What are the different types of custody?
When the Court makes a decision about custody, it must decide who should have legal custody and who should have physical custody. Legal custody is the right to make major decisions affecting the child, including medical, religious and educational decisions. There are two types of legal custody: sole and shared. Sole legal custody gives one party the right to make the major decisions concerning the child. When two people share legal custody, they must confer with one another before making major decisions concerning the child. If you do not have a custody Order of Court, the default in Pennsylvania is shared legal custody. Physical custody is the right to have the child in your care.
Pennsylvania recognizes five types of physical custody. Primary physical custody gives one party the right to care for the child the majority of the time. Shared physical custody gives two parties the right to have frequent contact with the child. Partial physical custody is the right to unsupervised visitation, and may be for a few hours every week or one day a week, every other week-end, etc. Occasionally, the Court may order supervised visitation. The Court usually orders supervised visitation only when the party is a danger to the child. Such visitation can be supervised by a relative, a friend, and sometimes, in very serious situations, may be supervised by a county agency, although there is often a cost associated with this. In addition, in rare circumstances, one party may be granted sole physical custody, which gives one party exclusive physical custody of the child, and grants the other party no physical custody.
Who can file for physical custody of a child?
- A natural parent of the child, so long as his/her rights have not been terminated through a legal proceeding.
- A person who has legally adopted the child.
- A grandparent of the child, but only in certain circumstances.
- Any person who is in loco parentis. This is a legal term that applies when a non-parent has cared for the child for a substantial period of time. There are two components a Court will consider to determine whether a person is in loco parentis: whether the person has assumed parental duties and whether the parent has discharged his/her parental duties to this person.
- If neither parent has any form of care or control of the child, any person who can show that they have assumed or are willing to assume responsibility for the child and that has a sustained, sincere interest in the child's welfare.
When can a grandparent file for custody?
A grandparent may file for any type of physical or legal custody when:
- His/her relationship began with either the consent of a parent or under a court order;
- He/she has assumed or is willing to assume the responsibility for the child; and
- One of the following conditions is met:
- the child has been determined to be "dependent" by the Court
- the child is substantially at risk due to parental abuse, neglect, drug alcohol abuse or incapacity; or
- the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.
In addition, a grandparent (or great-grandparent) may seek partial physical custody in the following circumstances:
- Where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;
- Where the relationship with the child began either with the consent of a parent of the child or under a court order and where the parents of the child;
- have commenced a proceeding for custody; and
- do not agree as to whether the grandparents or great-grandparents should have custody under this section; or
- When the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after the removal of the child from the home.
How do I obtain a custody order?
Parties may obtain a custody order either by agreement or by filing a Complaint for Custody. If all parties involved can reach an agreement regarding custody, you may compile all the terms of the agreement into a written document and ask the Court to make the agreement into an Order of Court. The benefit of having an agreement made into an Order of Court is that the terms of the agreement then become enforceable by law.
If the parties cannot reach an agreement, either party may file a Complaint for Custody.
How do I file for custody?
In Allegheny County:
Self-represented or pro se litigants (parties who access the court without an attorney), may utilize the services of the Client Services Center (CSC) for assistance with the family court process. The CSC is located on the first floor of the Family Law Center at 440 Ross Street, in downtown Pittsburgh, and is available from 8:00 a.m. until 2:00 p.m., Monday – Friday, on days when the court is open. The CSC offers options counseling, where a court-employed Domestic Relations Officer (DRO) will assist the litigant, as well as make any necessary referrals to the Legal Advice Clinic available on-site (see below for information about the Legal Advice Clinic). The DRO will provide a party with information about the court process, so the litigant can determine how best to move forward with their case. The DRO may not provide legal advice or instruct a party as to what he/she should do. Any self-represented or pro se litigant may utilize the services of the CSC, regardless of income. If you are unable to afford the fees associated with a filing, you may seek a fee waiver at the CSC.
The Legal Advice Clinic is staffed by volunteer attorneys from the Allegheny County Bar Association, as well as law students from the University of Pittsburgh School of Law and Duquesne University School of Law. The Legal Advice Clinic offers legal counseling and advice to parties who meet certain financial eligibility guidelines. If a litigant does not meet the financial eligibility criteria, they will need to obtain a private attorney or proceed on their own. Court employees are unable to provide legal advice.
