Note: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.
Child custody is an issue of often overwhelming emotional overtone. An understanding of the tests applied by the Court in determining custody and the procedures utilized can help alleviate the anxiety inextricably attached to this issue and assist you in making sound decisions.
What are the different types of custody a court can award?
Initially, you should keep in mind that there is a distinction between “physical” custody and “legal” custody. Physical custody involves the actual physical possession of a child. Legal custody pertains to the right to make major decisions on behalf of the child including, but not limited to, medical, religious, and educational decisions.
There are five different types of physical custody as follows:
- Sole physical custody – The right of an individual to exclusive physical custody of the child.
- Primary physical custody – The right to assume physical custody of the child for the majority of the time.
- Shared physical custody – The right of more than one person to assume physical custody of the child with each person having significant periods of custody time.
- Partial physical custody – The right to assume physical custody of the child for less than the majority of the time.
- Supervised physical custody – The exercise of physical custody time during which an agency or responsible adult assigned by the court or agreed to by the parties monitors the custody interaction between the child and the individual involved.
Additionally, there are two types of legal custody as follows:
- Sole legal custody – The right of one individual to exclusive legal custody of the child.
- Shared legal custody – The right of more than one individual to legal custody of the child.
Where does the term “visitation” fit into the various types of custody that may be awarded?
While the term visitation once had a specific legal meaning that referred to the exercise of physical custody at the other parent’s residence or under the supervision of the other parent, the term now no longer has a specific legal meaning and is used now in reference to partial physical custody, shared physical custody or supervised physical custody, all of which are defined above.
How old can a child be and still be the subject of a custody order?
Generally, until the child’s eighteenth birthday.
The other parent and I still live in the same home. Can I get a custody order while we still live in the same home?
Yes. You can file for custody when you are living separate and apart in the same residence, but the order will not be effective until one of the parties leaves the home for a separate residence or the court awards exclusive possession of the residence to one of the parties.
How do I start a legal action for custody?
A complaint for the type of physical and/or legal custody you seek is filed with the court or a request may also be included as part of a complaint for divorce. In conjunction with your pleading you will be required to a Criminal or Abuse History Verification form which verifies if you or an adult household members have a criminal history involving certain crimes or whether there has been involvement of such persons with a Children and Youth Agency concerning abuse or involvement of the person with the court in a Protection From Abuse action.
Where is a custody complaint filed?
A custody complaint may be filed in any one of several counties depending upon the facts. The following are all possibilities:
- The home county of the child, which is basically the county where the child lived with the parents within the last six months before the complaint was filed;
- A county which may be the best county in which to bring the action because the child and parent(s) have a significant connection with that county;
- A county in which the child is present when the child has been abandoned or an emergency exists because of threats or mistreatment; or
- Other counties under special circumstances.
You should consult your attorney as to the appropriate county in which to file your action.
Do I have to file an answer to a custody complaint?
No. There is no default judgment in an custody case.
Is it possible to obtain a temporary custody order while the main case is pending?
Yes. Once the court determines that the person requesting the temporary relief is an appropriate party to bring a custody action, the court upon application to it can make an interim order. There are special rules of procedure that govern the court’s handling of such a request.
What standard does the court use in determining who shall have custody of the child?
The test applied by the Court is very simple to state yet is very broad in its application. The standard is simply what is in the best interest of the child. This is determined by considering all the relevant circumstances of your case which have an effect on your child’s physical, intellectual, mental and spiritual well being.
By statute, the court is required to consider the following factors:
- Which party is more likely to encourage and permit frequent and continuing contact between the child and the other party.
- The present and past abuse committed by a party or a member of the party’s household, whether there is a continued risk of harm to a child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
- The parental duties performed by each party on behalf of the child.
- The need for stability and continuity in the child’s education, family life and community life.
- The availability of extended family.
- The child’s sibling relationships.
- The well reasoned preference of the child based on the child’s maturity and judgment.
- The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
- Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
- Which party is likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
- The proximity of the residences of the parties.
- Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
- The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
- The history of drug or alcohol abuse of a party or a member of a party’s household.
- The mental and physical condition of a party or a member of a party’s household.
- Any other relevant factor.
Do any legal presumptions apply in custody cases?
