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Child Custody in Pennsylvania

What is Child Custody in Pennsylvania

Pennsylvania child custody refers to the legal right to keep, control, guard, and care for a minor child after a divorce in Pennsylvania. A minor child in Pennsylvania is an unemancipated individual under 18. Child custody may be resolved between divorcing parents through negotiation and outlined in a marital settlement agreement which will be presented to the court for approval. If divorcing parties cannot agree on child custody, the matter will be determined in court.

A Pennsylvania court issues a custody order when a child custody case is concluded. Usually, a custody order will include information on parenting exchanges, make-up visitation, holiday visitation, transportation between visits, and other relevant issues specific to a child custody case. Multiple custody orders may be used by a court to resolve various aspects of a child custody case as it proceeds. A custody order is a formal order signed by a judge defining the amount of time the parent or other caretaker may spend with the child and how important decisions are made for the child. The judge's determination in a child custody case is based on the evidence presented by both divorcing parents in court.

Child Custody Laws in Pennsylvania

Pennsylvania child custody laws are contained under Chapter 53, Title 23 of the Consolidated Statutes of the state. Per Pennsylvania's child custody laws, the basic consideration in determining custody is the child's best interest. Child custody laws are established to protect the child's welfare, with Pennsylvania courts applying established laws to mitigate the emotional toll of divorce on the child.

In determining what is in the child's best interest, the factors considered by the court include:

  • Which divorcing party is more likely to encourage and allow the child to have regular and continuing contact with the other divorcing party.
  • Abuse, both past and current, perpetrated by either divorcing party or a member of either party's home.
  • Whether a continued risk of harm to the child or either divorcing party exists
  • Which divorcing party is more capable of protecting and supervising the child
  • What each divorcing party does to parent the child.
  • The requirement for continuity in the child's education, family life, and community life.
  • The extended family's availability
  • The child's relationship with siblings (if any)
  • Which divorcing party the child prefers to reside with. In determining this, the court will assess the maturity and judgment of the child and ascertain that the child has carefully thought through the choice.
  • Any attempt by either divorcing party to turn the child against the other party, except in instances of domestic violence or abuse where reasonable safety measures are required to protect the child from harm
  • Which divorcing party is more likely to establish a loving, healthy, stable, consistent, and supportive relationship with the child
  • Which divorcing party is more likely to take care of the child's daily physical, emotional, developmental, educational, and unique needs
  • The distance between the residences of the divorcing parties.
  • The availability of each divorcing party to care for the child or the capacity to arrange for proper childcare
  • The extent of any conflict between the divorcing parties and their desire and capacity to collaborate. A party's efforts to protect the child from abuse by the other divorcing party do not constitute proof of reluctance or inability to cooperate.
  • The physical and mental condition of a divorcing party or a member of that party's household
  • Any other relevant factor

Per Pennsylvania child custody laws, the following persons may file for child custody in the state:

  • A parent of the child
  • An individual who has acted in loco parentis to a child. Pennsylvania considers an individual to have acted in loco parentis if that person is not a legal parent of the child, but the person has acted as a parent and assumed the responsibilities of parenthood for a certain period with the consent of one of the child's parents or other legal custodian or pursuant to a court order.
  • A grandparent who is not considered in loco parentis to the child, if:
    • The grandparent is allowed by the parent of the child to develop a relationship with the minor, or the court ordered that the grandparent and the child be permitted to develop a relationship; and
    • The grandparent intends to take responsibility for the child; and one of the following conditions is fulfilled:
      • The court has adjudged the child dependent pursuant to Pennsylvania's child abuse and neglect law; or
      • The court finds that the child is significantly at risk as a result of parental abuse or neglect, substance abuse, incapacity; or
      • The minor has resided with the grandparent for a minimum of 12 successive months and is removed from that home by the parents. In such instances, the grandparent is required to file for custody within 6 months after removing the child from home.
  • Grandparents and great-grandparents are also permitted to file for partial physical custody or supervised physical custody if:
  • The child's parent has died; or
  • The grandparent or great-grandparent has formed a relationship with the child with the consent of the child's parents or in accordance with a court order and the child's parents:
    • Have initiated a custody proceeding; and
    • Do not agree concerning whether the great-grandparent or the grandparent should have partial physical custody; or
  • The minor has resided with the grandparent for a minimum of 12 successive months and is removed from the home by the parents. In such instances, the grandparent is required to file for custody within 6 months after removing the child from the home.
  • Any person who can establish all of the following:
    • Willingness to take on parental responsibilities for the child if:
      • Such an individual has a sustained, significant, and sincere interest in the child's welfare; and
      • Neither divorcing parent has any form of control or care of the child

Note that the above provision is not applicable if a dependency case is pending, or the child has been adjudicated dependent.

