State law requires consideration of many factors that affect a child’s welfare.
While divorce can be extremely difficult for spouses, it can understandably be especially challenging for children of the marriage. To protect vulnerable children, Pennsylvania laws governing child custody, visitation and related matters that concern children's well being require courts to make decisions in light of the children's best interests.
Aspects of custody
Under state statute, two types of custody must be determined in divorce:
- Legal custody determines which parent has the right and responsibility for making major life decisions for the child like those related to religion, health and education. Legal custody may be shared, an arrangement where both have equal rights to make these decisions and are required to work together in consultation. One parent may be assigned sole legal custody.
- Physical custody determines which parent has "actual physical possession and control of a child." Shared physical custody means that both parents have the right to significant time with the child. When one parent has the child most of the time, that parent has primary physical custody and the other partial physical custody. When one parent has exclusive control of the child, it is called sole physical custody.
Practical considerations
Often, parents can negotiate a marital settlement agreement in which custody is an uncontested issue. They would negotiate, usually through their lawyers, and decide together how to divide legal and physical custody. Parents will also need to negotiate a parenting plan that sets out in detail a schedule of where the child will live and times of visitation.
If they cannot settle these issues, then the judge in the divorce will have to make those decisions in light of the child's best interests. Pennsylvania law does not presume that either parent would be the better one to be awarded custody and custody decisions may not be based on parental gender.
Determining best interest
The judge must base his or her custody decision on the best interest of the child by considering "all relevant factors." Things that affect child safety have added weight. Pennsylvania statute also requires that the judge consider specific items in a list:
- Likelihood that a parent will encourage the child's "frequent and continuing contact" with the other parent
- Risks of abuse or harm, and which parent has the ability to "better provide adequate physical safeguards and supervision"
- Past involvement of protective services in matters of child abuse
- Parental duties each parent provides to the child to meet his or her "physical, emotional and social needs"
- Needs regarding "stability and continuity" in "education, family life and community life"
- Availability of extended family members
- Sibling relationships
- Child's preference, depending on "maturity and judgment"
- Parental attempts to alienate child from the other parent
- Which parent is more likely to "maintain a loving, stable, consistent and nurturing relationship" that would meet the child's emotional needs
- Which is more likely to "attend to the [child's] daily physical, emotional, developmental, educational and special needs"
- Proximity of the two parental homes
- Parental availability or ability to secure child care
- Parental conflict and ability to cooperate
- Parental substance abuse or substance abuse by someone else in the home
- Mental and physical health of each parent or of someone else in the household
- Anything else relevant
The lawyers of Testa & Pagnanelli, LLC, with offices in Philadelphia, Norristown and Radnor represent parents in child custody matters, including divorce, in the Philadelphia area, in Norristown and throughout Montgomery County.