Pennsylvania’s Child Custody law applies to married parents, married but separated parents, and parents who have never been married. The laws may also apply to biological and non-biological parents. For purposes of this blog article, individuals seeking or granted Child Custody will generally be referred to as “parents.The following are some of the most frequently asked questions regarding Pennsylvania’s Child Custody law.

How is Child Custody In PA defined?

Child Custody may be defined differently in different states. In roughly half the states, including the state of Pennsylvania, Child Custody is divided into two types of custody, Legal Custody and Physical Custody.

What is the difference between Legal Custody and Physical Custody?

In Pennsylvania, Legal Custody is the right to make major decisions on behalf of a child, including, but not limited to, those involving medical, educational, or religious issues.

Physical custody means the actual physical possession and control of a child. It refers to the amount of time a child spends living with a parent and includes the rights and responsibilities that generally attach to parents with whom a child lives, such as those involving the provision of housing, food, and clothing.

Can Legal Custody be shared by a child’s parents?

Yes. There are two types of Legal Custody, Sole and Shared. Sole Legal Custody gives one parent the right to make all the major decisions that concern the child, while Shared Legal Custody requires both parents to confer and come to an agreement before such major decisions may be made.

What if I share Legal Custody with my child’s other parent, but we cannot agree regarding these major decisions?

Though the court will take into account the parties’ ability to share the decision-making process when it awards shared Legal Custody, relationships between parties can change over time. If parents who share Legal Custody cannot agree on major decisions, they may need to petition the court for assistance or, if need be, for modification of the Legal Custody award.

Can Physical Custody be shared by a child’s parents?

Yes. There are several kinds of Physical Custody, including Shared Physical Custody.

• Sole Physical Custody is the right of one parent to exclusive physical custody of the child.
• Shared Physical Custody gives both parents the right to physical custody of the child for significant periods of time.
• Primary Physical Custody gives one parent the right to physical custody of a child for the majority of the time. This parent is referred to as the Custodial Parent. The other parent in a Primary Custody situation is referred to as the Non-custodial Parent.
• Partial Physical Custody gives a parent the right to assume physical custody of the child for less than the majority of the time. This parent is awarded non-supervised part-time physical custody or visitation rights by the court.
• Supervised Partial Physical Custody, or what could also be characterized as supervised visitation, may be awarded when a parent is considered a known danger to the child. The supervision of this custody may be performed by an adult agreed upon by the parties or by an agency or person chosen by the court.

Who is entitled to seek custody of a child?

The following persons are entitled to seek Physical or Legal Custody of a child:

• A parent of the child
• A person who stands in loco parentis (defined below) to the child
• A grandparent of the child under certain conditions (discussed below)

These parties are only entitled to seek custody, however. An individual will be granted custody only if the court determines that such custody is in the best interest of the child.

What does in loco parentis mean?

In loco parentis means “in the position of a parent.” Under Pennsylvania law, a party stands in loco parentis to a child when the party assumes the responsibilities of a parent without going through the formality of a legal adoption. Whether these requirements have been satisfied depends upon the particular facts of an individual case.

For example, the lesbian partner of a biological parent may be found to be in loco parentis when the partner lived in the same household with the child and the child’s biological mother and took a significant role in the child’s upbringing by playing with the child, taking the child to school and sporting events, providing emotional support, and helping the child with homework.

When is a grandparent entitled to seek custody of a child?

A grandparent may be entitled to seek custody of a child if the grandparent is willing to accept responsibility for the child and has a relationship with the child that began with the consent of a parent or as a result of a court order. In addition, one of the following three conditions must also be met:

1.  The child has been determined to be a dependent child under Pennsylvania law relating to juvenile matters,
2. The child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity, or
3. The child was removed from the grandparent’s home by the parents after having lived with the grandparent for at least 12 consecutive months. In this case, the grandparent may seek partial or supervised physical custody as long as the petition for custody is filed within six months after the child’s parents removed the child from the grandparent’s home.

Again, grandparents are only entitled to seek custody if these conditions are met. The court will grant custody to a grandparent only if it determines that such custody is in the best interest of the child.

How does a court determine what custody arrangement is in the best interest of my child?

