Custody: Frequently Asked Questions

Frequently Asked Questions Concerning Child Custody

How is child custody determined? Pennsylvania’s Child Custody Act sets forth that the court’s must consider the child’s best interest in making a custody determination by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child:

(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.

(2.1)  The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(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.

(16)  Any other relevant factor.

What’s the difference between legal and physical custody? Legal custody is the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions. Most, but not all, parents will share legal custody of their child.  Physical custody refers to the actual physical possession and control of a child. There are different types of physical custody including sole physical custody, primary physical custody, shared physical custody and supervised physical custody.

What if I have a criminal record? If a party seeks any form of custody, the court is required to consider whether that party or a member of that party’s household has been convicted of or has pleaded guilty or no contest or has pending charges for criminal certain offenses. If so, the court is required to consider the conduct and determine whether the person poses a threat of harm to the child before making any order of custody to that parent.

How do I seek custody of a child? A party seeking custody of a child must file a custody complaint with the court in the county where the child resides. Each county has different filing fees. Each parent will be required to file a Criminal Record / Abuse History Verification. There may be other forms required by local rules. Some courts require parties to attend parenting classes. Many courts require parents to attend a Custody Conciliation Conference prior to attending a custody hearing. The purpose of a Custody Conference is for the parents to attempt to resolve issues in dispute and if this is not possible to reach a temporary agreement pending the custody trial.

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