How does Pennsylvania define and differentiate between Legal Custody and Physical Custody?

Mar 8, 2024 | Family Law

Kaitlyn Smearcheck, Esq., (717) 221-7963,

In Pennsylvania, custody determinations are decided in the child’s best interest. Parents may be able to resolve custody issues between themselves by way of negotiation and agree to a custody stipulation; however, if the parents are unable to agree, the court decides the custody of the child by way of a Custody Order. A Custody Order is a written order signed by a judge. It defines the amount of time the parent or other caretaker will spend with the child (physical custody) and how major decisions are made about the child (legal custody). Custody Orders are modifiable.

Legal custody, as defined by Pennsylvania law, is a parent’s “right to make major decisions on behalf of the child, including but not limited to, medical, religious, and educational decisions.” 23 Pa.C.S.§ 5322(a). There are two types of legal custody: shared and sole. When two people share legal custody, the parents must confer with one another prior to making a child’s major decisions. Sole legal custody gives one parent the right to make the child’s major decisions without concurring with the other parent. Typically, in Pennsylvania, both parents share legal custody.

Physical custody, as defined by Pennsylvania law, is a parent’s right to “the actual physical possession and control of a child.” 23 Pa.C.S.§ 5322(a). The physical custody of the child refers to where the child resides daily. Pennsylvania recognizes the five following types of physical custody: (i) primary physical custody; (ii) shared physical custody; (iii) partial physical custody; (iv) supervised visitation; and (v) sole physical custody. Primary physical custody, as defined by Pennsylvania law, is a parent’s “right to assume physical custody of the child for the majority of time.” Partial physical custody is “the right to assume physical custody of the child for less than the majority of the time.” 23 Pa.C.S.§ 5322(a). For partial physical custody, it is a parent’s right to unsupervised visitation, and the duration of custody periods may span, including but not limited to, a few hours every week, a few hours a day, or every other weekend. Shared physical custody is “the right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child.” 23 Pa.C.S.§ 5322(a). Physical custody can be supervised when a party is deemed to be a danger to the child. Supervised physical custody, defined by Pennsylvania law, is “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 [awarded supervised physical custody].” 23 Pa.C.S.§ 5322(a). Visitation can be supervised by a relative, friend, or a county agency. In rare cases, sole physical custody can be awarded in which a parent has the “right to the exclusive physical custody of the child,” and the other parent has no physical custody of the child whatsoever. 23 Pa.C.S.§ 5322(a).

In many cases, after weighing a child’s best interest, courts award both parents shared legal custody of the child, while physical custody is apportioned between them.

If you are filing for custody of your child, have been named as a defendant in a custody action, or need to modify a custody order, then it is important to understand the law and how it may apply to you and your child. For additional information, please contact the family law attorneys at Tucker Arensberg or call (717) 221-7952.

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