Anyone seeking assistance through the Client Services Center and Legal Advice Clinic MUST be prepared to provide the following information:
- Proof of household income (pay stub, bank statement, benefits statement (including Department of Public Welfare benefits, unemployment benefits, workers' compensation benefits and social security benefits), tax returns, W-2 statements, or any other document showing income (if seeking a fee waiver or assistance from the Legal Advice Clinic)
- All pertinent court documents or court orders regarding their case,
- The address of the opposing party or parties, and
- Information regarding involvement, if any, with the Allegheny County Office of Children, Youth and Families (OCYF).
Once you have completed your custody paperwork, bring the original pleadings, your Client Information Sheet or Custody Supplement, and your Criminal Record/Abuse History Verification form to the window in the Custody Department on the first floor. This area of the court is sometimes referred to as “Generations.” The clerk at the window will complete a scheduling order for the mandatory education seminar and mediation session, assigning dates for you and the opposing party to attend. If you ever previously attended the education seminar, let the clerk know. You may not have to attend again. (The mediation can be waived if your relationship with the opposing party has involved domestic violence.) The clerk will return your original paperwork to you as well as the original scheduling order.
Take these documents to the Department of Court Records (DCR) on the first floor of the City-County Building to file the documents and pay your fees. These documents must be filed and fees paid within 3 days or your scheduled dates will be cancelled and the court will take no further action on your case. If you have obtained a fee waiver, you should take this signed document with you as well. The DCR clerk will file your original documents and time stamp your copies.
The clerk in the custody department will also give you a packet of documents to send to the opposing party and a Certificate of Service form. You must serve the other party personally with all of the following:
1. The time-stamped custody pleading
2. A copy of the Generations Scheduling Order
3. A Domestic Violence Waiver
4. A “Criminal Record/Abuse History” Verification
5. “Notice of Language Rights”
6. A copy of instructions provided by the court
You must file the Certificate of Service, stating the date, time, and manner that the other party was served with the paperwork, with DCR and provide a copy to the child custody department as soon as service is achieved. If you served the other party by certified mail, the green return signature card will be required to prove service.
It is important to attend all scheduled court dates, the education seminar, and any scheduled mediations or conciliations.
In Butler County:
To initiate a custody action in Butler County without an attorney, you may obtain a “Pro Se Complaint Regarding Custody” from the Prothonotary’s Office at the Butler County Courthouse. The Prothonotary’s Office can be found by entering the Government Center behind the Courthouse and going up to the third floor. After getting off the elevator, you proceed down the hallway and through a sky bridge to the Courthouse. This is the only way to enter the Courthouse. You walk through the common area and will see a marble staircase or an elevator. Go down one floor and there are several signs for the Prothonotary’s Office. Pro se paperwork packets are hanging on the wall to the right of the doorway. There is no charge to pick up this paperwork. While you are completing the paperwork, you should only use the initials of your children. The Court is concerned with keeping the identity of minors confidential. However, the confidential information form allows the Court to know the identity of the children referenced in your paperwork. You must complete the Confidential Information Form Packet prior to filing your custody complaint.
To file this Complaint, you must also file a Criminal Record/Abuse History Verification form. You must complete this honestly and under penalty of perjury regarding any criminal convictions, (including guilty pleas or no contest pleas) or pending charges of the enumerated crimes of you or any member of your household. If you have not been convicted, pled guilty, or pled no contest to an enumerated crime, leave the space blank. If you must disclose a conviction or plea, you check whether it applies to you or a household member, the date of the conviction, and the sentence. You must also disclose any involvement you or household members have had with Children and Youth Services, in Butler County, in Pennsylvania, or in any other state. You also have the opportunity to disclose any criminal history of the opposing party or their household members.
