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Types of Custody

There are two types of custody the Court must consider, legal custody and physical custody. Legal custody is the right to make major decisions affecting the child, including medical, religious and educational decisions. Physical custody is having the child in your care and control. The Court only has two options when determining legal custody, sole and shared. Sole legal custody gives one party the right to make the major decisions concerning the child. When two people share legal custody, they must discuss any legal custody issue with one another before making major decisions concerning the child. Physical custody, which is what people usually think of when someone says they have “custody of their child” can fall under several different types. Primary physical custody gives one party the right to have the child more than the other parent. If one party has Primary physical custody, the other party has partial physical custody, meaning they have the child less than the other parent.
Shared physical custody means that the parties have equal, or very close to equal custody time with the child. Sole physical custody means that only one parent has a right to physical custody with the child and is rarely awarded by the Court. Finally, the Court may award supervised visitation to one party, if circumstances require that award. Frequently, supervised visitation is ordered when one party has drug or alcohol abuse that has put the child in danger, has not been involved in the child's life, or is otherwise a known danger to the child. Supervisors are usually a relative or friend that is known to the child, but can be an agency in rare and serious circumstances. Most custody cases the parents are awarded either shared custody or one parent has primary and the other has liberal and frequent partial custodial rights.

Ways to Obtain an Order

Agreement by the parties is always best in custody matters. Many people believe that because they agree there is no need for an attorney or a custody order. However, reaching an understanding and agreement regarding custody is the best time to enter an Order, so that in the future when there is a disagreement there is an Order to fall back on. If you and your spouse have an agreement, we are able to draft and enter your terms as an Order of Court.

If you are unable to reach an agreement, one party may file a Complaint for Custody or Partial Custody. Each county has different requirements in filing, education and process. If you believe you need to file a custody complaint, it is important to speak to an attorney before any steps are taken so they can outline the process. It is also possible to obtain an interim order prior to conferences or hearings to establish rights for the parents while the matter is pending.

Who Can File for Custody

1.) Both natural parents as long as their rights have not been terminated through an adoption proceeding.
2.) Someone who has legally adopted the children.
3.) A grandparent if the child has been cared for by the grandparent for at least 12 months or if the child is substantially at risk.
4.) Anyone who has cared for the children for a substantial period of time. In addition, grand-parents have the right to seek visitation if one of the child's parents is dead, if the child's parents have been separated for 6 months or a divorce is pending, or if the child has lived with grandparents for at least 12 months.

Factors a Judge must consider when determining custody

The decision must be based upon the best interest of the child. There is no clear cut definition to what “best interest of the child” means. The Court will consider several factors in accordance with 23 PA.C.S §5328. The Judge's decision must discuss each factor. The ones that do not apply, the Judge must in writing state that it does not apply.

  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 and physical condition of a party or member of a party's household.
Any other relevant factor.

Factors the Court Does Not Usually Consider

1.) The relative incomes of the parties, as long as each party can provide for the basic needs of the child, such as food, clothing, and a warm and clean home.
2.) Gender. The Court no longer assumes that a young child should be in the custody of its mother.
3.) Infidelity, as long it is not harming the child. Although, a Judge may consider how the new boyfriend or girlfriend is treating the child.

Modification of a Current Order

If you have a current Order or Agreement, you may see a clause that states “this provision is fully modifiable pursuant to applicable law” or something similar. Custody Orders are always modifiable under the statute. Therefore, either party can file a petition to modify or change the court order, if they believe the best interest of the child is not served by the present order. If the parents agree on the modification, a Consent Order can be entered and litigation can be avoided. Note that the Court will not generally modify orders that are shared to one with a parent having primary custody absent a very compelling reason.

Custody litigation is specific to each county; therefore, it is necessary to obtain knowledgeable legal advice and representation. The attorneys at Myers Law Group, LLC have experience in custody law, from the most agreeable matters to the most difficult custody matters, our lawyers are able to provide top notch counsel.
If you have additional questions or would like to set up an initial consultation at the Myers Law Group, LLC, call 724-778-8800 or email