What is custody?
There are two main forms of custody, physical and legal:
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. Sole physical custody is when one parent alone has physical custody (the other parent may get visitation) and shared physical custody is both parents share physical custody, with each parent having significant periods of time with the child. Custody can also be divided into primary (when one parent has the child for the majority of the time) and partial (when one parent has the child for less than a majority of the time). Physical custody can also be supervised, when an agency or another adult monitors the interaction between the parent and child.1
Legal custody is the right to make major decisions about the child, which typically include educational, religious, and medical decisions. Legal custody can be sole (given to one parent alone) or shared.1
1 23 Pa.C.S.A. § 5322(a)
What 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) that is 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, they 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 may likely have an equal right to make decisions and decide on living arrangements.
Should 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 may not 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.