In determining what custody arrangement is in the best interest of a child, Pennsylvania courts must consider every one of the following 15 factors as well as any other factor relevant to the custody arrangement:

1. Which parent is more likely to encourage and permit frequent and continuing contact between the child and the other parent;
2. Present and past abuse committed by a parent or a member of the parent’s household;
3. The parental duties performed by each parent on behalf of the child;
4. The need for stability and continuity in the child’s education, family, and community life;
5. The availability of an extended family;
6. The child’s sibling relationships;
7. The child’s well-reasoned preference, based on the child’s maturity and judgment;
8. The attempts of one parent to turn the child against the other;
9. Which party is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child;
10. Which party is more likely to attend to the child’s daily physical, emotional,  developmental, educational, and special needs;
11. The proximity of the residences of the parties;
12. Each parent’s availability to care for the child or make appropriate child-care arrangements;
13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with each other;
14. History of drug or alcohol abuse of a parent or a member of a parent’s household;
15. The mental and physical condition of a parent or a member of the parent’s household;
16. Any other relevant factor.

Can I be denied custody of my child because of my sexual orientation?

No. You cannot be denied custody of a child under Pennsylvania law on the basis of your sexual orientation. For a detailed discussion of Child Custody issues for same-sex couples, see Child Custody and Support for Same-sex Couples.

Is a mother more likely to be awarded custody than a father?

No, mothers are not given preference under current Pennsylvania child custody law. There was once a presumption in the law that children fared better in the custody of their mothers, but this presumption no longer exists. The court’s primary consideration is the best interests of the particular child. If a court finds that it is in a child’s best interests to live with his or her father, the father will be awarded custody.

Is the parent with whom a child has most recently been living more likely to be awarded continuing custody?

Though the court will take the stability and continuity of a child’s life into consideration when awarding custody, the courts do not presume that it is in the child’s best interest to continue living with the current primary custodial parent (known as the “primary caretaker”).  For a detailed discussion of the awarding of custody to a parent other than the primary caretaker, see Does the Primary Caretaker Get Custody Preference in PA Courts? Not Any More!

Is a mother more likely to be awarded custody of a daughter and a father, custody of a son?

In the past, it was thought that daughters fared better in the custody of their mothers and sons, in the custody of their fathers. This is no longer the case under current law. No preference is given with regard to gender of either parents or child when awarding child custody.

Is a married parent more likely to be awarded custody than a non-married parent?

There is no specific bias in favor of married parents in current Pennsylvania Child Custody law. As stated above, the court must consider all of 15 factors in addition to any other relevant factor in setting an award for child custody. Thus, if the court determines that it is in the best interest of a child to be in the custody of a particular single parent, that parent will be awarded custody. For a detailed discussion of the issue of Child Custody for single parents, see Child Custody in Pennsylvania: Safeguarding Your Rights as a Single Parent.

Will a child’s biological or adoptive parents be given preference in child custody matters over individuals who are not the child’s biological or adoptive parents?

As stated above, non-biological and non-adoptive parents may seek custody of a child. Such individuals may be granted custody if the court determines it to be in the best interest of the child. In other words, the court will consider all relevant factors, and will always award custody on the basis of a child’s best interest, even if the award results in denying custody to the child’s biological or adoptive parents.

What if a child’s parents live in different states?

Among the factors a court must consider in awarding Child Custody are the stability and continuity of a child’s life, the availability of extended family, relationships with siblings, and the proximity of the residences of the parties. When parents live a great distance from each other, siblings and/or extended family may live close to or with one parent, but not the other. The court will take these factors into account in awarding custody.

In addition, Shared Physical Custody on a weekly basis may be seen as not in the best interest of a child if the parents live a great distance from each other. In such cases, courts may allow one parent custody during the summer and certain holidays, for example, and the other parent custody for the remainder of the year. As always, the court’s determination of the best interest of the particular child under the particular circumstances will be the deciding factor. 

Can the parent with Primary Physical Custody move away with a child?

Under Pennsylvania law, no parent with custody of a child may relocate with the child without the consent of every other individual with custody rights. In addition to the consent of the other parent, the parent who proposes to relocate must obtain the court’s approval.

What if a custodial parent moves without permission and approval or otherwise disobeys the court’s Child Custody order?

The courts take Child Custody orders very seriously.  A parent who willfully disobeys a custody order may be found in contempt. The punishment for contempt of a custody order can include both a fine and imprisonment.

Can a Child Custody order be changed?

Yes. A party may petition the court to change the custody order to serve the best interest of the child.

How do I go about petitioning for custody of my child?

If parents can come to an agreement regarding Child Custody, the agreement will be submitted to the court for approval. If the parties cannot agree, one or both will need to file a Complaint for Custody with the court.

After the complaint is filed, the court system will attempt to get the parties to agree on a custody arrangement. If the parties cannot come to an agreement at this stage, a trial may be ordered to resolve the issues.  As always, parents are well-advised to seek the assistance of an attorney in this most crucial of family matters.