If you can’t agree on child custody or visitation issues with your former spouse or partner, you can apply to court for a custody order. A custody order covers allocation of custody time and the visitation rights of the noncustodial parent. Pennsylvania's child custody laws are gender-neutral, meaning the court is prohibited from showing bias toward either party on the basis of gender.
How to File for Child Custody in PA
You should file for custody in the county in which your child lives. Contact the clerk’s office in your county courthouse and ask what PA child custody forms you need to complete and whether there are any particular procedures you have to follow. For example, if you file for custody at Philadelphia Family Court, you have to complete a Complaint for Custody, together with a Domestic Relations Information Sheet.
On the Complaint for Custody form, provide your personal information, information about the other parent, and detailed information about your children and the type of custody you are seeking, together with the reason you are filing the complaint. Note that custody and child support are separate legal issues.
If the other party disobeys an existing custody order, you can file a petition for contempt. A party may be in contempt of a custody order if he prevents visitation, interferes with communication between the child and the other parent, or denies visitation on the basis of nonpayment of child support. For example, a parent who knowingly arranges extracurricular activities for a child that makes the child unable to attend the other parent's court-ordered visitation time has disobeyed the custody order. The court will schedule a hearing to decide if the other party is in contempt of the court's order and whether to issue sanctions, such as a fine or imprisonment, or to temporarily change the terms of the order until a full hearing is held on a petition to modify.
You may also file a petition to modify an existing custody order if you believe it is in the child's best interests; if you are afraid that the other party may take the child out of the area without your permission and not come back; if you wish to change the dates and times specified for custody in the court order; or if you want to move away and doing so would affect the other party's rights to custody. However, if you and the other party have reached a mutual agreement that you are both happy with and that is working well for all parties, you do not have to file a petition to mutually modify the existing court order.
The cost to file an action for custody in PA varies by court. As of July 2018, the fee for filing a custody complaint in Philadelphia Family Court is $107.13. If you cannot pay the filing fee, you can file a Petition to Proceed In Forma Pauperis, or IFP, to be excused from payment. Make sure you present proof of public assistance or SSI benefits when you file this form. The cost to file for modification of an existing custody order also varies by court. As of July 2018, the fee for filing a petition to modify a court order at Lancaster County Court is $93.50.
After the originals and two copies of the forms are filed, either by hand or by mail, the defendant is served with the papers and notified of a date to appear in court. The papers may be served by mail or by personal service by a sheriff or special process server. You then file proof of service, usually called an Affidavit of Service or Certificate of Service, with the court, stating the date and method of service on the defendant. Some courts require both parties named on a custody petition to attend a designated custody education seminar.
Child Custody Process
After you have filed and served your custody complaint, the first time you are required to appear in court is for a conference or hearing before a court-appointed master, a full-time employee of the First Judicial District of Pennsylvania who may or may not be an attorney. Parties are required to attend the master’s conference or hearing without the child present, although the child may be allowed to attend the conference under special circumstances, for example when the child is the only person who can provide necessary information.
The court may require each party to submit a parenting plan, including a detailed description of how the parties will be involved in making decisions about the child and a schedule of when the child will live with each party. The purpose of this document is to help the court reach a decision about custody.
At the master's conference, the parties may be able to reach an agreement on visitation and custody, or the master may request an interim custody order. In most cases an interim order grants no more than partial custody, because the aim is to ensure that the parent has guaranteed time with the child, not to bypass the standard court process. Another option is that the case is simply scheduled for a hearing before a judge.
The type of hearing you get depends on various factors, including how many witnesses each party has, whether there are expert witnesses and whether one or both parties are represented by an attorney. If your case is relatively straightforward, it is listed as a hearing before a judge. A case is generally deemed to be straightforward if no witnesses other than the parties are to be heard, and both parties do not have a attorneys. The average length of this type of hearing is 15 to 20 minutes.
A more complex case with attorneys representing each party may be listed as a trial and allocated a longer time slot in court for the judge to consider documentation and hear evidence from witnesses. A semi-protracted or protracted listing is reserved for cases expected to take a half day or more.
If you can prove that something has recently happened or will happen in the immediate future to place a child in physical danger, you may be able to get an emergency hearing. You need to ask the clerk's office for an emergency custody complaint or petition to ask a judge to hear your case right away or schedule a hearing with 14 days of the date of filing. The court does not need an allegation or proof of bodily harm, and the alleged physical danger does not have to be deemed life-threatening to grant an emergency custody hearing. However, you can only file an emergency custody complaint if you have previously filed a complaint for custody, petition to modify or petition for contempt.
Types of Custody in Pennsylvania
The Pennsylvania courts make several types of custody orders: shared physical custody, primary physical custody, partial physical custody, sole physical custody, supervised physical custody, shared legal custody and sole legal custody.
The term visitation is not used in Pennsylvania custody laws, but where visitation is otherwise used, it may be construed to mean partial physical custody – the right to assume physical custody of the child for less than a majority of the time; shared physical custody – where more than one individual has significant periods of physical custody of the child; or supervised physical custody – time with the child where an adult individual or agency, such as a family member, friend or neutral third party, monitors the parent’s interaction with the child. Visitation is rarely denied completely because it is against public policy in Pennsylvania to destroy a relationship between parent and child.
Legal custody of a child is the right to make major decisions on the child's behalf, including decisions about medical care, religion and education. If you have sole legal custody of a child, you have the sole right to make these decisions. If you have shared legal custody, you share those decisions with another person.
If you have primary physical custody of a child, you have the right to physical custody of the child for the majority of time. If you have sole physical custody, you have the right to exclusive physical custody of the child. Where the court finds both parents to be competent caregivers, it favors a shared custody order.
Best Interests of the Child
When making a decision about child custody, the primary concern of Pennsylvania courts is what is in the best interests of the child. Various factors are taken into account, including the child’s relationships with both parents and other family members, the mental and physical health of both parents, the child’s express wishes and the proximity of the parents’ residences. The court also considers any attempts by a parent to turn the child against the other parent, aside from cases of domestic violence where safety measures are required to keep the child safe; which parent is more likely to maintain a loving, stable, consistent, nurturing relationship with the child; and which parent is more likely to meet the daily physical, emotional, developmental, educational and special needs of the child.
Can Grandparents File for Custody?
In Pennsylvania, grandparents do not have the automatic right to file a petition for physical and legal custody of a grandchild based on familial relationship alone. However, the court may award physical and legal custody to a grandparent if it is in the child's best interests to do so, and it is not in the child's best interests to be in the custody of either parent.
A grandparent can file for custody only if he is in loco parentis to the child, which means he is acting as a parent to the child with the consent of the child's parent, or the grandparent can prove that her relationship with the child began either with the parent’s consent or by court order, and the grandparent assumes or is willing to assume responsibility for the child. Additionally, the child must be determined to be a dependent child or be substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity, or have lived with the grandparent for a period of at least 12 consecutive months. Brief temporary absences of the child from the grandparent’s home are allowed. If the child is living with the grandparent and is removed by her parent, the grandparent must file for custody within six months of the child's removal.
A grandparent can file for partial physical custody if the child’s parent is deceased, when the parents of the child have been separated for a period of at least six months or have commenced and continued divorce proceedings, or when the child has lived with the grandparent for a period of at least 12 consecutive months of the child’s removal from the home. A grandparent who wants to file for custody in Pennsylvania must follow the same procedure as a parent, beginning with filing a Complaint for Custody.