Physical Custody: What It Entails
In child custody determinations in Pennsylvania, physical custody means which parent will the child reside with for either a majority of or some portion of the time. Physical custody of children can be shared between both parents at designated times or the entire time. With shared physical custody, there will often be some period of time when the child resides primarily with one parent who has legal custody of the child while the other parent has shared physical custody of the child when the child is with that parent.
For instance, in an average shared custody arrangement, one parent may have the children with them Monday morning to Thursday morning while the other parent has the children with them from Thursday afternoon to Monday morning. In this type of custody arrangement, the parent whose period of custody starts on Monday mornings does not get the children for most of the week while the other parent has the children with them more often. With shared custody, it usually alternates each week which parent gets the children of the week and this would be written into an agreement or custody Order. The Week On / Week Off schedule would provide that the custody arrangement would being on Monday morning and end on Monday morning the following week. With the Week On / Week Off arrangement, each parent gets physical custody for one week. The other parent, who has physical custody for the week, has no custody of the children for the week prior and vice versa.
When there is one parent who has majority physical custody and one who has partial physical custody , the one with majority physical custody gets the children for the majority of the time. They have to make the decision about where the child will be or be responsible for having the child to the place where they will spend their time. With partial physical custody, you may be able to split up the weeks by having one parent get the child on the weekends and the other parent having the child during the week. Physical custody is more specific than legal custody because physical custody in a nutshell, goes to the parent with the child more often.
With physical custody of children, you also know when the child will be with you or the other parent. Even if you have partial physical custody, you know generally as to when you will have the child with you. The parent with primary physical custody of the child has a greater period of time to be able to make arrangements with that child for the conferences, appointments, play dates and other activities that the child will participate in. The parent with partial physical custody of the child will have to work around that parent’s schedule. Also, if any issues arise, the parent with primary custody will more often be consulted on the issues regarding the child.
Disputes over physical custody can arise when the parents argue over the appropriate schedule for the child. In most circumstances, Courts will tend to lean towards providing the parents with an equal period of time with the child. If the parents cannot get along or there is a concern that the child will be harmed if the child is with a certain parent, the Court may then only provide the parent with partial physical custody of the child.
Legal Custody: What It Entails
Legal custody, on the other hand, is a bit more involved. Legal custody gives the right to make important decisions about the child’s general welfare. The most common areas covered by a legal custody agreement include education, health care, medical needs, religious upbringing and extra-curricular activities.
Here are a few examples of how legal custody works in practice:
A parent with legal custody makes a decision on where a child should go to school. This means that neither parent can unilaterally decide the child should go to a private school because they feel it will improve academic performance. Instead, the parents must discuss the idea and come to an agreement.
One parent makes a unilateral decision about the healthcare a child should receive. This decision could be as serious as a life-threatening condition, or it could be as simple as when a child should receive over-the-counter medication. In either case, the parent who has legal custody has the final say in all medical decisions.
Physical vs. Legal Custody: Key Differences
When navigating custody arrangements during a divorce or separation, it’s important to understand the difference between physical and legal custody. While both refer to the care and well-being of your child, they have distinct implications for parental rights.
Physical custody arrangements determine where a child will live on a day-to-day basis. A parent with physical custody is responsible for the everyday care of their child, including catering to their physical, emotional, and practical needs. Physical custody can be awarded solely to one parent or shared between both parents, in what is known as "joint physical custody." In joint physical custody arrangements, the child will spend substantial time with each parent, determining their primary residence. The objective of physical custody is to ensure the child enjoys a nurturing environment.
Legal custody, on the other hand, refers to the authority to make long-term decisions on behalf of the child regarding education, healthcare, and welfare. A parent with legal custody is tasked with making significant decisions that influence the child’s life. Like physical custody, legal custody can be granted solely to one parent or shared between parents (joint legal custody). The intention behind legal custody is to encourage the child’s development in a manner that promotes the best interests of the child’s welfare and happiness.
Physical and legal custody arrangements can significantly affect parental rights and responsibilities. For example, a parent with sole physical custody may have more say in day-to-day decisions, whereas another parent may have equal say in such decisions if joint physical custody is granted. Legal custody arrangements can affect how decisions are made about the child’s schooling, healthcare, and religious instruction.
It is a common misconception that physical and legal custody arrangements are one and the same. Despite their different implications, both physical and legal custody are intended to ensure the well-being of the child and safeguard their best interests.
In conclusion, physical and legal custody are two separate but equally important aspects of custody arrangements that determine a parent’s role in caring for their child. Understanding their differences can help you navigate the custody process and seek a solution that is in the best interest of the child.
