Know the Laws: Pennsylvania
UPDATED December 17, 2008
Please consider getting help from an organization in your area before proceeding with court action regarding custody issues. You can visit PA Where to Find Help for local resources and legal assistance.
- Definitions
- Who can get custody or visitation?
- How the custody process works
- After a custody order is in place
Definitions
back to topWhat is custody?
There are two forms of custody:
Physical custody is the actual physical possession and control of a child (a person under 18 years old). It refers to the person with whom the child lives, either all of the time or part of the time.
Legal custody is the right to make major decisions about the child, which typically include educational, religious, and medical decisions.*
A parent can get sole custody** of a child or parents can get shared custody. Shared custody is supposed to give the child frequent and continuing contact with and physical access to both parents.* The judge can order shared custody if one or both parents asks for it or the parents agree to it or the judge decides that it is in the best interest of the child.***
A parent can also be granted partial custody, which is when a non-custodial parent has the right to have the child live with him/her for a certain period of time.*
When the judge issues a custody order, it will also address visitation in addition to legal and physical custody issues. Visitation is the right for the non-custodial parent to visit with the child.* For more information on partial custody and visitation, go to What's the difference between partial custody and visitation?
* 23 Pa.C.S.A. § 5302
** 23 Pa.C.S.A. § 5303(d)
*** 23 Pa.C.S.A. § 5304
back to topWhat's the difference between partial custody and visitation?
Someone with visitation has the right to visit the child, but not the right to remove the child from the custodial parent's control.*
For example, if the father has visitation of the children at the mother's house, he cannot take the children out of the house. He can only visit the children in the mother's house for a specified period of time, and he must leave when his time is up.
Supervised visitation is the chance to visit with the child while in the presence of a third party who watches the interaction between the parent and child and reports back to the judge.. Supervised visitation centers are not widely available. Where they do exist, visitation takes place at the facility, with staff on duty to observe and to help address safety concerns A relative or friend may also oversee supervised visitation. For example, a father might have supervised visitation of his child at his sister's house, with his sister there to watch.
Unlike visitation, someone with partial custody of a child has the right to take possession of a child, away from the custodial parent, for a certain period of time.* For example, a parent may be awarded partial physical custody of a child for a weekend.
* 23 Pa.C.S.A. § 5302
back to topWhat are the advantages and disadvantages of getting a custody order?
There may be advantages to obtaining a custody order, including:
- Gaining access to your child if the other parent has control of the child;
- Having a fixed custody schedule (telling each parent when they can visit and/or take possession of the child) enforceable by the judge;
- The right to make legal decisions about your child; and
- The right to have your child live with you.
Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day. But if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.
There are also many reasons people choose not to get a custody order from a court. Some people decide not to get a custody order because they don't want to get the courts involved. These people may have an informal agreement with the other parent that works well for them, or they may think that going to court will result in the other parent being awarded more custody or visitation rights than they are comfortable with.If you decide not to get a custody order, you and the other parent likely have an equal right to make decisions and decide on living arrangements. The exception to this is when paternity has not been established by an unmarried father. If you are unsure if paternity has been established, you can talk a custody lawyer – go to out PA Finding a Lawyer page.
A lawyer or domestic violence organization can help you evaluate whether getting a custody order is best under your particular circumstances.
Note: Pennsylvania considers child support and custody to be separate legal issues.* You do not have to have a custody order to file for child support. Additionally, filing for child support will not automatically establish custody.
* 23 Pa.C.S.A. § 7101
back to topShould I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you probably don't have much to lose by asking that the visits be supervised.
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the great majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the father on a few visits or the visits might be supervised by a relative for a few months -- and if there are no obvious problems, the visits will likely become unsupervised. Oftentimes, the father ends up with more frequent and/ or longer visits than he had before you went into court. He may even end up with joint custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out if that is best in your situation, please go to PA Finding a Lawyer to seek out legal advice.
back to topCan I file for custody in Pennsylvania?
You can file for custody in Pennsylvania if your child has lived in PA for the last six months in a row. (Temporarily leaving the state, such as going on vacation, does not change anything.)*
There are certain exceptions to this rule. You may be able to file in Pennsylvania even if your child has not lived in PA for the last six months if:
- Your child is less than six months old and has lived in PA since birth*;
- Your child is in PA and it is necessary in an emergency to protect the child because you, your child, or the child’s sibling are subjected to or threatened with abuse.**; or
- Your child lived in PA for at least six months but:
- Moved away from PA, although you must still be living there; and
If you already have a custody order from another state and you want to change it, you will likely have to file a petition to change (modify) that order in the state where it was originally issued.****
- S/he has not lived in any other state for 6 months in a row since leaving PA.***
If you've recently moved to or fled to PA, a domestic violence organization or legal services agency in your area might be able to help. For a list of resources, please see our PA Where to Find Help page. You can also write to us to Ask A Question for more information.
* 23 Pa.C.S.A. § 5402
** 23 Pa.C.S.A. § 5424(a)
*** 23 Pa.C.S.A § 5421(a)
**** 23 Pa.C.S.A. § 5423