How Does Pennsylvania Determine Child Custody?

Judges now consider 16 separate factors

For parents contemplating divorce, there’s no greater concern than what will happen to your children. The issue is complicated, and packed with emotional landmines. Most divorcing couples will need to remain connected to each other through their children, but that doesn’t mean it’s easy. A formal custody order provides the rules and guidelines governing your specific situation.

How is Custody Decided?

Historically, Pennsylvania applied a standard known as the “best interests of the child” to making custody decisions, a murky phrase that led to inconsistent and unpredictable outcomes. In 2011, Pennsylvania overhauled its custody laws to incorporate a more specific set of standards, as well as to formalize evolving case law.
Custody determinations are separated into two categories, legal and physical: 
  1. Legal custody is the “right to make major decision on behalf of the child,” and may be shared or sole.
  2. Physical custody is “physical possession and control of the child,” and may be shared, primary, partial, sole or supervised. The 2011 law does away with the concept of “visitation,” collapsing it into that of supervised physical custody.

The Factors in a Judge’s Decision

Courts are now required to consider 16 factors in awarding child custody, and judges must specify in their final order the factors they’ve considered. The order also has to be specific enough that law enforcement can enforce it. As a general rule, where safe for the child and both parents, there’s a preference for shared custody, though each case is considered in its own circumstances.
Factors include:
  • Which parent is more likely to maintain “frequent and continuing” contact between the child and the other parent
  • Any history of abuse, and which parent can best assure safety
  • Parental duties performed by each parent, and which parent is more likely to provide for the child’s daily physical and emotional needs
  • Availability of siblings and extended family
  • The level of conflict between the parties
  • History of drug or alcohol abuse, or physical or mental health needs of either parent or someone in their household
  • The child’s “well-reasoned” preference

Formulating a Plan

While not strictly required, it’s a good idea to detail your arrangements regarding your children in a written parenting plan. A parenting plan template is provided in the statute. This document will be formally incorporated into your custody order, and addresses issues such as custody arrangements, time and place of transferring custody, holiday schedules, responsibility for insurance and medical care, and how future decisions are to be made. A parenting plan is intended to be specific to your situation, and can incorporate anything you feel is important to include.
It’s important to formalize agreements regarding children—even for people who are able to continue to work amicably together. For one thing, circumstances can change and agreements can incorporate how these should be addressed, should they arise. Additionally, there may be details that parents don’t think about at the time of separation that become problematic when they come up, or concepts that are interpreted differently. For example: Does responsibility for a particular “evening” begin when school gets out, or a specific time? Who is in charge of getting the kids to their respective activities?
Ultimately, every custody situation is unique. Before you make any changes, it’s important to speak to a Pennsylvania family law attorney who can help you to plan and anticipate how the process works. If you'd like more general information about this area of the law, see our custody and visitation law overview.

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