Custody Process

Custody begins with a custody complaint, which can be filed as part of a divorce or on its own. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) 23 Pa. C.S. § 5401 et seq; designates where the complaint can be filed, usually in the county and state that has been the child´s home for the past six months.

Children keep their old home county and/or state until they have been in a new state or county for six months. Custody jurisdiction can be very complicated: in some instances a court can assert temporary emergency jurisdiction; in some instances a court will choose to decline jurisdiction if it was obtained by fraud or wrongdoing of the person seeking to access the court for help in the custody matter. It is extremely important to consult an attorney about custody jurisdiction questions. The Legal Resource Center on Violence Against Women may be a place to start.

After the complaint is filed, each county in Pennsylvania has its own manner of processing custody complaints. This process varies from county to county; some counties require parenting education classes or mediation. However, because mediation is considered to be inappropriate in cases involving domestic violence, a court may not order mediation where it is disclosed that domestic violence or child abuse occurred within two years of the custody complaint (23 Pa. C.S. § 3901(c); Pa. R.C.P. 1940.3(b)).

Most counties use a custody conciliation or conference process. Generally, a custody officer will set up an informal meeting with the parents in an attempt to help the parents reach an agreement about custody. Many times the custody officer can help parents reach an agreement, which the officer will have written up and signed by a judge. Both parents get copies of the order. As stated above, orders that are specific are more easily enforced and tend to limit conflict. In cases involving domestic violence, it is also appropriate to ask for safety provisions in the custody order, such as supervised exchange or limited contact between the parties.

If the parents cannot agree to an order at the custody conference, the conference officer will try to get them to agree to a temporary order and will then send it to court to be assigned to a judge for a trial. Other than the parents, only a judge can make a final decision on primary custody. A judge must make a decision about custody based on the child[ren]´s best interest. In Pennsylvania the best interest standard generally refers to any factor that "legitimately impacts the childs physical, intellectual and emotional well-being" (23 Pa. C.S. § 5303(a)). During a trial, a judge must get information and make sure a complete record is created, in order to fully consider and address the child[ren]´s best interest.

During a custody trial, there is no jury. The judge will listen to the parents and their witnesses´ testimony, and make a decision. The law in Pennsylvania tells judges what to look for and what factors to consider in making a decision for custody, ultimately based on what is in the child´s best interests. One of the factors is domestic violence. A judge must consider each parent´s and household member´s present and past abusive or violent conduct when making a custody order. The judge must also consider which parent will better facilitate a continuing relationship with the other parent. The third factor a judge must consider is the child´s preference. It is not true that children over 12 years of age get to choose which parent they want to live with. It is true that a judge must talk to children over 12 and get their input. However, a judge may disregard a child´s stated preference if the judge believes it is not in the child´s best interest. Some judges talk with children no matter how old they are.

Another factor judges must consider is whether or not a parent has been convicted of or pled guilty to certain crimes. If so, the judge must determine if that parent would be harmful to the child before the judge makes any custody order. The judge determines this by ordering the offender into counseling with a counselor experienced in dealing with people who have committed that particular crime and then asking the counselor for an opinion.

Once a judge makes a decision, it will be written into a court order and both parents will get copies. Custody orders may be modified as the needs of the child change. Either parent may ask for a change in the custody order, and, generally, the whole process starts again. Parents who do not follow the custody order may be held in contempt. If a parent is found in contempt, he or she may be fined or could go to jail for up to six months. Custody can also be changed as part of a contempt order, if the other parent asks to modify the current order.

Third Parties

Occasionally, third parties such as grandparents, aunts, uncles or step-parents seek custody. It is very difficult for third parties to obtain custody, but under certain conditions, they may be able to get custody or visitation. This is because the law says that parents have a superior right to have custody of their children, and other people should not be able to interfere.