An Overview of Recent Changes to the Pennsylvania Custody Statute-Part I

On January 16th, 2011 the new Pennsylvania custody statute took effect. This is the first major overhaul of the custody statute in many years. It codifies many changes that have been implemented by case law in the interim. In addition, it expands the factors to be considered in determining custody.

Definitions

The first section of the new act provides clear cut definitions of various terms. Legal custody, for instance is defined as "the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions". In addition, the various types of custodial relationships (expanded from three to seven) are clearly defined.

Types Of Custody

The new custody law provides for seven different custodial relationships; shared physical custody, primary physical custody, partial physical custody, sole physical custody, supervised physical custody, shared legal custody and sole legal custody. Each type is defined. Noticeably absent is the term "visitation," which has fallen out of favor.

Standing To File For Custody

The act provides that three classes of individuals can file for custody of a child. They are parents, persons who stand "in loco parentis" (someone who has taken on the parental role in absence of the parents) and grandparents. It provides very specific requirements for a grandparent to have standing to file.

Presumptions

The legislature provided for various presumptions regarding custody depending upon the parties to the action. In an action between two parents there is no presumption of custody. The act specifies that custody determinations are to be "gender-neutral". This addresses the popular misconception that there is a presumption in favor of mothers. There is a rebuttable presumption in favor of a parent when one of the parties is a non-parent.

Factors The Court Will Consider In Awarding Custody

  • Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

  • The present and past abuse committed by a party or a member of a party's household.

  • The parental duties performed by each party on behalf of the child.

  • The need for stability and continuity in the child's education, family life and community life.

  • The availability of extended family.

  • The child's sibling relationships.

  • The well-reasoned preference of the child based upon the child's maturity and judgment.

  • The attempts of a parent to turn the child against the other parent.

  • Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child.

  • Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

  • The proximity of the residences of the parties.

  • Each party's availability to care for the child or to make appropriate child care arrangements.

  • The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.

  • History of drug or alcohol abuse of a party or a member of a party's household.

  • The mental and physical condition of a party or member of a party's household.

  • Any other relevant factor.

The Act then sets forth various criminal offenses which will be considered as well.

SEE PART II