What are the different types of custody?
When the Court makes a decision about custody, it must decide who should have legal custody and who should have physical custody. Legal custody is the right to make major decisions affecting the child, including medical, religious and educational decisions. Physical custody is the right to have the child in your care. There are two types of 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 confer with one another before making major decisions concerning the child. There are four types of physical custody. Primary physical custody gives one party the right to have possession of the child most of the time. Shared physical custody gives two parties the right to have frequent contact with the child. Partial physical custody is the right to unsupervised visitation, and may be for a few hours every week or one day a week, every other week-end, etc. The Court usually orders supervised visitation only when the party is a known danger to the child, such as sexually molested or physically abused the child in the past. Such visitation can be supervised by a relative, a friend, and sometimes, in very serious situations, may be supervised by a county agency.
What is the procedure for getting a custody or partial custody order?
It is usually best if the parties can agree between themselves as to who should have legal custody and who should have physical custody. Sometimes a minister or a counselor can help parties come to an agreement. Once they reach an agreement, they can ask the Court to make the agreement into an Order of Court. If the parties cannot reach an agreement, one party may file a Complaint for Custody or Partial Custody.
In Allegheny County, when a Complaint is filed, the parties are usually ordered to attend a 4 hour education seminar (Generations) to help the parties learn to communicate better for the sake of the children. Most parties are also ordered to attend Mediation, where a professional mediator tries to get the parties to reach an agreement about custody. Victims of domestic violence, however, can be excused from mediation. If the parties reach an agreement, one of them usually hires an attorney to put the terms of the agreement in writing for both parties to sign and for the judge to sign as an order of court. If the parties cannot reach an agreement, a conciliation at court is scheduled. If the parties cannot reach an agreement with the court's help, the court may order a home study and a psychological evaluation of the children, their parents, and any other significant adults who are helping to raise the children. Psychological evaluations are very expensive and the cost will be allocated according to the parties’ income. If your income is very low, a judge can order the county to pay for them, although this is very rare. The judge also has the power to enter an interim order giving both parties the right to have some contact with the children pending a full custody trial. Custody trials sometimes last several days, and are very ugly. They seldom make the parties into better parents and are usually very hard on the child. After the trial, the Judge makes a final decision.
Who has the right to seek a custody order?
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.
What factors does the Judge consider when deciding a custody issue?
The decision must be based upon the best interest of the child. In other words, which party will provide a loving and nurturing environment for the child? Which party has the most interest and ability to care for the child's physical, educational, religious and emotional needs?
Here are the factors a Judge is to consider per 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.
- 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 child.
- 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.
- Any other relevant factor.
What factors does the Judge usually not 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. Judges are usually more interested in how the new boyfriend or girlfriend is treating the child.
How are custody orders "Modified and Enforced"?
Either party can file a petition to modify or change the court order, even so-called "final orders." The test is always the best interest of the child. Once a court order is entered, the parties can agree to change the court order without going back into court. However, once a court order is entered, one party cannot decide to decrease the other party's rights with regard to the child. Once a court order is entered, the primary caretaker is not permitted to move far away without first obtaining the consent of the other party or the consent of the court. If a court order is disobeyed by one party, the other party has the right to file a "Petition for Contempt". If the Judge finds that a party has disobeyed a court order, the Judge can put the party in jail and/or fine him or her, can order that party to pay the other side's attorney fees, and can order the misbehaving party to post a bond as a guarantee that the contempt will not happen again.