Child Custody has two parts: legal custody and physical custody.
Legal Custody
Legal custody is the right to make important decisions in the child’s life. Examples are decisions about the child’s health, education, certain activities and religion. Most often, legal custody is shared by both parents. In rare cases, one parent may be granted sole legal custody. This usually involves an extreme circumstance such as a parent’s incarceration, addiction or abuse towards the child.
Physical Custody
Physical custody concerns the schedule for how the child’s time will be split between the parents and where the child will live according to an agreed or court ordered schedule. Physical custody can take many different forms. In the best cases, parents are able to get past their difficulties with each other and work together for the best interests of the child. Parents sometimes overlook how difficult going between houses can be for the child.
Joint Custody
Joint custody is the most common form of physical custody. In some cases, the parents have 50/50 custody of the child. In other cases, one parent has more than 50% of the custodial time. This parent has primary custody of the child. Sole physical custody is only granted in rare cases.
Physical custody schedules can change through the year. For instance, the schedule during the school year might be very different than the summer schedule depending on the child’s age, the parents’ work schedule and the child’s summer activities.
Child Custody Agreement Process
If a Child Custody Agreement can’t be negotiated between spouses and litigation is needed, a three step process addresses the issue:
- Mediation
- Custody Conciliation Conference
- Hearing before a Judge
The goal of each step is to reach an agreement that is in the best interests of the child or children.
Mediation
Prior to mediation, both parents attend an orientation program that educates them on the impact of divorce/separation on children. The parents then attend mediation which is a confidential process. The mediator does not represent either parent and tries to aid the parents in reaching an agreeable custody solution. The mediator cannot testify in court if the process does not end in an agreement. The mediator is selected by the Court, although the parents have the option to choose from a list of Court-approved mediators. If an agreement is reached, the mediator will send the terms of the agreement to each parent’s lawyer for inclusion in an Agreed Order.
Custody Conciliation Conference
If mediation does not result in an agreement, a Custody Conciliator will meet with both the parents and their lawyers. The conciliator may speak with the child as well. If an agreement is reached, the conciliator drafts an Agreed Order or directs the parents’ attorneys to jointly draft the Agreed Order. If an agreement cannot be reached, the matter goes to a hearing before a Judge to decide custody. The conciliator’s findings are submitted to the Court in a written report. The Judge may consider the conciliator’s findings in reaching a decision but is not required to do so.
Hearing Before a Judge
This is a very stressful step in determining custody. The good news is that most cases are resolved before this final step. This is a formal hearing before a Judge who will hear evidence and decide what custody schedule is in the child’s best interest. The Judge must consider sixteen factors in reaching the custody decision. The sixteen factors include:
- The level of cooperation between the parties
- Which parent is more likely to maintain a stable and loving relationship with the child?
- Which parent is more likely to provide the daily care—physical, emotional and developmental—for the child?
- The Judge’s evaluation of the child’s well reasoned wishes based on the child’s age and maturity. Many people think that at a certain age the child gets to choose. This is not true under Pennsylvania law. It’s just one of sixteen factors the Judge considers.
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To discuss your concerns about Child Custody and further information about the sixteen factors, contact us at 610-639-1666.
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