In a case between parents, no presumption applies that either parent should be awarded custody regardless of the age of the child.
In cases between a parent and a third party, there is a presumption in favor of the parent which can only be overcome by the presentation of clear and convincing evidence to the contrary.
In cases between third parties and not involving a parent, no presumption applies.
Does the mother of a child born out of wedlock have a greater right to custody than the father?
No. The best interest of the child controls.
Is our written agreement concerning the custody of our child(ren) binding on the Court?
No. Contracts concerning the custody of minor children can always be put aside if to do so would be in the best interest of the child.
We have now been separated for many months, and our child(ren) has/have resided with me since that time. Does that fact weigh in my favor in our custody dispute?
Usually, yes. Our courts recognize that continuity and stability are important elements in a child’s emotional development and are elements that must be recognized in a custody dispute. Continuous residence of child(ren) with one parent may indeed be controlling in a custody dispute.
Our children are quite young. Will the court automatically grant custody to the mother?
Pennsylvania does not recognize a “tender years doctrine” that would favor a mother in a custody proceeding involving very young children. Our courts are to act in a gender neutral manner when deciding custody disputes.
I work and must necessarily be away from home for several hours each day. The other parent does not work and is able to be with the child(ren) all day. Will this deprive me of the opportunity to be awarded custody of the child(ren)?
While one of the factors to be considered by the court is each party’s availability to care for the child or ability to make appropriate child care arrangements, a reasonable evaluation will focus on the quality of the time spent with a child as opposed to simply the quantity of time spent.
My former spouse has remarried and I have not. Can my spouse’s remarriage be a factor in his/her favor in our custody case?
No. There is no presumption which favors a two parent family over that of a single parent family in a custody proceeding.
My child has expressed a preference to live with me. Will this factor be given weight by the Court in a custody proceeding?
The expressed preference of a child is one factor in determining custody, but the weight to be accorded such preference will vary according to the age, intelligence, and maturity of the child as well as the soundness of the reasons given for the preference.
We have more than one child. What is the possibility that the court may award custody of one or more children to each of us?
The possibility is limited. There is a strong policy in our law that in the absence of compelling reasons to the contrary, siblings should be raised together whenever possible.
How important are religious considerations in a custody dispute?
While religious instruction is certainly an important matter and will be given consideration in a child custody matter, it is not determinative of the issue.
My spouse has a good job and an income that is much greater than mine. Will this give my spouse an advantage in a custody dispute?
No. The relative wealth of the parties is irrelevant unless one of the parents is so financially distressed as to be unable to provide adequately for a child.
My former spouse is now in a non-marital relationship with another person. Will this relationship prevent my former spouse from obtaining custody of our child?
Not necessarily. The only relevance to a person’s non-marital relationship is the effect of that relationship on the child. If the evidence shows that the parent’s conduct does not adversely affect the child, then no further consideration will be given to the fact.
I would prefer that the other parent of my child(ren) have no partial custody or visitation with my child(ren). What are the chances?
While sole custody is an option available under the law, it generally will be granted only when the other parent’s exercise of custody presents a danger to the child (e.g. criminal behavior, drug or alcohol abuse) or is otherwise clearly not in the child’s best interest. As a practical matter, courts will usually endeavor to maintain at least a minimal relationship between that parent and child.
Can restrictions be placed on the other parent’s partial custody or visitation rights?
Yes. In appropriate circumstances, the Court may impose restrictions on a person’s rights of partial custody or visitation. This will not be imposed routinely and is usually done where particular environments to which the person may expose the child present a serious potential emotional or physical threat to the well being of the child. A court may require under such circumstances that the parent’s partial custody or visitation be exercised in a supervised environment.
Once a custody order has been entered, can it be modified later?
Yes. Custody orders are modifiable when it can be demonstrated that to do so would be in the best interest of the child. This is so regardless of whether or not there has been a substantial change in the circumstances of either the child or the parties since the entry of the previous order.
Will my child have to testify in our custody case?
If your child is old enough and mature enough to understand the meaning and consequences of taking an oath to tell the truth, your child will likely participate in the trial process. But his/her testimony will generally be given in the judge’s chambers in a much more relaxed atmosphere than that of the courtroom. The judge generally asks the child a series of questions relevant to the issue. Each party is absolutely entitled to have their attorney present, and each attorney is also given the opportunity to ask questions. A court reporter is present to record all the questions and answers.
