Types of Custody
Typically, custody is established when one or both parents petition the court for a custody order; divorcing parents often request one as part of their divorce. As with all states, Pennsylvania courts award both physical and legal custody. Physical custody is what most people think of when they hear the word "custody" because it refers to where the child lives. If the child stays with one parent most of the time, that parent has primary physical custody. In these cases, the other parent is typically given visitation, which is also known as partial physical custody. If a child splits his time between parents, the parents have shared physical custody. Legal custody, on the other hand, is a parent's authority to make important decisions for the child regarding medical procedures, religion and education. The court can grant legal custody to one or both parents.
Best Interests of the Child
Pennsylvania determines custody based on what is in the best interests of the child -- a national standard. The court will look at a variety of factors, including which parent is more likely to encourage and promote the other parent's relationship with the child; provide stability in the child's education, community and family life; meet the child's emotional needs; maintain a consistent loving and nurturing relationship with the child; and care for the child and attend to his daily needs. The child's preference, proximity of parents to one another and the child's extended family, the child's relationship with siblings, and the parents’ ability to work together are also considered. However, if the child's mother has any history of alcohol or substance abuse, domestic violence or mental or physical disability, these factors may convince a Pennsylvania judge to give you sole physical or legal custody.
To prove to the court that giving custody to your child's mother, or allowing her to keep it, is not in your child's best interests, you'll need to prove she's unfit. First, you'll need to advise the court of why you consider her unfit. This may be because she is or has been abusive towards your child, or someone else in her household has abused the child. Maybe she abuses alcohol or drugs, or she's sober but often relapses. Perhaps your child's mother has a mental or physical condition that makes her incapable of providing the care and supervision your child needs. If she has a criminal history or brings other people who have a criminal history around your child, this may also suggest unfitness, depending on the crimes at issue. For example, if your child's mother has been convicted of child neglect or is dating a registered sex offender, the court may determine the child is better off living with you. Second, you'll need to prove your allegations. This can often be done with such evidence as witness testimony, testimony of your child, hospital records, pictures, police reports, arrest and conviction records, school records and copies of restraining orders.
If you prove your child's mother is unfit, the court will likely award sole physical custody to you. If this happens, she may be entitled to visitation rights. However, if the court thinks it is not safe for the child to be around his mother, the judge may limit contact to supervised visits only at which another adult is also present. In severe cases, visitation may be withheld altogether. Whether or not your child's mother will receive or keep legal custody also depends on whether you two are capable of cooperating with one another. If so, the greater the chance of the judge allowing the mother to share legal custody with you, even if she doesn't have physical custody.
- BananaStock/BananaStock/Getty Images