WHAT TYPES OF CUSTODY ARE THERE?

There are two types of custody:

• Physical custody
• Legal custody

Physical custody refers to the physical possession and control of the child.

Legal custody refers to the right to make major decisions (such as educational, medical, religious) on behalf of the child.

There are four types of physical custody:

• Primary
• Partial
• Visitation
• Shared

Primary physical custody refers to the party with whom the child primarily resides.

Partial physical custody refers to the right of the other party to take the child away from the primary custodian (usually for nights, weekends, vacations, etc.).

Visitation is the right of a parent to visit (usually supervised) with the child at the child's primary residence or another location, but does not include the right to remove the child from the primary custodian's control.

Shared custody is a physical custody arrangement in which custody of the children is scheduled to assure regular, frequent contact with both parents, often an equal-time alternating period schedule.

Legal custody is often agreed to be or ordered to be shared between the parents, when they are able to communicate with each other even on the most minimal basis, as most often the courts prefer that parents consult with each other before making major decisions on behalf of the child. It is rare that one parent is granted sole legal custody of a child.

DO I HAVE TO CONSULT THE NON-CUSTODIAL PARENT BEFORE I MAKE DECISIONS?

When making major decisions on behalf of the child, the non-custodial parent (parent with less than 50% of the time physical custody of the child) must be consulted if there is a court order providing for shared legal custody of the child. Even if there is no shared custody order, generally a non-custodial parent should be consulted, as major decisions concerning the child should involve the other parent when feasible. If in a shared custody situation the parents are unable to agree upon a decision concerning a major life issue for the child, either parent may file a petition seeking an order from the court.

Each parent is generally permitted to make normal day-to-day decision on behalf of the child, while the child is in the parent's physical custody.

DOES THE NON-CUSTODIAL PARENT HAVE ACCESS OT THE CHILD'S MEDICAL AND SCHOOL RECORDS?

Each parent is generally entitled to be provided access to the child's medical, dental, school and religious records. There is an exception in certain abuse cases when the child's address needs to remain private, or in other cases when the courts decide that restricting access to these records is in the bet interests of the child.

IS THERE A RELATIONSHIP BETWEEN SEEING THE CHILDREN AND PAYING CHILD SUPPORT?

In a word, NO. Even if a parent is not complying with a support order, if there is a custody order allowing him/her to see the child, the parent must be permitted to exercise his or her court-ordered custody of the child. If there is a problem with the support, the parent should proceed through Domestic Relations to file a support complaint, a petition to modify or a contempt petition.

If a person who is obligated to pay support is not seeing the child, the person must still pay support. If there is a problem with the custody order, or no custody order has been entered, the parent should file a custody complaint, a petition to modify or a petition for contempt.

WHEN IS A CUSTODY ORDER MODIFIABLE?

A custody order is modifiable when a change in the custody arrangement is in the best interest of the child. There need not be a specific change of circumstances. The parent seeking to modify the order must explain to the court in the context of a modification proceeding why the present order is no longer in the child's best interest.

WHAT IF THE CUSTODIAL PAREN WANT TO MOVE FROM THE AREA WITH THE CHILD?

If there is a custody order in effect, the parent seeking to move out of the local area with the child must file a petition for permission to relocate the child and, if the terms of the custody order must change, a petition to modify custody.

If there is no custody order in effect, the parent with whom the child lives should notify the other parent within a reasonable amount of time of the desire to move out of the local area. If the other parent objects, the parent seeking to move will have to file a complaint for custody and a petition to relocate.

If the other parent objects to the move, before the child is permitted to move, a hearing must be held as to whether the move is in the child's best interest. The burden of proof is on the parent seeking to move the child. When deciding whether the move is in the child's best interest, the court will consider the reasons for the move, the impact of the move on the child and the moving parent, the reasons why the other parent is objecting to the move, and the availability of adequate, alternate custody arrangements if the move is permitted.

If the other parent does not consent to the move, he/she should file a petition seeking to prohibit the planned move of the custodial parent until after a hearing is held as to whether the move is in the child's best interest.

WHERE SHOULD THE ACTION BE BROUGHT IF THE NON-CUSTODIAL PARENT AND I LIVE IN DIFFERENCE STATES (OR COUNTIES)?

The action should be brought in the home state of the child. This is the state (or county) in which the child has lived for the preceding six months. There are exceptions:

• If it is in the child's best interest that the action be brought in another state (or county) and the child and at last one parent have significant contacts within that state;
• If the child has been abandoned;
• If it is necessary to protect the child from mistreatment, abuse or neglect.

If the child was absent from a parent's home state because someone wrongfully removed or kept the child, the custody action should be brought in the remaining parent's home state. Pennsylvania has adopted the UCCJEA relating to child custody and enforcement proceedings.

WHAT CONSTITUTES AN EMERGENCY WHEN SEEKING IMMEDIATE CUSTODY OF A CHILD?

An emergency exists when the child's life, health or welfare is in immediate danger.

WHAT RIGHTS DO GRANDPARENTS HAVE IN A CUSTODY CASE?

A grandparent may file a petition for physical and legal custody of a grandchild if the grandparent's relationship with the child began with the consent of the parents or by an order of court. The grandparent must also have assumed the responsibilities of the parent for 12 months or more, or the child must be at risk due to abuse or neglect.

The court may give a grandparent custody where it is not in the child's best interest to be in the custody of either parent, and it is in the child's best interest to be in the custody of the grandparent.

If there parents have been separated for 6 months or more, if there is a divorce action pending, or if the child has resided with the grandparents for 12 months or more, the grandparents may obtain partial custody or visitation rights. If a parent is deceased, the parents of the deceased parent may also obtain partial custody or visitation rights.

The grandparents' partial custody or visitation must be in the child's best interest and must not interfere with the relationship between the child and the custodial parent. Each county in Pennsylvania has its own set of procedures which grandparents (or other non-parents seeking custody or visitation) must follow in order to obtain a court hearing on the issue.

WHAT ARE THE FACTORS IN A CUSTODY DETERMINATION?

The standard in a custody action is the child's best interest. Therefore, all factors and information concerning the child and the parties, which legitimately impact the child, are relevant. The weight given to each factor in any case will depend upon the unique facts and circumstances of that case.

HOW MUCH WEIGHT OR EFFECT IS GIVEN TO THE CHILD'S PREFERENCE?

The child's preference is one of many factors. The weight given to the child's preference will depend upon the child's age, competency, maturity, and the reasons, communicated by the child, for the child's preference. There is no "legal age" at which a child's preferences in a custody action will automatically be recognized by the court.