A top concern of divorcing parents is figuring out the arrangements they will make for the custody of the children. But when parents cannot agree on what the custody arrangements should be, how does the court decide this issue? The preliminary answer is that… it depends – no two cases are the same, so the considerations and decision-making factors vary with each case. However, some guidelines are followed in every child custody case and certain general truths that can be counted on in the process.
Before answering the question of how custody is determined, it should be pointed out that there are actually two types of custody – legal custody and physical custody. Legal custody involves the parent’s right to make the important decision for the child, including but not limited to those involving the child’s health, education or religious affiliation. Physical custody is as the name implies, the actual physical presence of the child with the parent and whose control and care the child is in under at any given time. Legal custody is only either shared between both parents, with each parent having equal right to make the important decisions for the child, or vested solely in one parent. Physical custody, on the other hand, has many permutations, from primary custody to partial custody to limited or supervised visitation only.
In most cases, the divorcing parents’ main focus is on the resolution of the physical custody schedule and the sole standard that governs child custody determinations is what is in “the best interest of the child.” Though it is often hard for clients to accept, in many cases, doing what is in the best interest of the child is not compatible with the parents’ wishes. But the truth is that the Pennsylvania family court system does not make decisions regarding child custody based on the parents’ requests; the decisions are made solely based on what is best for the child.
So, what does “best interest of the child” mean and how is it determined? It is important to note that child care and custody involves more than just providing the children with their basic survival needs, like food, clothing and shelter. Children also require love, support, and encouragement in order to be able to live their best lives. With this in mind, the Pennsylvania legislature came up with 16 detailed statutory factors that all judges now consider when ascertaining the level of physical custody each parent should have. These factors put substantial emphasis on the stability and continuity of the life of the child and the parental duties carried out by each parent, duties which include caring for the child’s emotional, educational, medical, and physical permanent welfare. Some of the more important factors considered include which party is more likely to encourage and permit frequent and continuing contact with the other parent, the relationships of the family members, whether one party has attempted to thwart the relationship between the child and a parent, the proximity between the parties’ residences and even the preferences of the child when such preference is based in “good reasons” with a consideration of the child’s age and maturity.
Finally, contrary to popular belief, there is no gender preference in determining child custody. In the past, there was a traditional presumption that mothers would be the first choice as the primary caregiver for the children. This presumption faded away decades ago and now, parental gender does not factor into how and to whom child custody is granted in Pennsylvania. Additionally, Pennsylvania is one of the few states to recognizes that the nuclear family has significantly changed and that it now can include grandparents, aunts, uncles and even non-familial third parties who can “step into the shoes of the biological parent,” when the situation warrants it.
If you have questions or need assistance with a Pennsylvania child custody case, please give us a call. Our experienced Pennsylvania family law practitioners would be happy to provide a free consultation regarding your child custody issues.
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