Custody

CUSTODY

Custody is generally viewed as consisting of two parts: physical custody and legal custody. Legal custody is the right to make decisions regarding the child. Typically legal custody is shared between both parents. Physical custody pertains to where the child physically resides. A parent that has the child overnight more than 50% of the overnights per year has "primary physical custody." Oftentimes today, parents choose to share custody on an equal or alternating basis. It is less common for the non-custodial parent to only have several weekends per month and many shared arrangements are entered these days.

CUSTODY HEARINGS. In most counties in Central Pennsylvania, the initial conference or "conciliation" is before an attorney who has been appointed as a conciliator and who is not a Judge. In some counties, a Judge will participate in a Pre-trial conference. At conciliations, the parties are encouraged to come to a mutual agreement regarding custody keeping their child's best interests in mind. If the matter cannot be resolved at that level, a full custody trial may be scheduled before a Judge. The issue at a custody hearing is what is in the "best interest of the child," not necessarily what the child wants and not what is fair to the parents. If the parties do not agree the court can consider all relevant facts in determining the best interest of the child.

FACTORS FOR DETERMINING CUSTODY
The following factors are enumerated in Pennsylvania's Title 23 Section 5328 when awarding custody. Judges must refer to the factors and make findings after a hearing as to which factors were important in the decision.

(a) Factors. --In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
  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.
  1.  Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
  2. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
  3. The proximity of the residences of the parties.
  4. Each party's availability to care for the child or ability to make appropriate child-care arrangements.
  5. 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.
  6. The history of drug or alcohol abuse of a party or member of a party's household.
  7. The mental and physical condition of a party or member of a party's household.
  8. Any other relevant factor.
(b) Gender neutral. --In making a determination under subsection (a), no party shall receive preference based upon gender in any award granted under this chapter.
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