DIFFICULTY: Legal assistance is recommended
Initial Filing Fee: $135 to $170
Child custody issues arise for many reasons, including but certainly not limited to divorce. In Pennsylvania, anyone who files for custody of a child or has a custody claim filed against them are referred to as “parties”, with each individual referred to as a “party”. Pennsylvania law divides custody into two forms: physical custody and legal custody. Physical custody determines how long a parent or other caretaker may spend with a child while legal custody determines who is allowed to make major decisions for and about the child. Both types of custody have a sole and shared version, where one party or multiple parties can share custody or decision-making powers. Physical custody also provides for the amount of time one party can spend with a child, a primary party spending the majority of time with the child and the partial party spending a minority of time with the child. It is rare in the state for one parent to be granted sole legal custody of a child, though parents aren’t the only parties allowed to file for custody in the state. The full list includes: parents, caretakers who have acted in loco parentis, a grandparent of the child, and a great-grandparent of the child. Because issues with children relate to their physical and mental well being, however, the number of forms available outside the courthouse are few and the vast majority of the process is mediated by official officers of the court.
Step 1: Establish Jurisdiction
In order to file for custody of a child in Pennsylvania, they need to have resided within the state and one of its counties for at least six months. One of the few exceptions is when the child is under six months old. If the child has not lived within a county for six months, then you will want to file in the previous county they lived. If for some reason you file for custody in the wrong county, the court may transfer the case to the appropriate county.
Step 2: Establish Relation to Child
When a child is born in Pennsylvania, the mother is automatically considered a legal guardian of that child. If she is married, then her husband (assuming he is the father) is provided the same legal guardianship. If she is not married, however, then there is not legal relationship between the father and child. This means to establish custody of a child, or to begin proceedings for custody, a father will need to have their paternity legally acknowledged by the state by filling out an Acknowledgment of Paternity Form. In cases of child support, paternity may also be established through genetic testing.
Step 3: File Custody Complaint and Order
You will need to go to the county courthouse in order to fill out the Custody Complaint form as well as issue an order for the defendant to appear in court. You will want to bring all relevant information with you when you go to the courthouse, including but not limited to: name and address of the defendant, information on who the child is currently living with, every address where the child has lived for the past five years, any prior custody order or paperwork, and any abuse orders or evidence of abuse. When you file the Custody Complaint you will also need to choose the custody plan you think is best for the child and justify that choice of plan. The plans available are full custody, partial custody, and visitation, and they are divided according to sole, shared, majority, and minority legal and / or physical custody of a child. If you are filing for custody of several children all in the same place and relation, then you can use one form for all of them.
Step 4: Serve the Defendant
If you are filing against someone then you are legally required to serve them a copy of the complaint as well as the order for them to appear in court. In the case of child custody, most parties are required to serve the defendant by mail, either by requesting a return receipt or keeping the green card from first class mail to verify that the documents were served. To serve through other methods, such as in-person or through the newspaper, you need to consult the county clerk and gain permission from the court.
Step 5: Schedule a Trial
After the complaint is filed, you will have 45 days in which to make initial contact with the court, either through a judge, one of their officers, or through a class / seminar. Additionally, if within 180 days of filling the complaint a trial date has not been set, the court will either dismiss the case or automatically enter an order to schedule a trial date, which will take place within 90 days of the time they enter that order. Some counties will attempt non-record proceedings initially, which is where both parties meet with a conference officer and attempt to resolve the custody issues outside of court. If this fails, however, a trial becomes necessary.
Step 6: Attend a Parenting Class
Every plaintiff and defendant in Pennsylvania is required to attend a parenting class. Classes vary from county to county. Failure to attend may result in dismissal of your complaint, denial of periods of custody, and could even cause you to be held in contempt of court.
Step 7: The Trial
A custody trial can take no more than 45 days from the time it starts to be concluded, and the judge must render a decision within 15 days of the trial’s conclusion. A judge may order the child or children and / or either of the parties to undergo physical or mental evaluations by a professional throughout the course of the trial. If at any point during the trial the two parties come to an agreement, they can notify the court on record or present a consent order, or an order stating their agreement, which would end the litigation.
Step 8: Custody Order and Reparations
Once a decision is reached, a custody order will be issued and copies will be provided to both parties as well as filed in the county. During this time one or both parties may also seek reparations for the costs incurred during the trial and custody process, though it is up to the court to decide whether to grant such reparations. Additionally, a custody order may be revised or readdressed later on if the court is uncertain that a child is in the best place or if their home situation changes. A current custody order is certainly not permanent or inalterable, although it carries a strong legal standing.