Typically, a child is required to have resided in Pennsylvania for a minimum of 6 months before a state court can hear a custody case concerning the child. Nevertheless, Pennsylvania child custody laws make provisions for when the child is under 6 months or for specific emergencies such as when abuse or abandonment of the child or the child's sibling or parent exists.

Pennsylvania's child custody laws contain a gender-neutrality provision that seeks to remove all forms of biases towards both genders and guarantee that both divorcing parties have equal rights to custody of the child. When both divorcing parents are deemed competent caregivers, Pennsylvania courts have a presumption for joint custody.

Although custody awards are permanent until amended or until a child reaches the age of 18, it is uncommon for a custody order to endure the whole 18 years of a child. Often, parents' circumstances change, and a custody order is modified to reflect the changing needs of the divorced parents or the child. According to Section 5338 of the Pennsylvania child custody laws, any divorced parent may petition for a child custody order modification if it is in the child's best interests.

In a custody modification action, a judge will evaluate the same circumstances that were significant in the original action. Additionally, if the child is of appropriate age and maturity, a court may consider the child's choice and either parent's grounds for requesting a custody modification. For instance, a divorced parent cannot modify a custody order just because the child's other parent remarried. However, if a child receives a new medical diagnosis or one parent relocates out of the country, the custody order may be amended.

Types of Child Custody in Pennsylvania

Pennsylvania child custody laws divide child custody into two distinct categories: physical custody and legal custody. The family courts use specialized terminology to describe specific custody arrangements and court decisions within these two broad categories.

Legal Custody

Legal custody establishes which parent or divorcing party has the authority to make significant decisions on the child's behalf, including religion, health care, education, and travel. A legal custody order can be a shared custody order or sole custody order. In shared custody, more than one party can legally make major decisions for the child. In sole custody, only one party is authorized to make major decisions for the child.

Physical Custody

Physical custody determines where the child resides, that is, the party that the child will live with, and hence which parent or divorcing party will be responsible for day-to-day choices for the child. Pennsylvania establishes five types of physical custody: shared, primary, partial, supervised, and sole.

  • Shared physical custody: In shared physical custody, more than one party is permitted to take physical custody of the child, and each of the parties is allowed significant time with the child
  • Primary physical custody: Here, the party granted primary physical custody spends the majority or more than half of the time with the child. The other party may get supervised or partial custody
  • Partial physical custody: When a party is granted partial physical custody, the party spends less than a majority or less than half of the time with the child.
  • Supervised physical custody: Supervised physical custody refers to the custodial time during which an adult or agency named by the court monitors the interaction between the child and a party
  • Sole physical custody: In sole physical custody, one party has physical custody of the child permanently

How to File for Child Custody in Pennsylvania

To file for child custody in Pennsylvania, follow these steps:

  • Decide how to file the petition: Several counties in Pennsylvania allow divorcing parties to file cases electronically. If e-filing is not available, visit your local courthouse to complete the process. Pennsylvania counties permitting e-filing include Lehigh County, Lancaster County, Montgomery County, Cumberland County, and Philadelphia County. Counties such as Lehigh require that petitions for custody cases be done electronically.
  • Complete the paperwork: Complete electronic forms if you file your petition electronically or obtain physical forms from the local county court or online. Typically, you will be required to complete the following forms:
    • Complaint for Custody Form
    • Confidential Information Form
    • Certificate of Compliance Form
    • Criminal Record and Abuse History Verification Form
    • Notice to Defend Form
    • Scheduling Order Form
    • Self-Represented Party Entry of Appearance form if you intend to represent yourself.

