Family Law

How do Judges Decide Child Custody in Pennsylvania

By Melissa Heinig, Attorney
Learn more about what courts will consider when they make custody and visitation arrangements in Pennsylvania.

Parents usually know what’s best for their children, so courts encourage divorcing parents to create their own parenting plan, which will include details about custody and visitation. If parents can’t agree, a judge will have to decide based on the child’s best interests.

What Is Custody?

Legal Custody:

Parents with legal custody have the right to make decisions regarding their child’s education, health, and general welfare, including:

  • residence
  • religion
  • education, and
  • major medical decisions, like surgery or braces.

The court may award sole legal custody or shared legal custody. In Pennsylvania, judges will generally grant parents shared legal custody, which means both parents will have a right to take part in decisions on major issues that impact significant parts of the child’s life. If parents simply can’t agree after trying to work out their differences on a particular child-related issue, they will need to ask the court for help deciding.

If the court awards one parent sole legal custody, that parent can make all major decisions about the child’s welfare without consulting the other parent. It’s important to understand that an award of sole legal custody is very rare, and generally only happens in cases where one parent is absent, abusive, or neglectful.

Physical Custody

Physical custody generally refers to the parent’s time with the child and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, the court can award sole or joint physical custody.

If a judge awards one parent sole physical custody, it means that the child will reside with that parent for most of the year, and the other parent will have visitation rights with the child.

An award of shared custody generally means that the child stays overnight with each parent for more than 35% of the year and both parents take care of child-related expenses. Parents can share physical custody even if the child doesn’t reside with each of them equally.

Custody and Grandparents

Unlike many other states, Pennsylvania allows grandparents to file for custody if it’s not in the child’s best interest to be in the care of either parent and if it doesn’t interfere with the parent-child relationship. To be successful in a custody case, grandparents must be able to show:

· they have had genuine care and concern for the child

· their relationship with the child began with either parent’s consent or a court order, and

· for at least 12 months, they have assumed the role and responsibilities of the child’s parent. This can’t include any time that both the child and parent have lived with the grandparent together.

If grandparents can’t prove the above factors, they may still ask the court for partial custody, or visitation with the child.

What Is Visitation?

If a court awards one parent sole physical custody, the next step is to determine a visitation schedule for the non-custodial parent and the child, or in some cases, the grandparents and child. Families should work together to determine a schedule that will work best for everyone, especially the child. Often, families aren’t completely happy with a court-ordered visitation schedule, so when parents work together, they hold more control over their final schedule. When creating a calendar for your family, together, you should consider:

  • Holidays and school breaks
  • mid-week and weekend visitation
  • work schedules
  • pick-up and drop-off locations and responsibilities, and
  • who will pay for transportation costs.

Pennsylvania has a strict policy of protecting the parent-child relationship, so it’s rare that a judge will ever completely deny a parent visitation. In situations where a judge is worried that a child may be physically or emotionally harmed by allowing a noncustodial parent to visit with a child alone, a judge may order supervised visitation. In this type of visitation, a neutral third-party will observe all visits between the parent and child in a preapproved location, such as a county building. Supervised visits are common where a parent has a history of abuse, neglect, or untreated substance abuse issues.

How Does the Court Determine Custody?

Courts recommend and prefer that parents work together to determine their ideal custody arrangements. Like visitation schedules, parents know best what works for their family, so deciding on a plan together is ideal.

If parents can’t agree, a court will determine custody based on the best interests of the child. When deciding custody, a judge will evaluate what is best for the child using the following general factors:

  • which parent is more likely to encourage and permit frequent and continuing contact between the child and the other parent
  • any history of abuse by one parent, whether there is any continued risk of harm to the child, and which parent can protect the child
  • the parental duties that each parent has performed for the child
  • the child’s need for stability and continuity in their education, family life, and community life
  • the availability of extended family
  • the child’s relationship with siblings
  • the child’s preference, if the child is mature enough to form an opinion
  • any history of a parent’s attempt to turn the child against the other parent
  • which parent is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child
  • which parent is more likely to attend to the child’s daily physical, emotional, developmental, educational, and special needs
  • the proximity of the parents’ home to each other
  • each parent’s availability to care for the child or make appropriate child care arrangements
  • the level of conflict between the parents, and the willingness and ability of the parents to cooperate with one another
  • any history of drug or alcohol abuse by either parent or someone living with the parent
  • each parent’s mental and physical health, and
  • any other factor that the court finds relevant.

During the custody hearing, each parent will have the opportunity to present evidence to show why a judge should favor them in each factor listed above. An example of the type of evidence commonly used during custody trials may include:

  • social media posts
  • email and text messages
  • phone records
  • witnesses, and
  • school and medical records.

Once the court makes its decision about custody arrangements and creates a parenting plan, both parents must follow it. If either parent wants to change the arrangement at a later date, that parent will need to ask a judge to modify custody. In order to convince a court to change custodial arrangements, the requesting parent will need to prove there's been a substantial change in circumstances and that it is in the child’s best interest to modify custody or visitation.

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