Custody

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Sommer & O'Donnell > Areas of Practice > Custody

Child Custody agreements, negotiations and legal support from experienced Central PA Divorce Attorneys.

If you’re going through a breakup in Pennsylvania and there are children involved, it’s important to know the child custody laws in this Commonwealth. The same suggestion applies if you and your former mate split up a while ago but need a new parenting arrangement because one of you have moved, remarried or otherwise had a major life change. Perhaps the need to revisit custody isn’t about either parent but about the child’s wish to live with one parent full time or another relative entirely. Any of these scenarios requires you to consult with Attorney Sommer or Attorney O’Donnell at Sommer & O’Donnell.

Pennsylvania considers several factors in determining child custody. These factors were enacted by the Legislature and are contained in the Pennsylvania Code. It is ideal for all parties involved for the parents to reach an agreement on child custody without needing the Court to decide. However, that is not always practicable and the Court must decide. In reaching its decision, the Court will consider the “best interests” of the child to determine custody and examine the sixteen (16) custody factors in the Custody Act.

There are two main forms of custody, legal and physical: (See, 23 Pa.C.S.A. § 5322(a))

Legal custody is the right to make major decisions about the child, which typically include educational, religious, and medical decisions. Legal custody can be sole (given to one parent alone) or can be shared.
Physical custody is the actual physical possession and control of a child (a person under 18 years old). It refers to the person with whom the child lives, either all of the time or part of the time. Sole physical custody is when one parent alone has physical custody (the other parent may get visitation) and shared physical custody is when both parents share physical custody, with each parent having significant periods of time with the child. Custody can also be divided into primary (when one parent has the child for the majority of the time) and partial (when one parent has the child for less than a majority of the time). Physical custody can also be supervised, when an agency or another adult monitors the interaction between the parent and child.

Advantages of obtaining a Custody Order

There may be advantages to obtaining a custody order, including:

Gaining access to your child if the other parent has control of the child;
Having a fixed custody schedule (telling each parent when they can visit and/or take possession of the child) that is enforceable by a Judge;
The right to make legal decisions about your child; and
The right to have your child live with you.

Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day. But if you file for custody, the other parent may also request these rights and it will be up to the Judge to decide.

There are also many reasons people choose not to get a custody order from a Court. Some people decide not to get a custody order because they don’t want to get the Courts involved, they have an informal agreement with the other parent that works well for them, or they may think that going to Court will result in the other parent being awarded more custody or visitation rights than they are comfortable with. If you decide not to get a Custody Order, you and the other parent may likely have an equal right to make decisions and decide on living arrangements.

To find out if that is best in your situation, please contact Sommer and O’Donnell to set up a consult with Attorney Sommer or Attorney O’Donnell to to seek legal advice.

16 Factors Used to Determine Child Custody in Pennsylvania

Here are 16 factors the courts weigh carefully when determining custody:*

(a) Factors.–In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving substantial weighted consideration to the factors specified under paragraphs (1), (2), (2.1) and (2.2) which affect the safety of the child, including the following:

Which party is more likely to ensure the safety of the child.
The present and past abuse committed by a party or member of the party’s household, which may include past or current protection from abuse or sexual violence protection orders where there has been a finding of abuse.
1. The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
2. Violent or assaultive behavior committed by a party.
3. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party if contact is consistent with the safety needs 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, except if changes are necessary to protect the safety of the child or a party.
The availability of extended family.
The child’s sibling relationships.
The well-reasoned preference of the child, based on the child’s developmental stage, maturity and judgment.
The attempts of a party to turn the child against the other party, except in cases of abuse where reasonable safety measures are necessary to protect the safety of the child. A party’s reasonable concerns for the safety of the child and the party’s reasonable efforts to protect the child shall not be considered attempts to turn the child against the other party. A child’s deficient or negative relationship with a party shall not be presumed to be caused by the other party.
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 or self 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.

Are you struggling to understand what your custody options might be? Every custody case is different, so don’t rely on advice from family or friends. If you are facing a custody issue, work with our divorce lawyers so we can discuss the specifics of your unique situation. We’re ready to help.
*23 Pa.C.S.A. § 5328

Relocation in Custody Cases:

In November 2010 the Commonwealth of Pennsylvania passed a statute called the Child Custody Act which has a specific provision about relocation of a child(ren). Relocation means a change of residence for the child that would significantly impair the ability of a nonrelocating parent to exercise custodial rights. The Child Custody Act now has ten factors in determining relocation. This gives the court an expanded view of what relocation means not only to the child but also to those influencing the child’s life. This allows the court to have more discretion when deciding if the child should be allowed to relocate.

Those factors are as follows:

The nature, quality, and extent of involvement of the child with both parties and other people who are significant in the child’s life.
The age, developmental stage, and needs of the child that could impact the child’s physical, educational, and emotional development.
The ease of preserving the relationship between the child and nonrelocating party in terms of logistics and finances.
The child’s preference, depending on the child’s age.
If the parties have a pattern of conduct that promotes or harms the relationship with the child and parties.
If relocation will enhance the quality of life for the relocating party (including financial, educational, or emotional benefits).
If relocation will enhance the quality of life for the child (including financial, educational, or emotional benefits).
Motivations of each party in terms of the relocation.
Past or present abuse.
Other factors affecting the best interest of the child.

23 Pa.C.S.A. 5337(h)

The effect of the Relocation Statute:

There are potential negative consequences for not following the statute when relocating with a child. Under the relocation statute, the party intending to relocate must give everyone who has custody rights to the child at least 60 day’s notice before relocating, unless it is an emergency or to protect from abuse. If these guidelines are not followed and the court does not have the opportunity to complete the 10 factor analysis, it is possible that a court could force a child back to the nonrelocating party.