You may use the county-specific forms tool on the Pennsylvania Courts website to obtain further information on the specific forms required for a child custody petition in your county. Each form must be printed and taken to the appropriate office in your county courthouse.

  • Pay the required filing fee: Pennsylvania courts' child custody filing fees vary and may run into hundreds of dollars. For example, in Chester County, the filing fee for a child custody petition is $212.25. In Philadelphia County, it costs $107.13 to file for custody. Persons filing for emergency custody in Philadelphia County will be required to pay an additional $42.68. If you are unable to pay the petition filing fee, you may request to file a petition to proceed In Forma Pauperis (IFP) form. The IFP form is usually submitted in the Prothonotary or Office of Judicial Records
  • Serve a copy of the paperwork on the other divorcing party: A copy of all paperwork must be served on the other party. The service may not be completed by you or any other person related to you. After serving the paperwork, you must complete and file the Proof of Service form with the court. Use the Affidavit of Service of Original Process by Mail form if you intend to serve copies of your paperwork by mail. Use the Acceptance of Service form if you plan to hand-deliver the paperwork through a sheriff or a server not related to you

After filing your petition, both divorcing parties will get a notice by mail with a hearing date.

How to Get Full Custody of a Child in Pennsylvania Without Going to Court

You can obtain full custody of your child without going to court if you and the other divorcing party can agree that you should be awarded full custody of the child. Note that this agreement will still be required to be approved and signed by the court. In doing so, you must convince the court that obtaining full custody is in the child's best interest.

Also, in child custody cases in Pennsylvania, the parties are often required to attend mediation sessions before obtaining a hearing in front of a common pleas judge. Mediation involves a professional who encourages both divorcing parties to come to an amicable solution on child custody matters. Mediation depends on both parties reaching an agreement via mediated discourse rather than on a judge or other court official rendering a judgment. In mediation, a divorcing party can get full custody without going to court.

How Long Does a Child Custody Case Take in Pennsylvania?

Pennsylvania custody proceedings are intended to be swift. Typically, you will have your first in-person encounter with the court within 45 days of filing a complaint or petition. Usually, the court will schedule a trial before a judge within 180 days after filing. A party must submit a motion or request for trial in a county where the date is not set automatically. The trial before a judge will conclude within 90 days of entering the schedule and will take place on consecutive days if practicable. If scheduling on consecutive days is not practicable, the hearing will take fewer than 45 days to complete. Within 15 days following the end of the trial, the judge's ruling will be filed. Note that despite this timeline, a divorcing party can request emergency or temporary special relief, such as when the child is at imminent risk of harm. Emergency child custody case hearings may be decided in a few hours or days.

Child Custody Evaluations (Or Assessment) in Pennsylvania

A custody evaluation is a psychological assessment undertaken by a psychologist to study the divorcing parties' living conditions, family dynamics, any mental health problems, and other pertinent concerns in order to make recommendations in the child's best interests in an ongoing custody dispute. Custody evaluations in child custody matters are established in Pennsylvania under Pa.R.C.P. 1915.8.

Parties to a custody dispute may choose to engage in a custody assessment, or the court may order the parties to participate in an evaluation. If an agreement cannot be reached between the divorcing parties on paying the evaluation cost, the court may determine how the assessment costs will be shared. The court may establish deadlines and ask the parties to sign permission or consent forms pursuant to the review.

A custody evaluator will often interview the child, the divorcing parties, and other persons residing in the homes of both divorcing parents. While the custody evaluator will consider the inputs of the divorcing parties, the ultimate purpose of the custody assessment is to determine what is in the child's best interest. The custody evaluator will consider the same factors that the court would when determining the best custody arrangement for the child, including but not limited to stability of both divorcing parties, the child's relationship with both divorcing parties, a party's drug or alcohol abuse, and which party is more likely to encourage the child to have a relationship with the other divorcing party.

Custody evaluations are sometimes extensive, lasting months, if not more than a year, and costing several thousand dollars. Custody evaluations are often used in more contentious cases. However, the court often offers other means of resolving a custody dispute before ordering a custody assessment.

