Understanding the ins and outs of child custody can be overwhelming to one who never had to think about the concept before. Most of us think of our children as “our own,” and that is it. But if separation and divorce become part of a family story the legal and emotional issues raised by custody can be scary and daunting.
Who and what are our children? Are they property? Are they a part of ourselves? Are they separate precious individuals who we take care of temporarily? Are they all of the above? What happens if parents are in conflict over the children? What happens if grandparents get into the picture and want custody? The answers to these questions are not obvious, and may raise intricate legal issues. If child custody becomes contested, the process can become complex.
If a custody case does not settle and ends up in Court, parents may feel like they are in a foreign territory. When entering a foreign land, having a guidebook with some common phrases often is useful to help calm the nerves. Today’s blog is a short introduction to the types of child custody, including important definitions and concepts.
In Pennsylvania, as in all jurisdictions, there are two types of overall Custody: Legal and Physical Custody. This custody applies only to an un-emancipated child (minor) under the age of eighteen.
Legal Custody is the legal right to make major decisions affecting the best interests of minor child. These decisions involve questions around medical, religious, and educational matters. Except where one parent is unable to participate in such decisions because he/she is mentally impaired, medically incapable, or otherwise unavailable, legal custody almost always is shared between parents.
Physical Custody is the actual physical possession and control of a child. It involves where the child will live day to day and who has physical proximity to the child. There are different levels and degrees of physical custody.
Sole Physical Custody – is rare and almost never ordered except in cases where the second parent is completely unavailable, has abandoned the child, is incarcerated or some other similar scenario.
Shared Physical Custody – is the presumptive status in Pennsylvania. An award of shared physical custody means that both parents share physical time in sole possession with the child. It assures the child of frequent and continuing contact with both parents. Shared physical custody can mean fifty/fifty time with each parent. If this is in the best interests of the child this is the preferred custody. Shared custody is not; however, automatically an equal award of time with each parent. Shared custody can be any proportion of time between the parents.
Primary Physical Custody – For purposes of establishing residency for school, one parent may be designated the parent with primary physical custody. This designation created the legal home address for the child. It was unclear previously what rights the “non-primary parent” had to be provided with school transportation, and many non-primary parents found themselves driving children to school or to a bus stop far away on days they had custody. Most recently, a Pennsylvania Court has ruled that in a case where parents are separated or divorced and share custody a School District must provide transportation to the homes of both parents even where the parents both live in the same school district.* This decision may pave the way to abandon the need for a primary physical custody designation altogether.
Visitation – This is the right to visit with a child. For significant reasons a parent may not be awarded any form of physical custody. In certain circumstances visitation also may be required to be supervised.
Knowing the types of custody is an important beginning to navigating the waters of a contested custody case. Preparation is key. Working with an experienced family lawyer to help you secure the stability, safety and security of your most precious “possession(s).” may be the next step.
* The Pennsylvania Commonwealth Court case that discusses the duty of a school district to provide transportation to home of both parents is Watts v. Manheim Township School District. See the blog entry on school transportation for a more complete discussion of this custody issue.