By Allen Thompson, Esq.
What is “Custody?”
There are two types of custody: physical and legal. Physical custody is self-explanatory; it is the time in which you are the physical custodian of the child. Often, this is referred to colloquially as “visitation.” Physical custody may be supervised or unsupervised. Supervision may be provided by the primary custodian, another family member, or even the state. Legal custody is the right to make major decisions in the child’s life, for example, religious upbringing, educational decisions, medical decisions, etc.
Best Interest of the Child
When determining custody, the best interests of the child is the overriding factor. The Court is not interested in mediating family feuds, but is only attempting to ascertain which environment is best suited for raising the child. While the Court will consider criminal histories, addictions, size of the residence, and income, it will only consider these factors to determine whether a child may be suitably raised in that environment. The Court will also consider which party is more likely to create tension and conflict, so maintaining a civil discourse with the other parent is always in your best interest.
The Custody Process
The first step in obtaining a child custody order is to file a Complaint for Custody. The complaint must be filed in the county in which the child(ren) have resided for the past 6 months. The residency of the parent filing does not matter.
Generally speaking, both biological parents may file custody actions, so long as neither parent’s parental rights have been terminated, either voluntarily or involuntarily. In some instances, a grandparent may bring a custody action. As a general matter, the rights of grandparents are not as broad as a biological parent, although grandparents’ rights are determined based on the particular circumstances. If you are a seeking physical or legal custody of your grandchild(ren), call a family law attorney to see if your particular situation allows you to file for custody.
Once the custody complaint has been filed, a conciliation conference will be scheduled with a Custody Master. During this conference, the Master will attempt to mediate an acceptable custody arrangement between both parties. If an arrangement is made, the Master will recommend the agreement to the Judge and the terms will be binding on both parties after the Judge signs the agreement and enters it as an Order. Even if one party disagrees, the Master will eventually recommend an Order to the Judge, who will then determine whether to sign the Order or not.
If one party is unhappy with the order, an appeal may be taken to the Court of Common Pleas. In that event, a trial will be held before the Judge. This is where you may bring in witnesses, introduce evidence, etc. The other parent will have the same opportunity to do so. Depending upon the age of the child(ren), they may be called to give their testimony, as well. After the trial, the Judge will deliberate and enter an Order, which will be binding on all parties.
Why bother with a custody order?
Often, individuals inquire as to whether a custody order is necessary, as the parents have arranged an agreement outside the court system. While the Court certainly encourages parents to do this, the major benefit to having a custody order is that it is legally binding and enforceable, even if the other party disagrees with the terms. Without an enforceable Order, the authorities are extremely unlikely to get involved in determining custody disputes. If, however, there is an enforceable custody Order, it is relatively easy to see if one party is in compliance.
If a party violates a custody order to a significant degree, a Contempt Petition may be justified. This petition will inform the Court that one party has failed to comply with the Order. While it is generally best to ignore minor or infrequent infractions, such as delays in drop-offs, phone calls, etc., more serious or consistent violations of the Order should likely be reported to the Court via Contempt Petition. If you already have a family law attorney, consult with your counselor. The more serious and/or frequent the violations, the more severe the penalty for the violation.
Modifying an existing order
Once a custody order is in place, either parent may attempt to modify it by filing a Petition for Modification. Here, you explain to the Court why you believe it is in the child’s best interest to modify the current custody order. While the law does not require a significant change in any circumstances to modify a custody order, it is generally best to be able to explain what circumstances have changed since the order you seek to modify. Once you file the Petition for Modification, the process is the same as if you had filed an initial custody complaint, and you will be scheduled for a conference with the Master.
It is important to note that most Courts will start with the presumption that both parents should enjoy 50/50 custody, both physical and legal. Thus, it is unlikely that one parent will successfully “take the child” from the other parent through a “custody battle.” As mentioned above, the best interest of the child is the guide; thus, the Court is not particularly concerned with who filed the complaint, whether the parties like each other, etc. So long as neither party has a significant criminal record that would affect the child (i.e. child endangerment, abuse, serious drug problem), both parties are likely to enjoy a fair amount of physical custody. Consult with a family law attorney about realistic goals in your case.
Finally, legal custody is nearly always shared jointly, at least initially. Because legal custody is defined much more closely to the constitutional rights of upbringing and management, the courts are generally very hesitant to grant one parent sole legal custody. As with any custody matter (or any legal matter), the particular facts of your situation will guide the process and determine the ultimate custody Order. Thus, it is worth discussing your options with a family law attorney before proceeding with a custody complaint, contempt or modification petition, or in attempting to defend against one of these.
If you’d like to speak to one of our family law attorneys about the custody process, initiating a custody claim, defending one, filing a contempt petition, or modifying an existing order, you may call (610) 845-3803 to set up an appointment.