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.
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.
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
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.
Any other relevant factor.
- Which party is more likely to encourage and permit
frequent and continuing contact between the child and another party.
- 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.
- 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 preference of the child, based on the
child's maturity and judgment.
- 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.
- 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
- The proximity of the residences of the parties.
- Each party's availability to care for the child or
ability to make appropriate child-care arrangements.
- 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.
- The history of drug or alcohol abuse of a party or
member of a party's household.
- The mental and physical condition of a party or member
of a party's household.
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.
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.