Posted in: Custody & Visitation
Whether through divorce, by the conclusion of a relationship that bore children but no marriage, or by any other reason that you may end up a single parent, facing custody concerns can be daunting. To say that significant issues could arise in a custody dispute is like saying waves could appear in the ocean. There is usually a lot at stake for both sides in any legal conflict; but perhaps never so much as with child custody rights issues. For, on both sides of a custody conflict is a single parent fighting for the right to be a parent. The more disintegrated the relationship between the parents, the more likely that the issues in the custody-determining process will be profound for all parties.
If you are an unmarried parent in Pennsylvania, you face some initial unique issues regarding your child even if or while your relationship is intact.
If you are an unmarried father and your relationship with your child’s mother either never existed beyond fathering the child, or comes to an end, your rights as a parent to custody or visitation may be in jeopardy. To avoid this, you must take certain, legal steps at some point after your child is born. In Pennsylvania, the child of unmarried parents is considered by law to be the child of his or her mother. The father must take legal steps in order to assert any future custody or visitation rights to his child. Essentially, you must admit or establish that you are the child’s father and you may do so in court, or by openly recognizing the child as yours either in writing or verbally. With paternity established, your circumstances and some of the custody issues you face as a single parent in Pennsylvania become the same as or similar to those described below.
In general terms, there are two types of custody in Pennsylvania: “legal custody” refers to the parents’ ability to make major decisions regarding their child (e.g., health, education, welfare, religion); and, “physical custody” refers to a parent’s right to have the child live with him or her where the child will receive day-to-day care. Within the two types of custody, there are different ways custody may be arranged. There is “sole” or “joint” physical custody, and “sole” or “joint” legal custody, and these may be arranged in different combinations.
In sole physical custody, the child lives with one parent while the other parent may have visitation rights; in joint physical custody, the parents share the day-to-day care of the child in their respective households. In sole legal custody, one parent has the authority to make all major decisions affecting the child, where the authority is shared in a joint legal custody arrangement. Typically in Pennsylvania, where a parent has sole legal custody, he or she also has sole physical custody and visitation with the other parent may or may not exist.
Some parents may attempt to agree to custody arrangements themselves, outside of court, and for some this may work. However, as you explore the issues below which can arise for parents involved with a custody arrangement—how easily your rights as a parent may be threatened if things grow contentious with your ex-spouse or the other parent—you may agree that the best way to truly protect your rights as a single parent is to get an official, enforceable, detailed custody order in place through the courts. Therefore, it is highly recommended that a single parent seek the assistance of an experienced family law attorney when navigating a custody dispute.
The quick answer is that Pennsylvania courts decide custody conflicts by considering what is in “the best interest of the child” and have done so since the early 19th century. How the courts go about analyzing the “best interest of the child” standard changed when a new child custody law went into effect in Pennsylvania in January 2011 (“Child Custody Act”). Prior to the Child Custody Act, Pennsylvania courts started a custody analysis with certain presumptions then used this vague, broad, largely undefined “best interest of the child” standard to devise custody arrangements. Under this system, courts and the parents and attorneys in the custody dispute lacked guidance about what factors should be considered as part of this standard. This seemingly led to unpredictable, bias-skewed results.
Under the current Child Custody Act, Pennsylvania courts are required to consider sixteen separate, specific factors when presented with a custody question. A court must consider each factor, with extra weight given to factors that go to the safety of the child, and the Child Custody Act requires the court to explain why it made the determination it did. These sixteen factors are informative for the types of issues all single parents in Pennsylvania should be thinking about when trying to safeguard their rights as parents in a custody dispute.
Some of the factors focus directly on the child, such as sibling relationships and the child’s custody preference. Some of the factors focus on the environment and support that each parent can provide the child, such as support of extended family, stability, availability and proximity of parent residences to one another. Understandably, most of the factors look closely at the parents, such as: which parent is more likely to encourage contact between the child and the other parent and has either parent attempted to alienate the other from the child; whether either parent has committed abuse, has a history of drug or alcohol abuse or presents a continued risk of harm to the child; which parent has performed which parental duties and is more likely to meet physical, emotional, developmental and educational needs of the child; and the level of conflict or cooperation between the parents.
As mentioned above, it is hard to imagine a more informative source of some of the custody issues that a single parent faces in Pennsylvania, than the sixteen factors Pennsylvania courts must use to decide these cases. Your starting point is a conflict regarding custody. Your hoped-for end result is a detailed, enforceable court order that benefits your child and meets your desired outcome in a custody arrangement. In the middle lies whom you must be and how you must live in order to achieve the end result. It may be safe to approach custody as if virtually anything could become an “issue” you are facing in the dispute. Below are just some issues you may face, born of the Child Custody Act, and some tips for facing them.
As noted above, part of what the courts must consider in a custody dispute is whether each parent has encouraged ongoing contact with the other parent, or whether either parent has attempted to alienate the other from the child. The important guidance here is to encourage good relations between your child and the other parent.
If you, as a parent feel that the other parent may be attempting to alienate you from your child (e.g., failing to turn the child over for scheduled visitation, speaking against you to the child, accusing you of unfounded mental or physical abuse of the child), you should seek the advice of an experienced family law attorney. It may be appropriate to seek: a modification to your custody order such as an increased visitation schedule; the court’s assistance in enforcing the order in place; joint custody of the child; or, other legal maneuvers aimed at stopping this conduct.
Even when, or maybe because, both parents have their child’s best interests at heart, a custody dispute can turn very heated and very ugly, very quickly. Single parents in Pennsylvania should be intimately familiar with how the courts determine custody disputes and devise custody arrangements, and should allow the courts’ considerations to guide them as much as possible.