In Butler County, the cost to file this paperwork is $386., but you may qualify for in forma pauperis or “IFP” status. If you are granted IFP status, you do not have to pay Court filing costs on the premise that you cannot afford them. Your packet also contains a Petition to Proceed In Forma Pauperis. If you believe you cannot afford the filing cost, you should complete this form as well. At this time, you only provide basic financial information, and if the Court needs additional information from you regarding your financial status, they may request you present it at a hearing. If this is the case, you will be informed by an Order of Court directly you to do so.
Once you have completed this paperwork, you must make 3 copies of the blank Order of Court, your Pro Se Complaint Regarding Custody, and your Criminal Record/Abuse Verification History paperwork, and one copy of your Petition to Proceed In Forma Pauperis. You should bring all of this paperwork to the Prothonotary, along with one copy of your Confidential Information Form in the large, unsealed envelope.
In Beaver County:
If a party is not represented by an attorney, they can obtain Custody filing paperwork at the Law Library Ground Floor, Courthouse, Third Street, Beaver, PA 15009. That office has complete packets of information for filing Complaints, Modifications of Custody Orders and Custody Petitions.
The initial filing is the Custody Complaint. Custody Complaints are filed in Custody Motions Court, which is currently held on Tuesdays and Thursdays at 8:45am in Courtroom No. 4 of the Courthouse. All forms must be completely filled out. Upon presentation of the Custody Complaint, the Judge will sign an Order scheduling a Custody Conference, and this Conference should occur within 45 days of the presentation of the Complaint.
Once the judge signs your Scheduling Order, you must file it at the Office of the Prothonotary, First Floor, Courthouse, Beaver, PA, and a case number will be assigned to you. The fees for filing are $165.25; however, if your income is below the poverty guidelines, you can file a Petition to have the fees waived. This Petition is called a Petition to Proceed in Forma Pauperis.
You MUST have the opposing party served with the filed Complaint, Scheduling Order and other filed documents. You cannot personally serve the opposing party. You must use a third party or send the documents by registered mail, restricted delivery, signature required. Proof of Service must be filed at the Prothonotary’s Office, Courthouse, Beaver, PA.
You must appear at the Custody Conference, which is held before a custody conciliation officer at the Office of Juvenile Services, First Floor, Courthouse, Beaver, PA at the date and time listed in the Scheduling Order. This is a conference before the Conference Officer, not the judge.
Other than the Complaint, if you wish to present other Custody Petitions or Motions, you must provide prior notice three business days prior to filing to the opposing party (unless it is true emergency and you must then provide 24 hours’ notice).
It is required that all parties to a custody case register and attend Positive Transitions – a parenting seminar held at the Beaver County Courthouse. There is a $55.00 fee for this class at the Office of Juvenile Services at the Courthouse. If you are filing a Petition to Modify Custody, you must have proof of your attendance at the seminar before presentation of the Petition.
You can file for custody on your own in Lawrence County by completing the Lawrence County Custody Packet and filing the appropriate forms with the Prothonotary of Lawrence County. The Custody Packet can be found in the Lawrence County Law Library which is located on the third floor of the Lawrence County Government Center, 430 Court Street, New Castle, PA, 16101. The Prothonotary’s office is located on the main floor of the Lawrence County Government Center near the main entrance.
The Custody Packet is comprised of two parts. Each part of the Custody Packet has its own instruction sheet which gives very specific information on the forms which need to be completed and filing instructions. One part of the packet is comprised of confidentiality forms. These forms simply need to be completed and filed along with the rest of the packet with the Prothonotary . The second part of the Custody Packet contains a form Custody Complaint, Petition for Modification, Entry of Appearance, two copies of a Criminal Record Verification Form and Petition to Proceed in Forma Pauperis. If you are filing for custody for the first time, you will want to complete the Custody Complaint (and not the Petition for Modification). If a custody case has already been filed, and you want to change the custody provisions, you will want to complete the Petition for Modification (and not the Custody Complaint). The Entry of Appearance and one of the Criminal Record Verification Forms will need to be completed and filed as well. If you are seeking that the Court allow you to file the Custody Complaint without cost to you, you will also need to complete the Petition to Proceed in Forma Pauperis.
Once you complete all of the necessary forms, bring them to the Prothonotary for filing. Please note that it is very important that when you fill out the forms, you do so completely and accurately.
What happens after I file for custody?
