In Pennsylvania, having sole custody may indicate that you alone have the right to make important decisions regarding your daughter's upbringing or that your daughter lives primarily with you and possibly visits with your spouse. The former is sole legal custody, while the latter is sole physical custody. The court might award you both sole legal and physical custody if your spouse is unfit. Gaining custody rights begins with your divorce complaint.
Complete a complaint for divorce and cite your grounds. If you're fighting over custody, you may not be able to qualify for Pennsylvania's simplest no-fault option, which involves your spouse signing an affidavit of consent to the divorce. You can still qualify for a no-fault divorce on grounds of irretrievable breakdown if you've been separated for two years. You can file before the two years elapses, but the court won't finalize your divorce until this time period has passed. Otherwise, you must file on fault grounds, and this is a complicated and rare process in Pennsylvania. You must prove your spouse's fault to the court first, in a separate hearing, before the judge will rule on custody and other issues.
Read More: The Proper Steps in a Custody Battle
Fill out any additional paperwork required by your county. This typically includes a notice to plead, which tells your spouse and the court what issues you want the judge to decide. Check the box for "custody and visitation."
Serve your spouse with a copy of your complaint and the corresponding paperwork. In Pennsylvania, your spouse can sign an acceptance of service, voluntarily taking the papers from you, but if you're fighting over custody, he may not be willing to do this. Your other choices are to mail him a copy by certified mail, but he must sign the receipt; or you can ask a friend or a private process server to hand-deliver the documents. You have 30 days after filing to achieve service or you must start your divorce all over.
Attend a parenting seminar if your county requires it, and then go to mediation. At mediation, a trained third party will attempt to help you and your spouse reach an agreement regarding custody. If your spouse consents to giving you sole custody, you can submit a written agreement to the court. If domestic violence is an issue in your marriage, Pennsylvania law allows you to skip mediation, but you must notify the court of the problem.
Meet with a conciliator. The court will schedule this conference if you fail to reach an agreement with your spouse at mediation. You can use this opportunity to explain the reasons you think your spouse should not share custody with you, or why he shouldn't have sole custody of your daughter. The conciliator will make a custody recommendation based on the facts you present. If he decides you should have sole custody, this will become a court order and part of your divorce decree. If he feels you should not have sole custody – or if your spouse wants to fight his recommendation for sole custody – either of you can request a trial in front of a judge, so the recommendation isn't binding.
Present your case at trial. The judge will decide custody based on what he feels is in your daughter's best interests. Pennsylvania's statutory best interests factors include any history of domestic violence in your family, drug or alcohol abuse by either parent and each parent's mental and physical health. You can present evidence to the court showing why you think your spouse does not meet these criteria.
If you feel strongly that your spouse should have a limited role in your daughter's life, consider hiring an attorney to help you. Divorce and custody are complicated legal processes, particularly in Pennsylvania, and many opportunities exist for mistakes when you represent yourself.
- Neighborhood Legal Services Association: Custody Law in Pennsylvania
- Pennsylvania Law Monitor: Child Custody in Pennsylvania – "Best Interests" Enumerated Under New Law
- The Philadelphia Courts: Divorce in Philadelphia County (PDF)
- Jenkins Law Library: Philadelphia Self-Help No-Fault Divorce Manual (PDF)
- Linda's Law Blog: Understanding the Steps in a Pennsylvania Divorce Action
- Martin Law Firm: What to Do If Your Spouse Contests Your Divorce
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