Pennsylvania, like all states, uses the "best interests of the child" standard when making custody determinations. The state also has a strong presumption in favor of shared custody because frequent contact with both parents is often in the child's best interests. Changing physical custody can be accomplished either by reaching an agreement with the other parent or by petitioning the court for a change in custody.
About Physical Custody
Pennsylvania law defines physical custody as the physical possession and control over a child. Legal custody refers to the right to make decisions on behalf of the child, including health, religious and educational decisions. Primary physical custody is the right of one parent to assume physical custody of the child for a majority of the time while shared physical custody refers to the right of both parents to spend a significant period of time with the child. Courts may grant parents a combination of physical and legal custody or either parent sole physical or legal custody, depending on the circumstances.
Changing custody by mutual agreement is typically the easiest path, so you should consult with the other parent before beginning a legal custody action. A mediator can often help with this. If the two of you can agree to a new physical custody arrangement, draft the arrangement in careful detail. Make sure you address holidays, birthdays, how a change in schedule will be handled, and other common sources of conflict. You both must then sign the schedule and submit it to the clerk of the court that originally handled your custody proceedings.
Petition to Modify
If you cannot come to an agreement with the other parent, complete a Petition to Modify Custody, which you can obtain from the clerk of court in the court where your custody proceedings were originally held. Complete the form in its entirety and attach a proposed parenting plan outlining the schedule you are requesting. You should also explain why you are petitioning for a change in custody. Pennsylvania law requires a substantial change in circumstances that are in the child's best interest when only one parent requests a custody change, and as such, it's essential to be specific as to why you are requesting the change. Relevant changes might include a parent's move, new job or the child has a new school schedule.
If you and the other parent agreed to a custody change, a judge may opt not to schedule a hearing. If the judge has questions or you filed a petition, however, there will likely be one. At the hearing, you must demonstrate why your requested change is in your child's best interests. If the other parent does not agree to the change you requested, be prepared to call witnesses and submit evidence demonstrating why a change in physical custody is the best choice for your child. Factors commonly considered as part of a child's best interests include each parent's willingness to foster the child's relationship with the other parent, relative parenting competence of each parent, the child's relationships with siblings and other family members, and any history of abuse or domestic violence. You may want to seek the help of a family law attorney to assist with the hearing because Pennsylvania family law can be complicated.
- The Martin Law Firm: PA's New Child Custody Law
- The Art and Science of Child Custody Evaluations; Jonathan W. Gould et al.
- Pennsylvania State Legislature: Title 23, Part VI, Chapter 53: Child Custody
- Appendix F-3: PA Custody Statute
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