What is Sole Legal Custody?
What is Sole Legal Custody in Pennsylvania?
A sole legal custodian bears the exclusive responsibility for major decisions concerning the child’s interest. This is fully defined under statute by 23 Pa.C.S.A. §5322 (b). As can be seen from a reading of the statute, legal custody relates directly to the decision-making process regarding the child’s health, education, religion and general well-being. The statute further recognizes that the parties may agree to take a shared approach to these issues, thus agreeing on some aspects by consensus.
An example of what this may entail includes a situation where the parents initially have equal legal custody of the child. They take turns electing the Childs’ school for elementary school. In turn , they work together to determine a reasonable summer schedule for the child to spend time with both parties since the parties share a football/baseball schedule.
At some point, the parties realize that they are getting nowhere in determining the appropriate primary school placement. They continue to share equal legal custody of the Child but the parties each separately obtain opinions of the school psychologist about what is in the child’s best interest. After obtaining differing opinions, one party insists that the child go to Catholic School while the other insists that the child not attend a religiously affiliated school. They cannot agree. Thus, the party who believes Catholic School is in the Childs’ best interest petition the Court to grant sole legal custody in order to make that election.
Basic Requirements for Sole Custody in PA
Legal criteria for sole legal custody in Pennsylvania
Pennsylvania law regarding the custody of a child is set out in Title 23 of the Pennsylvania Consolidated Statutes. In custody proceedings, the court must make "its determination in accordance with the best interest of the child." 23 Pa.C.S. §5328. The factors a court must consider in determining what is in a child’s best interest are set forth at 23 Pa.C.S. §5328. The list of factors is lengthy (there are a total of 16), and the individual significance of each factor will vary depending on the facts of the particular case. Importantly, the list of custody factors includes language about which parent (or non-parent) is likely to offer the child "positive moral values, spiritual values and proper emotional development" as well as which parent will be able to provide for the child’s education. Id. So, clearly, the legislature intended that elements of character and education play a significant role in custody determinations.
Given the importance placed on personal character and education, it follows that there is no specific factor in the custody statute titled "sole legal custody." This is because sole legal custody (or legal/physical) cannot simply be awarded to one parent or non-parent because the other is not an appropriate candidate to have joint legal custody over the child. If the other parent honestly holds views that you believe might expose the child to what, in your opinion, would constitute intolerable "negative moral values," then such views might play a role in the custody analysis. However, a parent’s views on such topics would not likely, alone, warrant a grant of sole legal custody. A parent’s views may certainly be a factor to consider in the overall mix of factors, but what ultimately governs the grant of sole legal custody is whether the entry of such custody has been proven to be in the best interests of the child.
In Pennsylvania, when deciding custody issues, courts regard advice from experts appointed by the judge highly. One common type of authority that judges use is called a Child Custody Investigator. A Child Custody Investigator is appointed whenever a custody case isn’t settled and, importantly, the parties can afford to pay for one. The investigator will meet with parents, children, and pertinent witnesses to interview and evaluate them. A judge will consider the written report of the custody investigator in deciding the case.
Not everyone, however, can afford a private child custody investigation, which often costs several thousand dollars and takes months to complete. There are less formal alternatives, such as consulting a therapist or psychologist. Sometimes, the mutually acceptable recommendation of a therapist can be put in to writing and made part of the court’s order. Alternatively, if both parents cannot agree on the mental health professional to be consulted, they might agree to permit the court to appoint a different expert at a later point in the case.
In deciding whether to award sole legal custody, or otherwise restricting a parent’s legal decision-making power, a judge will also consider a psychological evaluation of the parent(s). A psychological evaluation is generally beneficial if there have been significant problems in the past between the parents that have resulted in high conflict in the court system or that prevent the parents from working together in the best interests of the child. Consideration of a psychological evaluation would be important if there have been allegations of domestic violence or if there are concerns about the mental health or parenting fitness of a parent. Although there is no one single factor or type of evidence that a judge will weigh heavily in deciding whether to award sole legal custody, the address of positive moral values and proper emotional development of the children by the available custodian(s) is unquestionably a primary concern.
How to Acquire Sole Custody
If you reach a point where you believe sole legal custody is in your child’s best interest, the process for obtaining sole legal custody in Pennsylvania involves filing for a Modification of Custody Order that is already in place. Forms are available on the court’s website as well as at your county’s office of Court Administration. Depending on your county, the filing fees may vary. Once the forms have been completed they must be filed with the appropriate Courts based on the county where the child resides. After filing, you will be given a Rule to Show Cause hearing date. A rule to show cause hearing is basically just a hearing that allows the Judge to determine why a change in custody is needed.
While not always required, bringing an attorney to a rule to show cause hearing can help ensure that the hearing proceeds smoothly and the judge understands your reasons for requesting a change in custody. However, if you cannot afford an attorney or choose not to have one, you can still go before the Judge to plead your case.
