent A, and finally, followed by five (5) consecutive days with Parent B. The “5/2/2/5” schedule continuously rotates until the child reaches eighteen (18) years of age, unless one parent seeks to modify physical custody of the child through subsequent court action. Shared physical custody is often in the best interest of the child where both parents are mentally and physically fit to care for the child, equally nurture the child, and promote a healthy mental and physical lifestyle for the child.
The final two subcategories of physical custody are primary physical custody and partial physical custody. Primary physical custody is defined as one parent’s right to assume physical custody of the child for the majority of the time. Partial physical custody is defined as one parent’s right to assume physical custody of the child for less than the majority of the time. The Court will often award primary physical custody to one parent and award partial physical custody to the other parent where the other parent’s work schedule prevents that parent from exercising shared physical custody of the child. In addition, the Court may award primary physical custody to one parent and award partial physical custody to the other parent where the other parent relocates to another county or state and the distance between the other parent and the child disrupts transportation of the child or the child’s education.
The second category of custody, legal custody, is defined as a parent’s right to make major decisions on behalf of the child, including, but not limited to, medical, religious, and educational decisions. Legal custody of a child is further broken down into sole legal custody and shared legal custody. A parent’s right to consent or object to a child undergoing a complicated medical procedure, to decide whether the child will be baptized as a Catholic or as a Protestant, and the choice of where the child will attend school, are considered equally as important as exercising physical custody of the child.
Sole legal custody is defined as the right of one parent to exercise exclusive legal custody of the child. Similar to sole physical custody, a Court is often reluctant to award a parent sole legal custody unless the other parent does not have the mental capacity to make major decisions on behalf of the child, or the parent is a violent criminal, a sex offender, a drug abuser, and/or has a history of physically and mentally abusing the child and/or other parent. Absent one parent possessing one or more of the “bad” characteristics described in the previous sentence, a Court will often award shared legal custody to both parents. Shared legal custody is defined as the right of more than one parent to exercise legal custody of the child. Parents exercising shared legal custody of a child share the right to make major decisions on behalf of the child, including, but not limited to, medical, religious, and educational decisions. Shared legal custody is in the best interest of the child where both parents are level-headed and mentally fit to make major decisions on behalf of the child. The Court views successful co-parenting, which is the process of separated, divorced, or unmarried couples sharing the duties of parenting, as being in the child’s best interest.
In conclusion, although lawmakers, lawyers, and judges have developed the aforementioned categories of custody in an effort to resolve custody disputes between estranged parents, the Court frowns upon “parenting” other people’s children. Therefore, the Court has developed and orders parents to participate in education and mediation programs tailored toward resolving custody disputes if the parents cannot come to an agreement outside of the judicial system. However, the custody process is complicated and in order for you to completely understand your rights and responsibilities as a parent involved in a custody dispute, you should contact one of our experienced lawyers to review your case and discuss your options.