In Pennsylvania, there are two forms of child custody: legal custody and physical custody. Under Pennsylvania’s Child Custody Act, “legal custody” is defined as: “the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.” “Physical custody” is defined as: “the actual physical possession and control of the child.” Generally, legal custody is either “shared legal custody” or “sole legal custody.” Shared legal custody is where the parties must consult with each other in advance of making any joint decisions that majorly impacts the child’s life. Sole legal custody is where only one parent makes the major decisions on behalf of the child’s life regarding medical, religious and educational decisions.
In the 1990s, some trial courts started making legal custody orders shared legal custody orders but enabled one of the parents to be the “tiebreaker” and have final decision-making authority. Normally, when there is an impasse on a legal custody issue, and the parties have joint legal custody, the court is the tiebreaker after a party files a petition to resolve the impasse. In the case of Hill v. Hill, 619 A.2d 1086 (Pa. Super. 1993) the trial court awarded the parents shared legal custody, but provided: “in the event of disagreement, mother’s preference would prevail.” The Pennsylvania Superior Court reversed the trial court in entering such an order as it found that the trial court had given “the father authority in name only and deprived him of a legal remedy because he was already awarded ‘semi-shared legal custody.’” The Superior Court further stated in Hill: “the concept of shared legal custody does not contain the principle of giving one parent final authority in the event of a dispute.” After the Hill decision, it appeared that a line was drawn in the sand that a trial court can either grant sole legal custody to a parent or shared legal custody, but not a tiebreaking authority to either party.
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