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.
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.
There are several ways to establish paternity. The unwed mother and father can sign a "Voluntary Acknowledgment of Paternity" form given by the hospital or birthing center, the County Assistance Center, or the Domestic Relations Office of the county court. 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.
If the unmarried parents can't agree on custody arrangements, the matter goes before a family court judge. In deciding custody arrangements, the Pennsylvania courts place strong emphasis on the child's well-being. A major factor is the relationship the parent has with the child. In Pennsylvania, neither parent is given preference based on gender (Statute § 5301). Pennsylvania courts do not consider any custody or visitation conditions to be final.
Types of Custody
Custody can take a variety of forms. A parent granted physical custody has the child living with him or her some or all of the time. Legal custody gives the parent(s) the right to make major decisions regarding the child's education, religion or medical situation. One parent can get sole custody, or the parents -- if the father has proved paternity -- can share custody (Statue § 5302). Partial custody gives the non-custodial parent the right to have the child live with him/her for a specific amount of time. Visitation rights let the non-custodial parent visit the child, but he or she is not allowed to remove the child from the custodial parent's care.
In Pennsylvania, child support and custody are viewed as separate legal issues. To file for child support, a custody order -- the legal document that specifies the terms and conditions of who has child custody -- is not necessary.