Pennsylvania Custody and Visitation Guidelines
Child custody laws in Pennsylvania are designed to assure the welfare of the child. While many of the custody laws are similar for married and unmarried couples, there is one big difference. When a couple is married, the father and mother have equal presumed custodial rights. In the case of an unwed couple, the mother of the child has presumed custody rights, while the father has to prove paternity before gaining those rights
It is usually best if the parties can agree between themselves as to who should have legal custody and who should have physical custody. Once they reach an agreement, they can ask the Court to make the agreement into an Order of Court. If the parties cannot reach an agreement, one party may file a Complaint for Custody or Partial Custody.
Types of Custody
Physical Custody in PA can take a variety of forms, including:
Shared – More than one party is allowed to take physical custody of the child, and each of them has significant periods of time with the child.
Primary – A party spends the majority (more than half) of the time with the child. The other party may get partial or supervised custody.
Partial – A party spends less than a majority of time with the child.
Supervised – Custodial time during which an agency or adult named by the court monitors interaction between a party and the child.
Sole – One party has physical custody all of the time.
In PA there are two types of legal custody:
Shared – More than one party has the right to make major decisions for the child.
Sole – One party makes all major decisions for the child.
Pennsylvania would prefer that couples come to a custody agreement on their own, amicably, and so it allows unmarried couples to file a stipulation and consent order. The stipulation is a legal declaration of the agreed custody terms, and the consent order comes from the judge and gives the stipulation legal power.
Court’s Consideration Required
The PA courts do not initially assume either co-parent to be better fit to be awarded custody over the other. A judge or master, after holding a hearing, decides custody based on the best interest of the child. The court is required to consider all relevant factors and must give more consideration to factors which affect the safety of the child, including:
- Which party is more likely to encourage and permit frequent and continuing contact between the child and the other party.
- Abuse, past and present, by a party or member of a party’s household.
- What each party does to parent 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 relationships with sisters and brothers.
- The preference of the child. The court must determine if the child carefully thought about his/her preference. The court must also assess the child’s maturity and judgment.
- 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 more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
- How close the parties’ homes are to one another.
- Each party’s availability to care for the child or ability to arrange appropriate child-care.
- The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.
- 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 member of a party’s household.
- Any other relevant factor.
In Pennsylvania, neither parent is given preference based on gender. Further, PA courts do not consider any custody or visitation conditions to be final.
Parental Rights in Pennsylvania
When a couple is married, the father and mother have equal presumed custodial rights.
If you were never married, and there is no custody order in place, the following persons petition the court for a custody order:
- Both natural parents as long as their rights have not been terminated through an adoption proceeding
- Someone who has legally adopted the children.
- A grandparent if the child has been cared for by the grandparent for at least 12 months or if the child is substantially at risk
- Anyone who has cared for the children for a substantial period of time.
When an unmarried couple has a child, custody is automatically given to the mother. If the father wants to assert his rights to the child, he must legally prove his paternity; otherwise, sole custody remains with the mother. If the mother is deemed a good parent, an unwed father will typically not win custody, but he can take legal action to ensure custody and/or visitation rights.
In a disputed custody case, the father may petition the court for custody of the child. In doing so, he must demonstrate to the court that it is in the best interest of the child to place the child in the father’s custody.
Further, in PA, the father retains certain legal rights to the child. After being declared as the father of the child, the father gains all of the rights of a married father and automatically gains other parenting rights. He may be involved in medical decisions, schooling issues and other routine parenthood concerns. Ultimately, the father is entitled to be part of the decision-making issues regarding the child.
In order for the unwed father to exercise his rights regarding the child, it is necessary that he be established as the child’s father. It is also necessary for an unmarried father to meet his jurisdiction’s definition of a father. There are several ways to establish paternity.
Acknowledgment of Paternity
The simplest way for a Pennsylvania resident to establish paternity is to complete and sign, along with the mother, an Acknowledgment of Paternity (AOP) form. In addition to completing this paperwork, parents may also establish paternity by seeking an order from a Pennsylvania court or Domestic Relations Section (DRS).
If the father won’t admit paternity, the unwed mother can file a petition naming the father at the county’s Domestic Relations Office. The courts can also order a genetic test to prove paternity. If the father wants to prove paternity, he can produce written acknowledgment of paternity to the court, openly acknowledge the child as his, marry the mother and then claim paternity, or the court can determine (via testing) he is the father. Once paternity is established, the father will have to pay child support and can be granted custody or visitation rights.
Once an unmarried father has been designated as the legal father of the child, he has the right to child visitation. Generally, this issue emerges in instances in which the father does not have custody of the child and seeks to spend time with the child on a less than full-time basis. In order to exercise the right to visitation, the unmarried father can work out the details with the mother of the child, or he can petition the local family court to award visitation.
If traditional methods fail due to a lack of cooperation or consent on the mother’s part, unmarried fathers in Pennsylvania may file a suit for filiation, which would grant the father custody and visitation rights to be determined by the court through mediation. In these cases, the court may order testing to confirm that the child did indeed come from the father.
Expedited Custody Cases
The new PA custody law provides help when you believe the other party is facing a criminal charge. In this case, you may file an Expedited Petition. The court must schedule your hearing as soon as possible.
Modification of Child Custody
Either party can file a petition to modify or change the court order, even so-called “final orders.” The test is always the best interest of the child. Once a court order is entered, the parties can agree to change the court order without going back into court. However, once a court order is entered, one party cannot decide to decrease the other party’s rights with regard to the child. The primary caretaker is not permitted to move far away without first obtaining the consent of the other party or the consent of the court. If a court order is disobeyed by one party, the other party has the right to file a “Petition for Contempt”.
Registration and Enforcement of Out of State Court Orders
If another state issues a custody order and you want that order to have affect in Pennsylvania, you must register that order in the appropriate court in PA.
A child custody determination issued by a court of another state may be registered in Pennsylvania, with or without a simultaneous request for enforcement, by sending a letter requesting registration and a copy of the determination sought to be registered. The PA Court requires the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered. PA will then file the order as a foreign judgment and provide the other party an opportunity to contest the registration. If they fail to contest, then the order will be confirmed as a matter of law.
The foregoing information is provided as general family law guidelines in Pennsylvania and should not be considered as legal advice specific to your case. After reviewing the above material, you will be presented with the opportunity to submit more details specific to your case directly to About The Children.
Submitted by Linda O’Marie, Paralegal
- Pennsylvania Grandparent Visitation and Custody Rights Guidelines (aboutthechildrenblog.com)
- Child Custody and Same Sex Marriage (aboutthechildrenblog.com)