Joint Custody and Sole Custody: How Each Works
Joint and sole custody can refer to either physical or legal custody. Physical custody arrangements mean which parent the children will live with while legal custody arrangements mean who will be responsible for making major decisions about the children’s upbringing.
You could have one parent who has sole physical custody of the children – meaning the children primarily live with that parent – but that parent could have joint legal custody of the children. In other words, both parents still have a say in the major parenting decisions, but only one has to house the children.
Alternately, you could have joint physical custody with sole legal custody. The children would still mostly live with one parent on a regular basis but that parent would have the sole responsibility of making the important decisions without consulting the other parent.
Most often, when a parent has sole physical custody of the children, he or she also has sole legal custody. However, this isn’t always the case. As mentioned, the custodial parent could be given sole physical custody of the children but be given joint legal custody so that he or she still has to consult the other parent on important decisions.
On the other hand, even when a parent has joint physical custody, he or she could have sole legal custody, meaning that even though the children spend half the time with both of you, you still have the sole responsibility of making the major decisions.
Working together to raise and support the children after divorce is not always easy. Many couples find it difficult to co-parent after the marriage ends, especially when there are animosities. In some situations – including those with significant histories of domestic violence – it may be more appropriate to give one parent sole physical custody of the children so that he or she has the primary responsibility of their care.
It may also be appropriate to give one parent sole legal custody so that they make decisions on behalf of the children.
Joint physical custody is a good arrangement when the divorcing couple can effectively work together. This can lead to a least amount of disruption and transition for the children. It can also provide continuity since they can continue to have a similar schedule with each parent and spend about equal time with each parent.
What Do Courts Consider in Custody Cases?
When determining the type of custody arrangement that is in the best interest of the child, there are a number of factors that are considered by the court. Physical custody is determined and controlled by the Award of Custody. The Award of Custody is based upon the best interests of the child.
In deciding upon the best interests of the child, the court will consider the following factors:
- (1) The parental duties performed . . . for the duration of time that the child has resided with the parent.
- (2) The need for stability and continuity in the child’s education, family life, and community life.
- (3) The interaction and actual contact of the child with both parents and siblings.
- (4) The preference of the child, when such is clearly stated.
- (5) The positioning of the parents by agreement, by court order, or by factors over and above the control of the parents.
- (6) The ability of the parents to cooperate with one another to further the needs of the child.
- (7) Each parent’s availability to care for the child or make appropriate child-care arrangements.
- (8) The age and number of children.
- (9) The sibling relationship.
- (10) The provision of services by the parent or third party to maintain the child’s emotional well-being.
- (11) The child’s regular daily routine.
- (12) The fitness of the parents , including their mental and physical condition.
- (13) The home environment of the proposed custodial parent.
- (14) The ability of the parents to foster a continuing relationship with the child.
- (15) Geographic proximity of the parents’ residences.
- (16) The availability of extended family.
- (17) The child’s preference, when the child is capable of making a reasonable choice.
- (18) The attempts of a parent to turn the child against another parent, or to deprive the child of the love and affection of the other parent.
- (19) The history of drug or alcohol abuse of a party or member of the party’s household.
- (20) Domestic violence committed by a party or member of a party’s household.
- (21) Any other relevant factor.
In addition to those factors that are considered for determining physical custody, there are factors that are also considered for legal custody. Legal custody is decided and controlled by the Court Order, usually based upon mutual agreement. A significant factor that advises the Court to designate sole legal custody to one parent is if the parties cannot get along, and if the parties argue with each other about anything that requires the Court to intervene. If the Court cannot expect the parties to cooperate with a co-parenting relationship, then the Court will retain full authority to act as a mediator and decide how the parents will parent their children.
How Custody Seems to Affect Children
The impact of custody arrangements on children has been studied extensively in both the clinical and academic fields. Generally speaking, even a "winner" in a custody battle is more of a loser than the loser. Exceedingly common are cases where one parent is granted sole physical custody while the other parent is granted legal custody (the one that isn’t spending the most time with the child). This can lead to a whole host of problems, not the least of which is financial, as the parent with the least time with the child (often the father) is the one who must pay child support.
Research on the role of parents reveals that it is far more important to a child that their parents be co-parents than whoever is awarded the most parenting time or is the "primary caretaker" (whoever that is). This means that time with each party involved is not enough; there must be some modicum of cooperation and consistent involvement in the child’s life. Studies show that a child’s development is not so much linked to the amount of time they spend with each parent as it is just having access, both physically and emotionally, to both parents.
