General Information On Custody and Visitation
Authored By: Northwestern Legal Services
The following terms are used in custody lawsuits
Plaintiff - The person who starts the lawsuit
Defendant - The person who the Plaintiff is suing
Physical custody - Having the child under your actual care and control
Primary legal custody - The right to decide the child's medical care, education, religion, etc., to the exclusion of the other parent. Rarely does the court grant primary legal custody to a parent.
Shared legal custody - The right of both parents to participate in major decisions about the child and to each have time when the child is in their care. Most custody orders are for shared custody.
Primary residence - The home of the parent where the child spends most of the time based on the number of overnight visits during the week
Non-custodial parent - The parent with whom the child does not live most of the time
Partial custody - The time the child is in the home of the non-custodial parent. Most non- custodial parents get partial custody with their child, typically on weekends and for periods of time during the summer.
Visitation - The right of a non-custodial parent to spend time with their child, but with no right to take the child from the primary residence. A non-custodial parent will only have contact with his or her child limited to visitation under certain unusual circumstances where the court decides it would be in the child's best interests.
Supervised visitation - The right of the non-custodial parent to visit only if someone is supervising the visit. Supervised visitation is only ordered if the court decides the non- custodial parent may endanger the child unless another appropriate adult is present during the visit.
Third party - Any person who is not a natural parent of the child
Standing - The legal right to be a part of a custody suit
Jurisdiction - The proper court in which to sue
Best interest of the child - The standard the court applies in deciding what legal rights to custody and visitation each parent should have and how those rights will affect the child
Both parents have a right to have a relationship with their child, and a child has a right to have a relationship with both parents. Usually it is best for the child if both parents can agree about custody and partial custody. If you cannot agree and a custody complaint is filed, you will be leaving it up to a judge to decide what he or she believes is in the child's best interest.
Child support and custody are two separate issues. If the other parent fails to pay support, you may not refuse to allow contact by that parent with the child. Likewise, if the other parent refuses to allow contact, you may not stop paying support.
A written agreement concerning custody, even if notarized, cannot be enforced by the police. If you reach an agreement for custody, we strongly urge you to get your custody agreement made into a court order. Contact our agency to see if we can help you do this. Also, if you leave the child with the other parent, a grandparent, or another third party on a "temporary" basis, even if you clearly state this in a written agreement, you may lose custody if the other party changes his or her mind and takes you to court to obtain custody. This is because court's value stability in a child's life, and will not disturb a child's living arrangement if the child is doing well in his or her current situation.
Sometimes taking no legal action to have custody and partial custody decided is best. If there are no problems agreeing on custody and partial custody, no threats to take the child, or no attempts to visit the child in a while, there should be no reason to file a custody complaint. Since the court will most likely give the other parent liberal periods of time with the child, such as every other weekend, holidays and a period of time in the summer, it may be better for you and your child to simply keep the current arrangement. If the other parent is unhappy, they may file a petition to change the present schedule.
If someone files a custody action against you or you are thinking about doing so, you need to know that, under most circumstances, the case must be brought in the county where the child has resided for the last six months. However, you may file in a county where the child is residing even if not for the last six months if you can show that the other county is inconvenient, i.e., neither party nor child resides there, or it is in the child's best interests that the matter be heard there. If the other parent has filed a custody action against you and the child has not lived in the county where the case was brought for at least six months you should obtain legal help to object to the case being heard in that county.
Please note that if you are sued for custody/partial custody and an attorney represents the other party, call Northwestern Legal Services or your local legal services program to see if we can represent you.
It is up to each party to obey the custody order that you receive after your conference/hearing. If the other parent is not following the order, you should keep track of the incidents and notify the parent in writing that you expect them to obey the order. If the violations of the order are serious, such as the other parent refusing to bring the child back after a visit, or not allowing you the visits that the order gives you, you may file a petition for civil contempt. Contact us for help if this happens. If the violations of the order are not serious, but are still a problem, it may be better to contact your county's custody office or family law judge to explore alternatives to a court battle. Some counties have custody conciliators who will meet with both parties and try to mediate the problems.
Sometimes circumstances change that require a modification to the custody/partial custody order. If the changes are occasional, like changing a weekend visit so the other parent can take the child to a family reunion, you do not need to have the order changed if you and the other parent agree. If the changes would affect the ability of a parent to see the child under the terms of the current order, such as one parent wants to move out of state, then a petition to modify the custody order must be filed with the court.
Parents are generally the proper persons to have custody of their child(ren). If a third party, such as an aunt or close family friend feels that the child would be better off with them, they have to show they have been acting in a parental capacity for a long time and that it would be in the child's best interest. The more time the child lives with someone other than his or her parents, the more likely the court is to give a third party an opportunity to show that the child should live with him or her. Pennsylvania law does give grandparents more rights then other third parties to request visitation/partial custody and, sometimes, legal custody of a grandchild.
Grandparents have the right to visitation or partial custody if the parents are separated/divorced or the child has lived with the grandparents for 12 months or more. The grandparents of a deceased parent are also entitled to partial custody/visitation. In all these circumstances, however, the grandparents must prove it would be in the child's best interest to have visitation/partial custody. Finally, if a grandchild has lived with the grandparents for 12 months by agreement of the parents, a court order gave the grandparents the child (juvenile court) or they are caring for a grandchild at risk due to parental neglect, drug or alcohol abuse or mental illness, they may ask the court to give them legal custody of the grandchild. The court will then award the grandparents custody if it is in the child's best interest.
We have attempted to insure the accuracy of the information in this pamphlet at the time it was created or revised. However, the law does change, sometimes quickly and unexpectedly. Therefore, you should consult an attorney before taking or refraining from any action based on the information in this pamphlet.
Date Last Revised: December 2008