The General Assembly clearly defined the public policy of the Commonwealth in custody actions in §5301 where the standard for all custody cases has been identified as THE BEST INTERESTS OF THE CHILD. In addition, the public policy is to "assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents and continuing contact of the child or children with grandparents when a parent is deceased, divorced or separated."

What exactly is custody?

For your information, below are the statutory definitions of how our elected officials have answered the question above along with a few other terms. Not only are these terms and definitions interesting reading, a specific understanding of each is imperative if you are a parent involved in a custody action in this commonwealth.

In my client consultations over the years, many have had a desire to pursue "full custody" of their child or children. As you can see, the term "full custody" is absent from the list of defined terms. I believe what my clients were requesting is known in Pennsylvania as "sole" custody. §5303 of the Domestic Relations Code provides "the court shall award sole custody when it is in the best interest of the child." So far, I have litigated one case in which the court awarded sole legal and physical custody to a parent (a father by the way). I guess what I am writing here is that sole custody is not very likely in most cases as you can see from the public policy statement of the General Assembly continuing contact with both parents is desired (of course there are exceptions to every rule and I suppose even public policy). And, the first step in any custody action is reasonable expectations in the outcome.

§ 5302. Definitions

The following words and phrases when used in this subchapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:

"CHILD." Any unemancipated person under 18 years of age.

"LEGAL CUSTODY." The legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions.

"PARTIAL CUSTODY." The right to take possession of a child away from the custodial parent for a certain period of time.

"PHYSICAL CUSTODY." The actual physical possession and control of a child.

"SHARED CUSTODY." An order awarding shared legal or shared physical custody, or both, of a child in such a way as to assure the child of frequent and continuing contact with and physical access to both parents.

"VISITATION." The right to visit a child. The term does not include the right to remove a child from the custodial parent's control.

In accordance with the public policy of this commonwealth, every parent has the right to parent their child. Of course, what goes hand-in-hand with rights are responsibilities. These responsibilities include paying for their child's needs, teaching the child about the world around them, loving the child for who he or she is, and the list goes on and on. The list does not include putting the child in the middle of a custody dispute with the other parent. A five year old child does not need to know "daddy's not paying his child support" or "mommy has another boyfriend." Sorry...I will step down from my soap box now. But, please note every judge who has ever sat on a family court bench would agree with the previous statement.

At the beginning of this section on child custody I used the term "best interest of the child." This statement is extremely broad and has been purposely interpreted by the courts in such a fashion as many factors are present in a family or a child's life that could impact on a decision of custody. Below is an excerpt from a recent appellate court decision that sets forth the standard in custody:

The paramount concern in a child custody case is the best interests of the child. A determination of the best interests of the child is based on consideration of all factors which legitimately have effect upon the child's physical, intellectual, moral and spiritual well-being. The court in a custody action has the obligation to consider all relevant factors that could affect the child's well-being.

So unlike equitable distribution and alimony where the General Assembly has delineated factors the courts must consider in reaching their decisions, courts are left with deciding not only what factors are relevant but how much weight to place on each factor. In custody cases, judges have broad discretion in reaching their decision.

Jurisdiction

What is jurisdiction? Black's Law Dictionary defines jurisdiction as "the powers of courts to inquire into facts, apply the law, make decisions, and declare judgment." Essentially, jurisdiction allows a court to hear the case and must exist at the time the case is initiated or brought before the court. In custody actions, the Commonwealth of Pennsylvania has enacted a specific set of statutes dealing with many aspects of a custody case, including jurisdiction. This group of statutes is the Uniform Child Custody Jurisdiction and Enforcement Act or commonly abbreviated UCCJEA. Granted in most cases, jurisdiction is not at issue as the child and both parents are residents of this commonwealth; however, if any of the aforementioned parties are not present or residents of this state then jurisdiction could be at issue. For an initial custody action, the relevant statute for jurisdiction is:

§ 5421. Initial child custody jurisdiction

(a) GENERAL RULE.-- Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth has jurisdiction to make an initial child custody determination only if:

(1) this Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;

(2) a court of another state does not have jurisdiction under paragraph (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under section 5427 (relating to inconvenient forum) or 5428 (relating to jurisdiction declined by reason of conduct) and:

(i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence; and

(ii) substantial evidence is available in this Commonwealth concerning the child's care, protection, training and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under section 5427 or 5428; or

(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3).

(b) EXCLUSIVE JURISDICTIONAL BASIS.-- Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this Commonwealth.

(c) PHYSICAL PRESENCE AND PERSONAL JURISDICTION UNNECESSARY.-- Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination.

Jurisdictional issues can be complicated, especially when parents and children relocate to other states and countries. And, often during the minority of a child, jurisdiction can shift between jurisdictions and, as such, jurisdictional issues can always be present in a case.

Relocation

Speaking of relocation issues, this is probably an appropriate time to discuss when a parent desires to move from Pennsylvania to another state. Although I have never had to make a custody decision permitting or denying relocation, I have spoken to several judges who have had to make these decisions and to a person, each judge told me this is the most difficult custody decision they had to make on the bench. On one hand you have a parent who would like to move to undertake a better job, college opportunities, be nearer family and friends or number of other legitimate reasons, but on the other hand is a parent who loves their child and perhaps has a significant bond with the child and the move could place the relationship in jeopardy. In these types of cases, it is hard to imagine being able to make a decision which will satisfy both parents and the child.

Since 1990, courts have been guided by criteria set forth by the Superior Court in a case known as Gruber v. Gruber. The Gruber Court identified three (3) criteria for subsequent court to consider when faced with a relocation request. The three prongs of Gruber are:

(1) The potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent;

(2) The integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and

(3) The availability of realistic substitute arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.

Nevertheless, courts wrestle with these decisions even with the guidance of Gruber and the subsequent cases interpreting the Gruber factors. Unfortunately for all parties involved in custody actions, relocations cases are more prevalent today, due in large part to the increased mobility of our society and the diversity of our culture.

But custody relocations do not necessarily involve moves across country. Several Pennsylvania appellate court decision have held the factors set forth in Gruber are equally applicable to moves from one Pennsylvania county to another.

In the end, any parent involved in a non-intact familial relationship cannot simply pick up and relocate across the state or country with a child without a judicial review of the circumstances involved in the proposed move.

Grandparents

§ 5311. When parent deceased

If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights, or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application.

§ 5312. When parents' marriage is dissolved or parents are separated

In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.

§ 5313. When grandparents may petition

(a) PARTIAL CUSTODY AND VISITATION.-- If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or visitation rights, or both, to the child. The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship.

(b) PHYSICAL AND LEGAL CUSTODY.-- A grandparent has standing to bring a petition for physical and legal custody of a grandchild. If it is in the best interest of the child not to be in the custody of either parent and if it is in the best interest of the child to be in the custody of the grandparent, the court may award physical and legal custody to the grandparent. This subsection applies to a grandparent:

(1) who has genuine care and concern for the child;

(2) whose relationship with the child began with the consent of a parent of the child or pursuant to an order of court; and

(3) who for 12 months has assumed the role and responsibilities of the child's parent, providing for the physical, emotional and social needs of the child, or who assumes the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters) or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness. The court may issue a temporary order pursuant to this section.