Matthew Kelly Associates
Winning Child Custody in Pennsylvania
Updated: May 11, 2022
Undoubtedly, there are many aspects to a legal battle for child custody that can be stressful and confusing.
With the number of determinations to be made, it can be difficult to know where to start to get the best result for you and your family.
Given the delicate yet challenging nature of a child custody case, it is important to consult with an expert in family law or child custody to help make sense of a trying situation.
Can I take my child if there is no custody order?
While it may seem intuitive that a legal order would be required to take your child, when there is an absence of a legal order of custody, both parents have the right to decide with whom they will live.
There are a number of determinations that can be made as to who has the right to take physical custody of the child. First, shared physical custody can be granted.
In this instance the child will live with both parents on a part-time basis.
Alternatively, primary custody can be granted to a parent, where the child will live with them on a full-time basis.
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In this case, partial custody can be granted to the other parent so that the child will be able to stay with them on a limited basis, such as one or two days per week.
Also, in cases where primary custody is granted to one parent, visitation may be granted to the other parent, where they are able to visit with, or spend time with the child, but the child does not live with them, even on a part-time basis.
Additionally, it is important to differentiate legal custody versus physical custody. While a parent may have physical custody of the child, whether through a court order or agreement between the parents, legal custody may be shared between parents. Legal custody entails making decisions about medical, educational, and other decisions that do not entail the child’s living arrangements.
This decision can be arrived at via an agreement between both parents. However, in an instance where an agreement cannot be reached, finding a family law attorney or child custody lawyer who can help decide what your options are and help present your case is important.
Legal custody and physical custody are not necessarily linked.
As such, legal custody and physical custody may have different determinations and a parent may be granted primary custody, but still have shared legal custody.
Can I get full custody of my child and still get child support?
While it may seem that custody and child support decisions are dependent on one another, custody status and child support are not linked, and determinations of who receives child support are reached separately.
However, in instances where one parent is granted full custody and files for child support, the non-custodial parent would be required to pay child support to the custodial parent. This is also independent of legal custody where both parents may be legally allowed to make major decisions regarding the child’s care, but the child is living full-time with one parent.
Additionally, as child support and custody decisions are reached separately, one parent or guardian is not entitled to withhold contact with the child due to non-payment of child support and vice versa.
Considering this, anyone who has custody of the child can receive child support.
This includes a grandparent or relative who has been granted full physical custody. Some other factors affecting a child support decision are if the custodial parent receives public assistance and if the non-custodial parent is absent.
When the custodial parent receives public assistance, the child support payments go to the Department of Public Welfare, though a portion of the payment may be given to the custodial parent. In addition, paternity must be established and there must be an identification of an absent parent. In the case of an absent parent, state and federal resources may be used to locate the other parent. When there is an instance where the non-custodial parent cannot be located, the custodial parent may still be entitled to assistance through the Temporary Assistance for Needy Families, or TANF program. While this is not permanent, as the name indicates, it can provide relief for a custodial parent needing cash assistance.
When making a child support determination, the income and assets of the non-custodial parent are considered. While the custody determination does not give weight to the net worth of a parent filing for physical or legal custody, this is an important consideration of the amount of child support that the custodial parent receives.
When the parents are not married, who gets custody?
When parents are determining child custody, marriage does influence whether the father’s name is on the birth certificate, as it is assumed that the mother’s husband is the father at the time of birth. This does have implications in terms of the father’s rights.
If the parents are not married and the father’s name is not on the birth certificate, under Pennsylvania law, he will not be held to responsibilities as a parent and will also not have parental rights, including legal and physical custody determinations.
However, if both parents sign a voluntary acknowledgement of paternity, or paternity has been determined by the courts, the father’s name does not need to be on the birth certificate.
Even if the parents are not married, but the father’s name is on the birth certificate, both parents have parental rights, thus can petition for custody, physical and legal, if they choose.
As with married couples, a custody agreement can be arranged outside of court; however, it can be helpful to consult with a family law attorney or child custody attorney to help determine your rights and responsibilities as the laws surrounding custodial rights and responsibilities can be complicated.
What are the father’s custody rights in Pennsylvania?
In Pennsylvania, while in the past preference was given to mothers, specifically, when the child is young, this is no longer the case.
Both parents are given equal standing regardless of gender and other factors are taken into consideration when determining full or shared child custody.
If the father’s name is on the certificate, the child’s parents have signed a voluntary acknowledgment of paternity, or paternity has been clearly established via the court, the father can file for legal and/or physical custody just as the mother is and can separately file for child support as well.
Additionally, the child does not need to have the father’s last name for him to be recognized as the father of the child.
What are the rights of grandparents or other relatives or guardians seeking custody?
There are instances where grandparents or people other than the child’s parents may seek custody or visitation rights. There are a number of factors in determining grandparents’ rights and those of others seeking custody of a child.
In the instance that a parent dies, the parents or grandparents of the deceased parent can petition for partial custody and/or visitation rights of the child, provided this does not unreasonably limit the relationship between the living parent and the child. In addition, in the state of Pennsylvania, the amount of contact between the grandparents or great-grandparents is decided by the courts prior to the application for partial custody or visitation.
In the case of divorce, provided that the parents have been separated for at least 6 months and the child has lived with the grandparents for at least 12 months, the grandparents can file for partial custody or visitation rights as well.
In this case, the courts must determine whether this is in the best interest of the child and, as with the death of a parent, ensure that this does not have a detrimental impact on the relationship between the child and parent(s). Additionally, if a child has been living with their grandparent(s) for a period of 12 months or more, regardless of reason, but the parents wish to remove the child from the grandparents’ home, the grandparents may apply for partial custody and/or visitation.
Balancing the needs of your child and the desire to make sure that they receive the best from you as a parent can be overwhelming when faced with a legal challenge. Contacting the experienced and passionate attorneys at Matthew Kelly Associates for a free consultation can help ease the stress of a burdensome situation.
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