There are three different types of child custody that you need to be aware of:  (1) LegalCustody; (2) PhysicalCustody; and (3) SharedCustody.

• (1) Legal Custody:  legal custody is the right tomake decisions affecting the child’s life; most ofthetime legal custody is shared by the parents,evenaftera marriageend.
  • (2) Physical Custody: physical custody means the actual physical possession of thechild(i.e., physical care andcontrol of the child), and
  • (3) Shared Custody:  Custody may be characterized either as solecustody, (i.e., full custody), or sharedcustody, (i.e., joint custody).  Shared custody canbeeither legalorphysical, or both.  Most cases involve shared legal custody.

Jurisdiction for Child custody:

Philadedelphia has adopted the Uniform Child Custody Jurisdictionand Enforcement. Its purpose is toprevent inter-statecourt disputes over child custody and visitation, including initial determinations and modifications.The Act contains rules for determining the child’s home state,which has exclusive continuing jurisdiction.

• (1) The homestate is generally where the child currently resides and has resided for 6months prior to the beginning of the custody proceedings;
  • (2) If no state meets that criteria, then jurisdictionis in the state that was the child’s home state in the past 6months, assuming one of the child’s parents or guardians continues to live in that state, and
  • (3) If no state has jurisdiction, and the child and at least one parent have a significant connection with a state, AND there is substantial evidence within that state that is relevant to the child’s care and protection, then a court in that state can enter ormodify a custody order.

Exclusive Continuing Jurisdiction:

The court that makes the initial custody determination continues to have exclusive jurisdiction, unless:

• (1) The parties no longer reside in that state; or
  • (2) The child no longer has a significant connection to that state, including the availability of relevant evidence.

DecliningJurisdiction:

Even if a cour that has proper jurisdiction, it may decline to exercise that jurisdiction if it determines that it is an inconvenient forum based on the following factors:

• (1) There is domestic violence as it relates to the state best suited to protect the child;
  • (2) The length of time the child has resided outside of Philadelphia;
  • (3) The distance between the Philadelphia court and the other court that would assume jurisdiction;
  • (4) The parties’ relative financial circumstances;
  • (5) Any agreement of the parties as to jurisdiction;
  • (5) The nature and location of relevant evidence(including the child’s testimony);
  • (6) The ability of each state’s court to decide the issue expeditiously;
  • (7) The familiarity of each court with the facts and issues in the pending litigation; and
  • (8) NOTE that a court may also decline jurisdiction based on“unjustifiable conduct”such as the wrongful removal of a child from another state.

Temporary Emergency Jurisdiction:

A courtmay assume temporary emergency jurisdiction in order to protect the child from abuse (actual or threatened).

Enforcement of Other State’s Orders:

This may bedonethrough the registrationoftheorder,withorwithout asimultaneous request forenforcement by submitting 2copiestotheappropriatePhiladelphia court.This allowsthe receivingcourt tograntany relief available forenforcement ofthe registered order.

Expeditedenforcement: Expeditedenforcement occurs throughtherequirement of acourt appearance at a hearing onthefirst judicialdayafter theorder hasbeenserved. The petitionerwill be awarded immediatephysicalpossessionof thechild, unless:

• (1) The orderwas not property registered;
  • (2) The issuingcourt didnot have jurisdiction;
  • (3) The orderwas stayedorvacated;
  • (4) The respondentwasentitledtonotice,but didnotreceive noticebeforethe orderwas issued;or
  • (5) The orderwas stayedorvacatedafter beingregistered.

BestInterest of theChild:

The Best Interest of the Child standardpresumes thatparentsare inthebestpositiontocare for their childunless proven otherwise.There is nolonger a presumptionofcustody in favorofthe mother,even for youngchildren (i.e., the tenderyears presumption does not exist anymore).