In Allegheny County:
When a Complaint is filed, the parties are usually ordered to attend a 4 hour education seminar (Generations) to help the parties learn to communicate better for the sake of the children. Most parties are also ordered to attend Mediation, where a professional mediator tries to get the parties to reach an agreement about custody. Victims of domestic violence, however, can be excused from mediation. If the parties reach an agreement, one of them usually hires an attorney to put the terms of the agreement in writing for both parties to sign and for the judge to sign as an order of court. If the parties cannot reach an agreement, a conciliation at court is scheduled. If the parties cannot reach an agreement with the court’s help, the court may order a home study and a psychological evaluation of the children, their parents, and any other significant adults who are helping to raise the children. Psychological evaluations are very expensive and the cost will be allocated according to the parties’ income. If your income is very low, a judge can order the county to pay for them, although this is very rare. The judge also has the power to enter an interim order giving both parties the right to have some contact with the children pending a full custody trial. Custody trials sometimes last several days, and are very ugly. They seldom make the parties into better parents and are usually very hard on the child. After the trial, the Judge makes a final decision.
In Butler County:
Butler County will first process your request for IFP status. If you are granted IFP status, the Court will then process your Complaint Regarding Custody. Once your custody complaint is processed, you will receive your 3 certified copies back in the mail. It is your responsible to serve the defendant. To do this, you should mail the defendant the Orders of Court, your Pro Se Complaint Regarding Custody, and a blank Criminal Record/Abuse Verification History packet. You do not send the defendant your IFP paperwork. This packet must be sent by certified mail, restricted delivery as well as by regular mail. You may also use the Sheriff to make service, or have someone else hand the packet to the Defendant. After service, you can complete and file the final page in your packet – Affidavit of Service.
You must attend a Families Forever class, and you must schedule it within five days of receipt of your paperwork in the mail. You may contact Lifesteps at 724-283-1010 to register, but you should not do this until you receive an Order directing you to do so.
You will also receive an Order to appear at a conciliation conference. The point of the conciliation is to try to determine whether you can work out an agreement and ultimately, prevent the case from going to trial. If both parties have an attorney, the attorney’s will talk with the conciliator (a lawyer that works for the Court) try to negotiate an agreement. There will be no witness testimony, no evidence presented, no children present etc. It is merely a conference to try to reach an agreement in the best interest of the children.
If no agreement is reached, the case begins towards trial - the conciliator will issue an order directing both parties to complete psychiatric evaluations, scheduling a pre-trial conference, and entering an interim custody order that you will have to operate under until either (1) you reach an agreement at a later date or (2) there is another order of court replacing that one. Psychiatric evaluations can be costly, but are a great tool for the Court to use in getting to know your case and situation. However, if you cannot afford them, you do have the right to ask the Court to skip this step and proceed directly to your pre-trial conference. Prior to the pre-trial conference, you will be required to submit a pre-trial statement. At the pre-trial conference, you will set your trial date and handle evidentiary issues. Custody trials sometimes last several days, and it may be difficult to participate in a custody trial without an attorney. After the trial, the Judge makes a decision regarding custody arrangements.
Once the documents you completed are filed, the Court will closely review the documents, including the Custody Complaint and the form which requests that you proceed in forma pauperis, that is, without cost. If there is a deficiency, the Court may require you to amend the documents in error and may not allow you to proceed until you correct the issue. The Prothonotary’s office will notify you of any such deficiency, and you will have to amend and re-file the documents in question.
If there are no issues with the forms, and if the Court grants you permission to proceed in forma pauperis, the Prothonotary’s office will obtain a custody conciliation conference date for your case, and serve all of the appropriate pleadings and Orders upon both you and the other party. If your Petition to Proceed in Forma Pauperis is denied, you will be required to pay the filing costs for the Custody Complaint before proceeding.