Within any divorce or custody dispute, you are bound to have at least one parent acting in an aggressive, hostile, ill-tempered manner. Even if the divorce or custody dispute is amicable, it is not unusual for a child to feel they must act differently around each parent, such as being more emotionally open around one parent, while more closed off with another. This leads to confusion and anxiety in the child. Often, this is a result of how the custodial parent handles disagreements regarding the child between themselves and the non-custodial parent.
Children are hard-wired to crave close emotional connections with their parents. This is what leads to a conventionally difficult adjustment to divorce. In the long-term, this leads to anxiety and depression, as well as avoidance issues that can damage self-esteem. These issues will be magnified if the custodial parent is combative with the non-custodial parent, either in court or outside of it.
Many experts now believe that parents engaged in high conflict disagreements are merely presenting a family cycle that will perpetuate itself for years as the child continues to experience more conflict. The result of such conflict is not just harmful to the child, but the family as a whole. While parents may be functioning fine in the parental role, many studies reveal that between 20-40% have clinically significant psychological problems.
Changing Custody Agreements
To modify or vacate a custody award pursuant to 23 Pa.C.S.A. § 5337, an individual must file a petition. The party seeking to modify a legal custody or physical custody order must "demonstrate a significant impact on the child or family such that modification would be necessary to serve the best interest of the child. Put another way, if the moving party can establish a significant change in either the law or the facts, the court shall consider the best interest of the child in determining whether the custody order should be modified." V.U. v. W.R.U., 940 A.2d 379, 382 (Pa. Super. 2007) (internal citations omitted). The Superior Court has held that such "significant" changes could include remarriage, moving to a new residence, being charged with neglect or domestic violence, and seeking other forms of relief from the Court, such as a PFA petition or seeking to modify periodic payments. T.B. ex rel. A.K. v. L.R.J. 889 A.2d 137, 142-143 (Pa. Super. 2005).
If the moving party can demonstrate a significant impact on the child such that modification would be necessary to serve the best interest of the child, as discussed above, the trial court must then consider the best interest of the child in deciding whether to modify the custody award. Id. at 143. Further, there must be some material, reasonable grounds for relief such that the best interests of the child could be served. Id. Although further findings under the factors also may be appropriate upon consideration of the modification petition, no further findings of fact are required. Id. The trial court retains the discretion to determine what additional evidence to consider. Id.
It is well established in the Commonwealth that "[a] party seeking to modify a child custody order has the burden to prove to the trial court that a modification is necessary to serve the best interest of the child." G.B. v. D.B., 86 A.3d 1057, 1071 (Pa. Super. 2014). Further, while the party seeking modification has the burden of showing that modification is needed, the trial court has the prerogative to schedule a full-blown hearing or rule on the motion based on the parties’ written submissions. Id. In addition, a court may use its inherent contempt power to enforce its custody orders. C.P. v. M.J.B., 32 A.3d 253, 258 (Pa. Super. 2011).
The Court’s decision regarding whether to modify physical or legal custody is reviewed under an abuse of discretion standard. Id. Under the abuse of discretion standard, an order is reversed if the court misapplied the law or exercised its discretion without consideration of the facts of the case or without reasonable grounds to support the order. Id. If there is evidence to support the trial court’s factual findings, an appellate court may not interfere with the trial court’s credibility determinations or substitutions of its judgment of that of the trial court. Id.
However, while the appeal is pending, the appeals court can, at its own discretion, re-examine an order on custody if the order has not been implemented and a substantial change in circumstances occurs. C.C.R. v. J.A.H., 30 A.3d 1221, 1225-1226 (Pa. Super. 2011).
Legal Help and Resources
Navigating the complexities of physical and legal custody can be overwhelming for parents without expert legal assistance. It’s crucial to have a dedicated family law attorney guide you through the process, as they can provide invaluable advice based on their deep understanding of the law and its nuances.
In order to make informed decisions about custody arrangements, it’s essential that you stay informed about how court processes and state laws apply to your individual situation. The below resources can help:
- Family law attorneys. These legal experts understand the intricacies of local divorce and custody laws and can provide tailored guidance based on your unique case and needs.
- Custody mediators. Employed by courts , mediators can help resolve family disputes without going to trial. Mediators work with parents to communicate openly, express their desires, and reach solutions that meet their children’s best interests.
- Online information. A variety of online resources can help you learn more about topics like child custody and divorce; however, while these resources can help improve your familiarity with the law, they can never replace the sound advice of a skilled family law attorney.
Whether you need assistance filing a court petition or are looking to appeal an unfavorable child support ruling, legal help is essential for parents throughout the custody process. With expert legal guidance, it’s possible to navigate the custody process more smoothly and pursue the most beneficial and satisfying options — for you and your kids.