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What Types Of Custody Are There?

By Attorney Kristine J. Zajac, Esquire

  • Legal custody means the right to make major decisions for the child, including education, health care, and religious training. Legal custody can be individual or joint.
  • Joint legal custody means that both parents have equal rights and responsibilities in making these major decisions.
  • Physical custody and residence means living with the child and having the routine daily care and control of the child. One parent may have sole physical custody even if the parents have joint legal custody.
  • Joint physical custody means that the child lives part-time with one parent and part-time with the other.

How is Custody Decided?

If both parents want custody of the child, the court looks at all important facts in deciding the best interests of the child. These include:

  1. the wishes of each parent as to custody;
  2. the reasonable wishes of the child, if the child is old enough to decide;
  3. how much each parent takes care of the child;
  4. the closeness of the relationship between each parent and child;
  5. the interaction of the child with each parent, brother and sister, and anyone else who is important to the child;
  6. the child's adjustment to home, school, and community;
  7. the length of time the child has lived in a stable, satisfactory place and the need to stay in that place;
  8. the permanence, as a family, of the existing or proposed custodial home;
  9. the mental and physical health of all individuals involved;
  10. the ability of each parent to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture, religion, or creed, if any;
  11. the child's cultural background;
  12. the effect on the child of any domestic abuse in the household; and
  13. whether each parent will encourage and permit the child to have frequent and continuing contact with the other parent (except where there is domestic abuse).

The court must make detailed findings on all of the factors. The court must explain how it decided what were the best interests of the child. The court will not look at conduct of a parent which does not affect his or her relationship to the child. The court will look at evidence that a parent has made a false charge of sexual abuse, physical abuse or neglect.

Can Custody be Changed?

Yes. The court can change a custody order if the situation of the child or the parents has changed and a new order is needed to serve the best interests of the child. The court must rely on facts that have changed since the old order or on facts unknown to the court at the time of the old order. The court cannot change custody unless:

  • both parties agree to the change; or
  • the custodial parent has let the child become integrated into the home of the other parent; or
  • the child's present home endangers the child's physical or emotional health, or harms the child's emotional growth, and a change will be less harmful than staying in an unsafe home.

To change a custody order, the parent must bring a motion in court. The parent must have affidavits and, if possible, other documents which show one of the above listed reasons for changing custody.

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