Manycourts considerwhohasbeenthe primarycaretaker(onceaseparationhas occurred) as astrongindicator inthe caseof a child custodybattle. Philadelphiahas heldthatthe primary caretaker doctrinefocusesontheday-to-daycare,aswellasthe quantity andqualityoftimethechild spends witheach parent atthe timeofthe hearing (rather than time spent with the childinthe past.)

Factors for child custody:

There are16factors for the courtstoconsider whendecidingwhat isin the best interestsofthechild.

• (1) Which partyismore likely toencourageandpermit frequent andcontinuingcontact between the childandthe other party;
  • (2) Present andpast abusecommittedbya partyormemberofthe party’shousehold;
  • (3) Parentaldutiesperformedby eachpartyonthe child’sbehalf;
  • (4) The needforstability and continuity inthechild’s life, includingeducation, family life,andcommunity life;
  • (5) The availabilityof extendedfamily;
  • (6) The child’srelationships with siblings;
  • (7) The well-reasoned preference ofthechild, based onthechild’smaturity and judgment;
  • (8) The attemptsof aparent toturnthe childagainsttheotherparent,except incases of domestic violence where reasonable safetymeasures are neededto protect the childfromharm;
  • (9) Which partyismore likely tomaintaina loving, stable,consistent, andnurturingrelationship with thechild;
  • (10) Which partyismore likely toattendtothe dailyphysical, emotional, developmental, educational,and special needsofthe child;
  • (11) The proximityofthe parties’ residences;
  • (12) Each party’s availability tocare for the childor abilitytomake appropriatechild-care arrangements;
  • (13) The levelofconflict between the partiesandthewillingnessandabilityofthe partiesto cooperate withone another;
  • (14) The historyof drugor alcohol abuseof apartyormemberofthe party’s household;
  • (15) Thementalandphysicalconditionofa partyormember ofthe party’shousehold; and
  • (16) Any other relevant factor.

• NOTE: Inconsideringthesefactors, the courts shouldgive weightedconsiderationto the factors that affect thechildsafety:
  • Also note that inmakinga determinationof child custody usingthese factors, nopartymayreceive preference based upongender.
  • Furthermore, the court isrequiredtoexplainthe reasons for its awardontherecordor ina writtenopinionororder.

Federal Parental Kidnapping PreventionAct:

This Actmandatesthat statesgive full faith and credit toanother state’s childcustody determination if jurisdictionis proper.  The failure tocomply with the Federal Parental Kidnapping PreventionAct resultsonlyinfull faith andcreditnotbeinggiventoanother state’schild custody order.  The jurisdictionand modificationrequirements under theFederal Parental Kidnapping PreventionAct are verysimilar to the UniformChildCustody JurisdictionandEnforcement Act.  Part of the difference is that theemergency jurisdiction under the Federal Parental Kidnapping PreventionAct is determined to be continuing rather than temporary.

AdditionalConsiderations when awarding child custody:

• (1) Raceor religioncannot be determiningfactors,
  • (2) Priorsexualconductcannotbe a determiningfactor, and
  • (3) Gendercannotbe a determiningfactor.

Divorce Lawyer R. Badet is an experienced divorce lawyer and child custody lawyer and dedicated to helping his clients at every stage of the divorce process and child custody process. He is also known in Philadelphia and the surrounding counties as Child Custody Lawyer R. Badet. His practice includes simple and complex divorces, alimony, spousal support, child support, and child custody. Divorce Lawyer R. Badet is a knowledgeable divorce attorney and child custody attorney.  He has the experience needed to obtain the best possible outcome for your situation! Visit his website to learn more about your legal rights and options: www.lawyersfordivorces.net or call his office for a free consultation @ 267-277-2641.  He is a highly respected and experienced attorney with many years of experience. He is an experienced litigation attorney who represents his clients in both Divorce matters and Child Custodymatters. If you are looking for a Divorce Lawyer near you or a Child Custody Lawyer near you and you live in Philadelphia County, Delaware County, Bucks County and Montgomery County, you should definitely callDivorce Lawyer R. Badet@ 267-277-2641.