Separation And Child Custody

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Analysis

Custody means the legal right to keep, control, guard, care for and preserve a child and includes “legal custody” and “physical custody.”

(1) Legal custody is the right to make major decisions affecting the best interest of a minor child, including but not limited to, medical, religious and educational decisions.
(2) Physical custody means actual physical possession and control of a child.

Physical custody arrangements, particularly those reached upon consent of the parties, can be tailored to meet the specific needs of the parties and children involved, however, generally speaking, there are several basic types of arrangements. One arrangement involves one parent having primary physical custody (the custodial parent) while the other parent has partial custody and/or visitation. Partial custody is the right to take possession of a child away from the custodial parent for a certain period of time and may include overnights, while visitation is the right to visit with a child, but does not include the right to remove the child from the custodial parent’s control. An example of this arrangement is where one parent has partial custody every other weekend with weekday visitation once a week. The other parent has physical custody at all other times.

Shared physical custody is another type of physical custody where the parents share custody of the child(ren) in a way to assure frequent and continuing contact, including physical access, to both parents. One basic example of this arrangement is where parents alternate physical custody of the child(ren) by week and the child(ren) spend one week with one parent and the next week with the other parent. Shared custody does not necessarily require that parents have equal physical custody, but focuses on frequent and continuous contact with both parents.

A custody action may be filed as part of a divorce action, or may be filed as a separate action. If filed separately, the party seeking custody (the plaintiff) must file a complaint requesting custody, partial custody or visitation. The complaint is typically filed in the home county of the children at the time of commencement of the action, however, another county may be appropriate, depending on the circumstances.

As with support actions, procedure for custody actions varies from county to county in Pennsylvania and may depend upon the specific type of custody requested. Often times parties, and sometimes children over age five (5), are required to attend an educational seminar concerning separating families. Mediation involving only the parties (without attorneys) and a mediator is a requirement in some counties. If a custody arrangement is worked out at mediation, the parties and their attorneys prepare a consent order setting forth the custody arrangement. If mediation is not required or is not successful, the next step is usually a custody conference. If the custody issues are not resolved through a conference, the case may proceed to a hearing or trial, depending on the procedures of the county. When it is necessary to litigate a custody action, the judge focuses on the best interests of the children when deciding custody. As with child support, custody orders are modifiable.

What It Means to You

Contact a member of Cipriani & Werner’s domestic relations group for further information regarding custody actions in Pennsylvania.
 

Journal Edition

October 2006
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