A custody conciliation conference date is usually scheduled within a month after the Court reviews the documents you filed. Custody conferences are conducted by a custody “Master.” The conferences are conducted informally. If both parties have attorneys, both attorneys generally meet with the Master first. If only one party has an attorney, or if neither party has an attorney, the conference will be conducted in the parties’ presence. The Master will receive information from the parties, ask questions, and then make a recommendation as to the custody schedule. This recommendation will be reduced to writing and given to a Judge of the Court of Common Pleas of Lawrence County for review and entry. It usually takes about ten (10) days after the conference is conducted for you to get an Order from the Courts. If you are not satisfied with the Court’s decision regarding custody of your child(ren), you may take an appeal of that decision, and the Court will schedule a pre-trial conference before a Judge, at which point your case will be reviewed again. If no settlement is reached at the pre-trial conference, a custody trial will be set.
What factors does the Judge consider when deciding custody?
Law requires judges to make custody decisions by determining what is in the best interests of the child. There are several factors a Judge must consider to help him/her determine what arrangement is in the child’s best interest. The Judge’s decision must discuss each factor.
The factors a judge must consider in a custody decision are:
- Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
- The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
- The parental duties performed by each party on behalf of the child.
- The need for stability and continuity in the child’s education, family life and community life.
- The availability of extended family.
- The child’s sibling relationships.
- The well-reasoned preference of the child, based on the child’s maturity and judgment.
- The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
- Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
- Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
- The proximity of the residences of the parties.
- Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
- The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
- The history of drug or alcohol abuse of a party or member of a party’s household.
- The mental and physical condition of a party or member of a party’s household.
- Any other relevant factor.
Understanding that a judge is required to consider each of these factors can help you formulate strong arguments to support your position. Provide examples and evidence to support how you provide a stable and consistent relationship with the child. Demonstrate to the Court your commitment to attending to the daily needs of your child.
What factors does the Judge usually not consider?
The Judge will not consider the relative incomes of the parties, as long as each party can provide for the basic needs of the child, such as food, clothing, and a warm and clean home. The Court will also not consider gender; the Court no longer assumes that a young child should be in the custody of its mother. In addition, the Court will not consider infidelity, so long as it is not harming the child. While judges may be interested in new significant others, they are usually more interested in how the new boyfriend or girlfriend is treating the child.
How are custody orders enforced?
If a party disregards or does not follow the terms of a court order, the other party has the right to file a petition or motion for contempt and/or enforcement. The Judge may schedule a hearing, if necessary, to determine issues of fact and to clarify whether the Court Order was violated. If a judge finds that a party has disobeyed a court order, and further, that that party did not have good cause to do so, the judge can provide a variety of remedies. For example, the judge can order fines, require a party to pay the other side’s attorney fees, and even in very serious situations, place a party in jail. More commonly, though, the judge will reiterate the importance of following the Order, and may impose financial sanctions.
How are custody orders modified?
Either party can file a petition to modify or change the court order, even so-called “final orders.” A Custody Order may be modified by agreement, but if there is an Order of Court in effect, the Court may not honor any subsequent agreements that are not made into an Order of Court. If an agreement is reached regarding modifications to a custody arrangement, you may compile all the terms of the agreement into a written document and ask the Court to make the agreement into an Order of Court. The benefit of having an agreement made into an Order of Court is that the terms of the agreement then become enforceable by law.
If an agreement cannot be reached, either party may file a Petition for Modification of Custody. The process is very similar to filing a Complaint for Custody, and requires an explanation as to why the requested changes will serve the best interests of the child.
Once I have a custody order, can I move with my child?
You may be able to relocate with your child, but there is a mandatory legal process to do so. The basic premise is that no relocation may occur unless every person with custody rights to the child consents or the Court approves the relocation.
The Court requires a formal procedure be followed. First, you need to give all parties notice, by certified mail, return receipt requested, of your desire to move within 10 days of knowing of the relocation. In addition to stating very specific information, such as your new address, who will live with you, a valid phone number, the nearest school district, your reasons for wanting to leave, and a revised partial custody schedule, you must also include with a counter-affidavit, which allows each party an opportunity to object to your relocation.
If you do not receive a response within 30 days, you need to file more paperwork stating that you gave notice, and that the other parent did not respond. You also need to include a petition to confirm relocation and to modify your existing court order, as well as a proposed order of court for a judge to sign off on. If, on the other hand, you do receive a written objection, a hearing will be held, and a judge at that time will decide if relocation is appropriate.