To maintain impartiality, the expert conducting the custody review may not be related to either divorcing party. Also, typically, each divorcing party pays half of the cost of the custody review, thereby eliminating the impression that the evaluator may be biased towards a divorcing party who pays the full cost.

Following the evaluator's assessment of the family's situation, the findings will be compiled into a confidential report that will include a formal custody recommendation. Nobody other than a party to the case may have access to the report. If either divorcing party objects to the report, the evaluator may be cross-examined at the trial.

Choosing a Child Custody Lawyer in Pennsylvania

When a couple decides to divorce, child custody is often the most critical, emotional, and acrimonious part of the divorce. A divorced party will likely need the assistance of a lawyer before a child custody order can be obtained. Choosing a child custody attorney in Pennsylvania may be a daunting task. The right attorney can make a significant difference in the outcome of your divorce and your ability to navigate the emotional process. An individual looking to hire a child custody attorney in Pennsylvania may consider the following factors in making a decision:

  • Knowledge of Jurisdiction Laws: Pennsylvania has unique regulations and laws concerning child custody. It is recommended that the lawyer you hire is knowledgeable in Pennsylvania's child custody laws. If the child custody matter has an interstate aspect, verify that the lawyer is familiar with both jurisdictions
  • Local Lawyer: Choosing an attorney located in your locality ensures that the individual has the necessary understanding of Pennsylvania custody law and that the attorney will be accessible. In a custody case, it is advised that you are able to communicate with your custody attorney face to face. If you have a meeting scheduled, you should be able to do so without traveling a great distance. Additionally, a local attorney is much simpler to vet, and you are far more likely to benefit from a referral from a friend or family member who lives in your neighborhood. Attorneys who have worked in a particular location for an extended period will also have developed relationships with courthouse employees and specific judges, which is always advantageous
  • Communication Skills: You should be able to speak readily and honestly with your lawyer. Whether you prefer email, phone conversations, or in-person meetings, the lawyer must be flexible. Also, the custody lawyer must be able to communicate effectively with other parties. These parties include your spouse, judges, and the opposing attorney, among others. The attorney must be able to speak with professionals who are not involved in family law, such as accountants
  • Financial Consideration: Hiring a child custody attorney is not cheap. Attorney costs vary according to various circumstances, including the lawyer's popularity, the firm's size, and success rates. Inquire about the lawyer's billing rates and the fees you will be asked to pay. Compare the billing rates proposed by all prospects to see which one works best for your financial situation. There are occasions where you may be eligible for pro bono counsel by a court-appointed judge, but this will mean that you will not have the opportunity to choose your own attorney
  • Referees and Review: Although a child custody lawyer may seem to be competent on paper, actual client experience may differ. You may get references directly from the attorney or do an internet search to see any reviews. You should confirm that the attorney you choose has no disciplinary history and that most of the attorney's former clients were happy with the service rendered. You may contact the state bar to see if the attorney is in good standing and whether the attorney's license is legitimate
  • Set Up a Meeting: You should meet in person before deciding on a child custody lawyer. It is not enough to speak with them over the phone. By meeting an attorney in person, you can get a sense of how the lawyer works and see if the attorney's workspace is professional. Before you go to this meeting, prepare a list of questions relevant to your case and the attorney's background
  • Decide: Compare your notes from each session held with the prospects and choose one that meets your requirements and budget. Be aware that a child custody dispute may have serious legal consequences for both you and your child. Hence, you should choose an experienced attorney with whom you feel at ease

Do I Have the Right to Know Where My Child is During Visitation?

Whether you have the right to know your child's whereabouts during visitation depends on the terms of the visitation agreement approved or issued in court. When a couple decides to divorce in Pennsylvania, they must come to a visitation agreement in the child's best interest. Initially, it will be up to both divorcing parties to reach a visitation agreement that will subsequently be approved in court. Otherwise, a court will issue a custody and visitation order that is determined to be in the child's best interest.

If both divorcing parties are able to come to an agreement that either party may inquire about the child's whereabouts during visitations, then the court is likely not to object to that arrangement. If the visitation arrangement ordered by the court does not state that you may know where your child is during visitation, then the other party is not obliged to inform you. However, you may petition the court to modify the current visitation order to allow you to obtain information about your child's location during visitations.