Can my attorney place into evidence written reports from doctors, psychologists, home evaluators, teachers or other experts?
No. In a contested child custody case, such reports are not admissible into evidence because the reports are not subject to cross-examination. The author of the report must be produced at trial, sworn to tell the truth, examined as a witness and be subject to cross-examination.
Can the Court appoint experts to participate in our custody case?
Yes. In custody cases, the Court may appoint psychologists and/or evaluators. A home evaluator will come to your home. Stepparents, significant others, other family members and other alternative care givers should all be present if at all possible. Information about the background of these persons, the present arrangements you have for your child and future plans will be discussed.
If the court utilizes a psychologist, the psychologist will usually meet with each parent and the child(ren). The psychologist may also ask to meet with any significant others.
Who will preside over our case?
In full custody cases, a judge presides over the case from beginning to end. In cases of partial custody or visitation, you will usually appear first before a court officer who attempts to help the parties reach a consent arrangement. If the parties cannot consent to any order, they will be referred to a hearing officer, who is a lawyer employed by the Court. After testimony, the hearing officer will make a written recommendation to which either party may file objections within ten (10) days thereafter.
How can we get a shared custody order?
You can obtain shared custody if:
- The parties agree to it;
- One or both parents apply to the Court for it; or
- The Court decides on its own that such an order would be in the best interest of the child.
I think it would be a good idea if the other parent could be made to attend counseling. Can that be arranged?
It is possible to request the Court to order parents to attend counseling sessions. The Court, by statute, has the power to compel the parties to attend. (See the discussion on Allegheny County’s mandatory counseling and mediation program.)
The other parent of my child(ren) wants to move with them a significant distance from the area of their present residence. Do they have the right to do that?
In our mobile society, relocation of the children is a very common concern. Pennsylvania has addressed the relocation issue by means of specific statutory provisions.
Relocation is defined as a change in residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights.
A parent or party who has custody of a child and desires to relocate must follow a careful process before relocation can occur unless the non-relocating parent or party with custody rights consents to the relocation or a court approves the proposed relocation.
A party desiring to relocate with the children must give advance notice of the intention to relocate in writing by certified mail to be signed for by the other party at least 60 days prior to the date of the intended move in normal cases. Special exceptions can apply to the 60 day notice requirement.
The notice must contain very specific information as set forth by statute, all of which is relevant to the proposed move. The mailing of the notice must also include a counter-affidavit that the non-relocating party can use to object to the proposed relocation.
The non-relocating parent or person with custody rights has 30 days after receiving the notice to file with the court an objection to the proposed relocation. If such an objection is filed, a hearing on the matter will be scheduled. If no such objection is filed, the party proposing the relocation can file a follow up pleading with the court which will include a verification of the service of the proposed relocation notice on the other side and a proposed order of court permitting the relocation.
If a party attempts to relocate without following the process, that party can be subject to significant adverse consequences including a ruling against the proposed relocation, ordering a return of the child and payment of counsel fees and expenses incurred by the other side or a finding of contempt and the imposition of sanctions.
If a hearing is conducted by the court on the request for relocation, what are the factors the court will consider in making its ruling?
The statute lists ten factors for the court to consider with extra emphasis to be given to the safety factors. The ten factors are:
- The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child’s life.
- The age, developmental stage, needs of the child and the likely impact relocation will have on the child’s physical, educational and emotional development taking into consideration any special needs of the child.
- The feasibility of preserving the relationship between the non-relocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
- The child’s preference taking into consideration the age and the maturity of the child.
- Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
- Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
- Including, but not limited to, financial or emotional benefit or educational opportunity.
- The reasons and motivation of each party for seeking or opposing the relocation.
- The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.
- Any other factor affecting the best interests of the child.
- The party proposing the relocation has the burden of establishing that the relocation will serve the best interests of the child and both parties have the burden of establishing the integrity of their motives in either seeking the relocation or seeking to prevent it.
I have shared legal custody of my children. Am I entitled to school, medical, dental and religious records of my children?
