“Physical custody” is the actual physical possession and control of a child.

“Legal custody” is the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.

“Child”  is defined as an unemancipated individual under 18 years of age. 23 Pa.C.S. §5322.

The court may award any of the following types of custody  if it is in the best interest of the child:

• Shared physical custody: the right of more than one individual to legal custody of the child.
• Primary physical custody: the right to assume physical custody of the child for the majority of the time.
• Partial physical custody: the right to assume physical custody of the child for less than a majority of the time.
• Sole physical custody: the right of one individual to exclusive physical custody of the child.
• Supervised physical custody: custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.
• Shared legal custody: the right of more than one individual to legal custody of the child.
• Sole legal custody: the right of one individual to exclusive legal custody of the child. 23 Pa.C.S. §5322.

Pursuant to 23 Pa.C.S. §5324, only those individuals who have “standing” are permitted to file an action   in the Commonwealth of Pennsylvania for any form of physical custody or legal custody of a child. Individuals with standing to pursue physical custody or legal custody of a child in the Commonwealth of Pennsylvania include:

1. A parent of the child.
2. A person who stands in loco parentis to the child.
3. A grandparent of the child who is not in loco parentis to the child:

(i) whose relationship with the child began either with the consent of a parent or the child or under a court order;
(ii) who assumes or is willing to assume responsibility for the child; and (iii) when one of the following conditions is met:
(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
(C) the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.

In addition to the factors set forth above, grandparents and great-grandparents may file an action for partial physical custody or supervised physical custody in the following situations.

(1) where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action for partial physical custody or supervised physical custody of the child;
(2) where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage; or
(3) when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after the removal of the child from the home. 23 Pa.C.S. §5325.

The court considers the following factors in determining whether to order physical custody or supervised physical custody to a grandparent or great-grandparent:
(i) the amount of personal contact between the child and the party prior to the filing of the action;
(ii) whether the award interferes with any parent-child relationship; and
(iii) whether the award is in the best interest of the child. 23 Pa.C.S. §5328(c)
In ordering partial physical custody or supervised physical custody to a parent’s parent or grandparent who has standing, the court must consider whether the award interferes with any parent-child relationship and is in the best interest of the child.  23 Pa.C.S. §5328(c)

As between parents, there is no presumption that custody should be awarded to a particular parent. 23 Pa.C.S. §5327(a).  However, as between a parent and a third-party, there is a presumption that custody shall be awarded to the parent, but this presumption may be rebutted by clear and convincing evidence. 23 Pa.C.S. §5327(b).

In ordering any form of custody, the court must determine the best interest of the child by considering all factors. The court gives weighted consideration to those factors which affect the safety of the child, including the following:

1. Which  party is more likely to encourage and permit frequent and continuing contact between the child and another party.
2. The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
3. The parental duties performed by each party on behalf of the child.
4. The need for stability and continuity in the child’s education, family life and community life.
5. The availability of extended family.
6. The child’s sibling relationships.
7. The well-reasoned preference of the child, based on the child’s maturity and judgment.
8. The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
10. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
11. The proximity of the residences of the parties.
12. Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect the child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
14. The history of drug or alcohol abuse of a party or member of a party’s household.
15. The mental and physical condition of a party or member of a party’s household.
16. Any other relevant factor.   23 Pa.C.S. §5328.

In making a child custody determination, the court is prohibited from granting any preference based upon gender.  23 Pa.C.S. §5328 (c).

Where a party seeks any form of custody, the court must consider whether that party or member of that party’s household has been convicted of,  or has pleaded guilty or no contest to,  any of the  criminal offenses enumerated in 23 Pa.C.S. §5329, or to a  substantially equivalent criminal offense in another jurisdiction.

The court, when considering a  party’s conviction for any of  the offenses enumerated in 23 Pa.C.S. §5329 and before making any order of custody to that parent, must provide for an initial evaluation to determine  whether that party poses a threat of harm to the child, and whether counseling is necessary for that party or household member. 23 Pa.C.S. §5329(c).

If the court deems counseling to be necessary, it must appoint a qualified professional specializing in treatment relating to the particular offense to provide counseling to the offending individual. Counseling may include a program of treatment or individual therapy designed to rehabilitate the offending individual which addresses, but is not limited to, issues regarding physical and sexual abuse, the psychology of the offender and the effects of the offense on the victim. 23 Pa.C.S. §5329(d).

The court may require the parties to a contested custody case to submit parenting plans for the care and custody of the child to assist the court in resolving the custody dispute. These parenting plans are not admissible as evidence by another party. The contents of the parenting plan shall include the following:

• The schedule for personal care and control of the child, including parenting time, holidays and vacations.
• The education and religious involvement, if any,  of the child.
• The healthcare of the child.
• Child-care arrangements.
• Transportation arrangements.
• A procedure by which proposed changes, disputes and alleged breaches of the custody order may be adjudicated or otherwise resolved through mediation, arbitration or other means.
• Any matter specified by the court.
• Any other matter that serves the best interest of the child. 23 Pa.C.S. §5331.

The court may direct the parties to attend informational programs concerning parental duties (23 Pa.C.S. §5332) or counseling sessions (23 Pa.C.S. §5333).  In situations involving abuse, the court may order individual counseling for the abuser but may not order the parties to attend joint counseling.  23 Pa.C.S. §5333(b).

A party granted sole or shared legal custody shall be provided access to: (1) the medical, dental, religious and school records of the child; (2) the address of the child and any other party; and (3) any other information that the court deems necessary or proper.   23 Pa.C.S. §5336.