During these hearings, there are no witnesses to the proceedings other than those involved in the case, and the hearings generally last no more than an hour or so. In fact, most Judges only spend about fifteen minutes hearing the arguments for both sides and will make a determination on how to proceed from there. From this point, the judge will either deny the modification of custody order request, modify the current order, or order for a hearing be scheduled in front of both Parents and any other necessary witnesses.
In the event that the Judge does schedule a hearing, you can expect the hearing to last anywhere from three to seven hours. There are often a number of witnesses who have been called to testify, and it is not uncommon for parties to represent themselves at the hearing rather than employ the services of an attorney. However, as this is a very serious matter, hiring an experienced lawyer for your family law case will help ensure your job goes as smoothly as possible, from start to finish!
Pros & Cons Of Sole Legal Custody
Sole legal custody is an advantage to a parent in Pennsylvania in that they have complete decision-making authority over the child. Some parents, whatever their personal situations, may be very certain about what their choices for their child should be. These decisions may be related to education, religion, or medical issues, and the parent with sole legal custody makes these decisions without needing agreement or consultation with the other parent.
However, there can be some major drawbacks when one parent has sole legal custody in Pennsylvania. Although it is not required in a custody case , a court may refer litigants to an educational seminar provided by a third-party. It is at this seminar that litigants typically learn about the legal process regarding custody, the impact of divorce on children, and the like. A seminar may also help shake loose those emotional barriers that keep the parents from effectively communicating. The lawyer for that parent with sole legal custody of your children may not support that parent’s position as much if the two parents cannot communicate at all. Sole legal custody, while an advantage in some ways, may also reduce or eliminate the possibility of at least attending the seminar together.
Changing Custody Orders
The Determination or Modification of a Custody Order is a Substantive Matter; Therefore, When Handling a Modification of Custody, You Must Do it in Accordance with the Pennsylvania Law.
When it comes to a modification of custody, there are two types of orders that can be modified. The first type of order that can be modified is a temporary order. A temporary order is an interim order that will stand until a final order is entered. Pursuant to PA Rule 1915.3, a temporary order may be modified at any time by the filing of an oral or written motion. Rule 1915.3 does not state that the modification of a temporary order must be based upon a change of circumstances. While a modification of a temporary order does not require a showing that there has been a change of circumstances, it is likely that the court would appreciate some support for the request to modify. The second type of order that can be modified is a final order. A final order is one that is issued after a full custody hearing. Thus, a final order fully adjudicates the parties’ custody matter and puts everything to rest, pending a modification of the final agreement. In order to modify a final custody order, a party must demonstrate that there has been a change of circumstances and that the modification is in the best interest of the child or the children. Motions to modify a custody order are governed by PA Rule 1915.4 and require the filing of written motion. The motion to modify a custody order shall be verified by the party moving for a modification. (Practice Tip: always verify a motion in Pennsylvania Family Law matters). The rule also states that upon the filing of the motion, the court "shall enter the matter on role for prompt disposition." There is no definition on what constitutes a prompt disposition. However, prompt disposition most likely would constitute a prompt hearing after the filing of the motion to modify. PA Rule 1915.4 (a)(2) states that "no conference … shall be held." The local rules of the specific Court can and often do impact the standard used when determining whether a modification of custody is in the best interest of the child. Thus, it is important to think about the local rules of custody matters consistently with the motion to modify.
Legal Aids and Resources
For those seeking sole legal custody in Pennsylvania, there are numerous resources and support networks available. The Pennsylvania Bar Association offers a comprehensive directory of attorneys who specialize in family law and child custody matters. This resource provides access to experienced legal professionals who can guide clients through the process of obtaining sole legal custody and provide valuable advice on related issues.
In addition, state-level legal aid organizations such as the Legal Aid of Southeastern Pennsylvania (LASP) offer services to low-income individuals and families. These organizations can help families navigate the complex legal landscape of custody and support issues. Through a network of dedicated staff and volunteers, legal aid providers aim to ensure that everyone has access to justice and the legal protections they need to thrive.
Moreover, the Superior Court of Pennsylvania provides a self-help center on its website with a wealth of information regarding child custody , including forms, relevant statutes, and instructions on how to fill out the required documentation. This resource is particularly useful for those who may not have the financial means to hire an attorney but still need to understand their rights and obligations under Pennsylvania law.
Child-centric organizations like CASA (Court Appointed Special Advocates) and KidsVoice can help provide additional resources and advocacy efforts for children whose parents are involved in custody hearings. These organizations assign trained and supervised advocates who represent children in court and ensure that decisions made are in the best interests of the children.
Finally, support groups and counseling services, both online and in-person, are available for those going through custody battles. These services offer attorneys as well as mental health counselors to educate and provide guidance throughout the stressful process.