Child Custody

What are the types of child custody?

There are two types:

Legal custody: major decisions made on behalf of the children, including but not limited to educational, medical and religious where applicable. Legal custody can be placed in one or both parents or other custodians.  Courts generally prefer that it is shared where possible.  It requires parents to communicate in advance with each other about major decisions and reasonably try to reach an agreement on these decisions.

Physical custody: where the children live day-to-day. These are the types:

  1. Joint custody: equal sharing of custody, such as week on, week off, 3 days one week and 4 the next, or 2 days one week and 5 the next. Courts generally prefer that parents share physical custody where possible, and courts do not automatically favor either parent.
  2. Primary custody: children living the majority of time with a parent or other custodian.
  3. Partial custody: children staying less than half the time with a parent or other custodian, without supervision of that custodial time.
  4. Supervised visitation: parent or other custodian visiting with the children, under supervision of another person or an agency, due to an extraordinary need for supervision.

How does a judge decide on child custody?

If an agreement cannot be reached, the Judge (or a Master appointed by the court) will hear evidence and decide what is in the children’s best interest, considering 16 factors based upon whether and how much they apply:

  1. Who performs the parental duties?
  2. Who provides stability in the children’s schooling, family and community?
  3. Who takes care of the children’s emotional needs, for a loving, stable, nurturing environment?
  4. Who takes care of the children’s daily needs, including special needs?
  5. Is there a history of drug or alcohol abuse by a parent or custodian or anyone in their houses?
  6. What is the mental and physical condition of the parent or custodian or those in their houses?
  7. Who will encourage or permit frequent contact between the child and other parent/custodian?
  8. Has there been abuse by a parent/custodian or anyone in their house; and who can better protect the children?
  9. Is there extended family available?
  10. How will custody affect sibling relationships, including half-siblings and step-siblings?
  11. What are the children’s “well-reasoned preferences”?
  12. Has either parent or custodian tried to turn the children against the other (except where needed due to domestic violence)?
  13. How far apart do the parents or custodians live?
  14. Are the parents or custodians able to care for the children or provide child care for them?
  15. Are the parents or custodians able to co-parent without conflict (except in cases of violence)?
  16. Are there any other relevant factors to consider?

Can my children decide where to live?

No, and there is no age when they can decide where to live.  The children’s “well-reasoned preference,” based upon their “maturity and judgment,” is one of 16 factors that the courts will consider in deciding what is in the children’s best interest.  Courts will also consider how much weight to give children’s preferences based upon the case’s facts, and it will also consider whether a parent or custodian attempted to influence the children’s preferences in favor of that parent or custodian and against the other parent or custodian.  Court activity should be discussed with the children as little as possible, and neither parent or custodian should say anything negative about the other in the children’s presence.

Can I move and take my children with me?

“Relocation,” or moving, with the children is only permitted with the consent of the other parent or custodian or with a court order.  Those who move without permission or court order can be ordered by the court to return with the children.  Generally, moves that require permission or court order are those that significantly change the distance between the parents or custodians, or those that change the children’s schools.  Section 5337 of the child custody statute specifically addresses relocation.

Do grandparents have child custody rights?

Grandparents can seek custody where they obtained custody by consent or court order; they are willing to assume parental responsibilities; and the children are:

  • Court ordered as dependent on Children and Youth Services.
  • Substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapability.
  • The children lived with the grandparents for at least 12 straight months, except brief interruptions; the parents removed the children; and the grandparents file an action within six months.

Grandparents can seek partial custody or visitation where:

  • Their child, the parent of the children, is deceased.
  • The parents of the children have been separated at least six months or have filed for divorce.
  • The children lived with the grandparents for at least 12 straight months, except brief interruptions; the parents removed the children; and the grandparents file an action within six months.

What can I do if the other parent violates a child custody order?

The police generally will not enforce child custody orders, since they are civil and not criminal orders, unless a parent or custodian has committed a crime under the kidnapping-related laws.  Violations of the terms of a child custody order usually require a petition for civil contempt brought before the Family Court Judge, who will set a hearing to determine whether a parent or custodian willfully violated the order.  If so, the Judge can change the terms of the custody order and sanction that parent or custodian, including fines and court fees.

How can legal aid help?

Due to limited resources, legal aid cannot handle every child custody matter.  Those it deems an emergency will be accepted, along with those involving abuse or if a custody schedule is needed after a Juvenile Court case ends.  Legal aid will attempt to negotiate and reach a child custody consent order, and in other cases, can offer advice on child custody.  In Washington County only, legal aid handles the Child Custody Limited Representation program, including negotiations before the Conference Officer/Master for those who financially qualify, live in the county and have not had a child custody order within the last year.

What is my county court process?

Emergency motions for temporary orders or for contempt must be brought before the assigned Family Court Judge in each county.  Filing fees will be required in each county, unless the court grants a waiver.  The court generally grants a waiver to those financially eligible for legal aid.  Each county has rules for submission of forms and/or participation in child custody education.

Fayette County: Custody complaints are filed with the Prothonotary at the courthouse, with a copy to the Court Administrator for assignment of child custody mediation in the courthouse.  If no agreement is reached, the mediator may refer the case to the Family Court Judge for a hearing.
For local rules, go to www.co.fayette.pa.us.

Greene County: Custody complaints are filed with the Prothonotary at the courthouse, which will obtain a conciliation court date, from the Court Administrator, with a Child Custody Hearing Officer.  If no agreement is reached, a hearing will be scheduled.  If neither side requests a trial or argument before the Judge, that order will become final.
For local rules, go to www.co.greene.pa.us.

Somerset County: Custody complaints are filed with the Prothonotary with a request to schedule a conference or hearing.
For local rules, go to www.co.somerset.pa.us.

Washington County: Custody complaints are initiated at the child custody office in the basement of the courthouse and will be assigned to a Child Custody Conference Officer for a one hour settlement meeting.  If no agreement is reached, a half-day hearing will be scheduled, after which the Conference Officer will issue a recommended temporary order.  If neither side then requests a trial before the Judge, that order will become final.
For local rules, go to www.washingtoncourts.us.

                                                                                                                                                

The child custody law is found at 23 Pa.C.S. Chapter 53.

For more online information, go to www.palawhelp.org.