General Custody Information
- Custody
Unless the court has issued an Order for custody to the contrary, each parent has an equal right to have the child live with her/him and to make decisions about the child. A parent does not have legal custody of a child just because the child is living with her/him. Legal custody requires a custody order from a court giving the person the right to make decisions about the child. A custody order spells out specific rights and responsibilities about physical custody, visitation, and decision making for the child. There are various types of custody, including: legal custody, physical custody, partial custody, and visitation. These terms are defined later in the website. It is essential that any custody agreement be entered as a court order.
At present the court prefer to issue Orders where the parents share legal and physical custody of the children. That does not mean that each parents has the children 50% of the time. It means that both parents share responsibility for the daily life of the child and the child spends as much time as is reasonable with each parent. If the circumstances of a family show that one parent should not be involved with the children, the court can issue an Order requiring supervised contact with the child or no contact with the child. Circumstances must be truly extraordinary before a court will allow no contact between a parent and a child.
Unless the parents agree to a plan for the parenting of the children, which includes who has legal custody and a schedule of physical custody, the court will award custody to either the mother or father or both of them after considering what is in the best interest of the child. Courts do not care about how angry or bitter the parents are at each other. Courts do not care who starts the custody action. The Court determines the custody award based on what is in the best interest of the child.
The Custody Order may be changed from time to time as the circumstances of the children or the parents change. Either party may file a Petition for Modification in order to have the court change the Order.
The Court will enforce or change an Order when one of the parents is not complying with the terms of the Order. Either party may file a Petition for Contempt in order to have the court force compliance with a court order of custody.
The terms of a court order of custody end as each child turns 18 years of age.
There is very little relationship between paying child support and having custody, partial custody or visitation of the child. A parent who cannot pay support may be allowed to see the child. A parent who is not permitted contact with the child may be ordered to pay support. A parent who refuses to pay support can be assumed to not have an interest in the child and custody decisions may be made on that basis.
- Custody Terms
- Custody:
- the right to keep, control, guard, care for, and preserve a child and includes the terms legal custody, physical custody, and shared custody.
- Legal Custody:
- the legal right to make major decisions affecting the best interests of a minor child, including but not limited to medical, religious, and educational decisions.
- Partial Custody:
- the right to take possession of a child away from the custodial person for a certain period of time.
- Physical Custody:
- actual physical possession and control of a child.
- Shared Custody:
- shared legal or shared physical custody or both of a child in such a way as to assure the child of frequent and continuing contact, including physical access, to both parents.
- Visitation:
- the right to visit a child, but does not include the right to remove the child from the custodial parent's control.
The definitions of the terms legal custody, physical custody, and shared custody are taken from 23 Pa. C.S.A. sec. 5302.
- The Custody Procedure
The process to have a court determine the custody of a child is begun by filing a Complaint for Custody or by including a request for custody in a divorce complaint. The procedure for making a decision about custody is slightly different in each county. Every county does require the parties to a custody action to attend a program that educates the parents about the effect divorce, separation or parents not living together has on the children.
The parents may come to an agreement about the custody arrangement at any time during the custody determination process and, if the court approves of the arrangement, the court will issue an Order based on that agreement. If the parties fail to come to an agreement, the court will hold a trial to determine the legal custody, primary physical custody, partial custody and visitation of the parties. Settlement is usually preferable to having a trial because of the expense, the time involved, the trauma to the parties and the children, and the loss of self-determination of the parents.