If you or someone you know is thinking about relocating or want more information on the Pennsylvania Child Custody laws, contact Sommer and O’Donnell to speak to an experienced family law attorney. It would be important for us to understand the facts of your individual custody arrangement before advising how relocation would apply to you.

Relocating with your child after a custody order is in place?

How do I notify the other parent that I want to relocate?

Pennsylvania law defines relocation as “a change in a residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights.”* Unlike some other states, Pennsylvania’s relocation laws do not specify whether or not they only apply to people who want to relocate out of state or people who want to move beyond a certain mile radius. We recommend calling our office to consult with an experienced family law to find out if your planned move would fit the definition of a “relocation” according to Pennsylvania law.
If you want to move and you have a custody order in place, Pennsylvania says that a relocation (as defined above) cannot happen unless everyone who has custody rights to the child consents to the move or the judge approves the relocation.** There are very specific requirements of how you have to notify those who have custody rights.
The notice must be sent by certified mail, return receipt requested, and it has to be given no later than:
- the 60th day before the date of the proposed relocation; or
- the 10th day after you know about the relocation but only if;
  - you did not know and could not reasonably have known of the relocation in enough time to give the 60-day required notice; AND
  - it is not reasonably possible to delay the date of relocation to meet the 60-day notice requirement. ***
The following information, if available, must be included with the notice of the proposed relocation (Note: If you are victim of abuse, and your address was kept confidential by the court, check with an attorney to see what things from the list below you can leave out:
- The address of the intended new residence and the mailing address (if different).
- The names and ages of the people who currently live, or intend to live, in the new residence.
- The home telephone number of the intended new residence, if available.
- The name of the new school district and school.
- The date of the proposed relocation.
- The reasons for the proposed relocation.
- Any other information which you think is appropriate to include.
A “counter-affidavit” which can be used by those who receive the notice to object to the proposed relocation and the modification of a Custody Order. A warning to the non-relocating party that if s/he does not file an objection with the court to the proposed relocation within 30 days after receipt of the notice, that s/he can no longer object to the relocation.****

* 23 Pa.C.S.A. §5322(a)
** 23 Pa.C.S.A. § 5337(b)
*** 23 Pa.C.S.A. § 5337(c)(1),(2)
**** 23 Pa.C.S.A. § 5337(c)(3)

If you don't provide proper notice to the non-relocating party, the Judge can treat this in one of the following ways:

as a factor in making a decision regarding the relocation;
as a factor in determining whether custody rights should be modified;
as a reason for ordering the return of the child to the non-relocating party if you already relocated without reasonable notice;
as a basis for ordering you to pay reasonable expenses and counsel fees of the non-relocating party’s objection to the relocation; and/or
as a basis for contempt and sanctions (penalties) against you.*

However, the Judge must also consider whether or not your failure to provide reasonable notice was caused in whole, or in part, by abuse. If so, the Judge should consider that as a reason to “ease up” on you when considering which of the above should apply in your case.**

* 23 Pa.C.S.A. § 5337(j)
** 23 Pa.C.S.A. § 5337(k)

If the other parent objects to the move, what happens?

If the other parent/person with custody rights objects, s/he must file an objection with the court within 30 days of receiving your proposed relocation notice and s/he has to serve a copy to you by certified mail, return receipt requested. Then, the Judge will hold a Hearing to decide if you can relocate.*

Note: Even if no objection is filed, you have to file certain documents with the court before relocating.**

Normally, the Judge will hold the Hearing after receiving the other parent’s objection and before the relocation occurs but it is possible that the Judge could decide on his/her own that a Hearing is necessary and hold a hearing even before receiving the other parent’s objection.

In some cases, if the Judge believes that there are emergency circumstances, the Judge could approve the relocation first and then hold a Hearing to make a final decision.*** (However, this doesn’t necessarily mean that the Judge’s ultimate decision after a Hearing would favor you.)****

If the Judge approves the proposed relocation, s/he will modify any existing custody order or establish the terms and conditions of a Custody Order.*****

*23 Pa.C.S.A. § 5337(d)(2)
**23 Pa.C.S.A. § 5337(e)
***23 Pa.C.S.A. § 5337(g)(1)-(3)
****23 Pa.C.S.A. § 5337(l)
*****23 Pa.C.S.A. § 5337(g)(4)

Grandparents’ rights under Pennsylvania family law?

There are numerous different scenarios where a grandparent will have standing to seek rights with regard to their grandchildren:

If the grandchildren have resided with the Grandparents for more than 12 months and then were removed from the home;
If either of the child’s or children’s parents are deceased;
If the parents have never married, are married but separated for more than six months, or are divorced.

The PA statute on grandparents’ rights also states that Grandparents can petition (and have adequate legal standing) for physical and legal custody of a grandchild. The court, as is the standard in Pennsylvania custody cases, determines what is in the best interest of the child in making this determination. The grandparent, however, has to have a significant relationship with the child.

Pennsylvania has codified standing for Grandparents via statute. 23 Pa.C.A. 5324 provides that grandparents and great grandparents have standing for any form of physical or legal custody as follows:

(i) whose relationship with the child began either with the consent of a parent of the child or under a court order;(ii) who assumes or is willing to assume responsibility for the child; and(iii) when one of the following conditions is met:(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or(C) the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.

Pennsylvania has gone even one step further and provides that grandparents or great grandparents can also file for any form of custody in the following situations:

where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;
where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage; or
when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after the removal of the child from the home.

23 Pa.C.S.A. 5325

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