Pennsylvania Family Law and Divorce
Lisa Marie Vari & Associates, P.C.

Sole versus shared legal custody in Pennsylvania

 Pennsylvania permits varying degrees of physical custody: Supervised custody, partial custody, shared custody, primary custody, and sole custody. Legal custody, however, defined as "the right to make major decisions on behalf of the child, including, but not limited to, medical, religious, and educational decisions," may only be shared or sole. Shared legal custody requires the parents to cooperate to make these decisions for their children, effectively giving each parent a veto over the wishes of the other parent. The lengths to which sole legal custody extend was explored by the Pennsylvania Superior Court in 2012 in a case called M.P. v. M.P.

In M.P., the child's mother was granted sole legal custody and desired to take her child to Ecuador to visit family. The child's father objected and sought court intervention. The court initially granted the father's request that mother not be permitted to take the child to Ecuador.

Upon an appeal from the child's mother, the Superior Court said that, by permitting father to veto mother's plans to travel with the parties' child to Ecuador, the trial court had effectively implemented shared legal custody, which was contrary to the prior award of custody. The Superior Court further indicated that changing legal custody from sole legal custody to shared legal custody would require father to file a petition to modify the custody arrangement, which was not done in this case. The Superior Court, therefore, permitted mother to travel to Ecuador with the parties' child, over father's objections.

In a similar but opposite case, Hill v. Hill, the Superior Court had previously reviewed a custody order that appeared to grant shared legal custody to the parties, but "in the event of a disagreement, mother's preference shall prevail." The Superior Court said there that this was an award of shared custody in name only, as to give mother the final say was to effectively create sole legal custody.

These cases make clear that an award of sole legal custody in Pennsylvania give to the sole legal custodian an absolute right to make these decisions for the child, without consideration of the other parent's wishes. The other parent's only recourse is to seek a modification of the legal custody arrangement.

John M. Schaffrenek 

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