Yes you are. By statute if you have sole or shared legal custody you are entitled to access to the following:
- The medical, dental, religious and school records of your child;
- The address of the child and the other party; and
- Any other information
You can not be denied this information based upon your physical custody schedule.
However, you can not obtain:
- The address of a victim of abuse;
- Confidential information from an abuse counselor or shelter; or
- Information protected by statute concerning domestic and sexual violence
I am a grandparent. What custodial rights may I have concerning my grandchildren?
Grandparents are considered third parties, but they do have the right to bring custodial actions.
First, grandparents and other third parties can bring an action for any form of custody, physical or legal, if they stand in the relationship of “loco parentis” to the child. Loco parentis is, of course, a technical legal term that is defined by our courts to refer to a person who without opposition from a natural parent puts themselves in the situation of a lawful parent by assuming the obligations incident to a parental relationship without going through the formality of a legal adoption.
Second, grandparents, unlike other third parties, can also bring an action for any form of custody, physical or legal, if three criteria are met even if they are not in the status of loco parentis. The three criteria are:
- The grandparent’s relationship with the child began either with the consent of the parent or with a court order;
- The grandparent assumes or is willing to assume responsibility for the child; and
- If one of the following conditions are met:
- The child has been determined to be dependent under the terms of the laws governing juveniles;
- The child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse; or
- The child has resided with the grandparent for at least 12 consecutive months (excluding short absences) and is removed from the home by the parents. If condition c.) is the case, the action must be started within 6 months from the time the child is removed from the grandparent’s home.
Third, a grandparent may choose to seek a more limited form of physical custody such as partial custody or supervised physical custody. One of the following three conditions must be met for this more limited custodial arrangement. These conditions are:
- The parent of the child is deceased;
- The parent’s of the child have been separated for a period of at least 6 months or have initiated and continued a divorce action; or
- The child resided with the grandparent for at least 12 consecutive months (exclusive of short absences) and the child is removed from the grandparent’s home by the parents. However an action under condition 3) must be brought within 6 months of removal of the child from the grandparent’s home.
Can I get the Pennsylvania courts to enforce our current custody order, which is an out-of-state order?
The other parent always has an excuse as to why the children aren’t available to be with me during my partial custody time. What can I do?
There will always be occasions when unavoidable conflicts arise in the schedules of the parties or the child(ren). Try to be reasonable. If there appears to be a regular pattern of defeating your partial custody time, start a logbook of the dates and the reasons given. If a clear pattern emerges, this may justify filing legal papers to start a review of the situation. In extreme cases, it may even result in a change of custody.
I think the other parent will simply ignore the custody order. If that happens, what will the Court do about it?
Willful disobedience of a Court Order can result in the offending party being held in contempt of court. Contempt in such cases may be punished by one or more of the following:
1. Imprisonment for up to six months;
2. A fine of up to $500.00; or
3. Probation for up to six months.
Additionally, repeated refusal to comply with a court’s custody order can result in a transfer of custody of the child(ren) to the non-offending party.
Do you have any tips on how to conduct myself now that we are separated?
Glad you asked! Here are some time tested does and don’ts universally accepted by those experts who deal with custody issues:
- Listen to your kids and talk to them
- Remember that kids do not belong in the middle of your dispute
- Maintain regular contact with your kids including phone contact
- Let the other side know well in advance if you cannot keep a scheduled contact with your child(ren)
- If you are the custodial parent, make sure the kids are ready to go on time for visits with the other parent and that you are home when they are scheduled to return
- Let your kids know that both parents love them and are there for them
- Blame your kids for your domestic problems
- Use the children as messengers
- Use the children as spies to determine what the other parent is up to
- Argue with the other parent in front of the kids
- Disparage the other parent or his/her family in front of the kids
- Ask you children which parent they love best
- Attempt to make the child your confidante or ally
From representation in divorce matters with related economic claims to difficult child custody or support disputes, I offer legal advice directed to your specific situation and needs. Contact my office online or call 866-942-0074 to schedule a complimentary 30 minute consultation to discuss your concerns today. My office, located near the Allegheny Valley exit of the Pennsylvania Turnpike and the Harmarville exit of the Route 28 Expressway, provides a convenient environment in which to discuss your family law needs.