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The other parent and I agreed that the children will live with me. Do I need a court order to confirm this?

If your child is living with you and you have been able to work out arrangements with the other parent and if the other parent isn't likely to wrongfully take your child, you probably do not need to go to court to get a formal order setting out both parents' rights to custody and partial custody.

If my child's other parent does not pay child support, Do I have to let him or her see our child?   OR

 If I am not given visitation/partial custody rights, Do I have to pay child support?

Under Pennsylvania law, the duty to pay child support and the right to maintain contact with one's child are NOT connected.

This means that even if you are not seeing your child, you still have to pay child support, and that a parent can see his or her child even if he/she fails to make child support payments.

If I have a court order that grants the other parent partial custody/visitation rights, the court will force him or her to exercise them?

The courts really do not have the ability to make someone be a parent if he/she does not want to be one. All the court can do is make someone pay child support. If the other parent fails to use his/her visitation rights for a long time, you might want to ask the court to reduce or even terminate his/her visitation rights.

Does the father's name have to be on the birth certificate?

It depends upon the marital status of the mother at the time of the child's birth.

If the mother of the child is married at the time of the child's birth, the mother's husband is assumed to be the father, unless both the mother and the mother's husband give written acknowledgment identifying another person as the true biological father.

If the mother of the child is not married at the time of the child's birth, the father of the child is identified on the birth certificate only if both parents have signed a voluntary acknowledgment of paternity or a court has determined who the father is. If the mother refuses to consent to the acknowledgment of paternity, the father will not be identified on the birth certificate. The father will not have any rights or responsibilities as the child's parent (visitation or child support) until a court determines that he is the father.

A child must have the father's last name.

A child may be given whatever name that the parents would like. The child's last name does not have to have any relationship to the last name of either parent. What to name a child is the right of both parents.

If the father is not legally identified when the child's birth certificate is submitted (about ten days after the birth), then the mother has the sole right to choose the child's name.

If I tell the court that my child's other parent is using drugs will I win my case?

Custody cases are not different from any other court case - you have to be able to prove any claims that you make. In order to keep the other parent from having partial custody rights, you would have to show that it would be harmful for your child to spend time with him or her.

The test in court is what is in the child's best interests and the court assumes that it is good for children to have contact with both parents, until proven otherwise.

The other parent has no right to take our child around his/her girlfriend or boyfriend.

Unless you can prove in court that this person is dangerous or harmful to your child, a judge will most likely trust that neither parent would expose the child to dangerous people.

My child's other parent has not been around for the last few years. Now, he/she wants to see our child and I do not want him/her to. No court will give him/her visitation rights.

For better or worse, the law presumes that it is best for a child to have a relationship with both parents. Therefore, unless you can show that having contact with the other parent will harm your child, the court will probably give him or her limited visitation or partial custody rights. The judge may agree to a temporary restricted schedule if the child has not seen the other parent for a long time.

I need to file for custody quickly. Whoever files first gets what he/she is asking for.

It does not matter who files the papers and gets your case before a judge. The judge will decide who gets custody based on the child's best interest.

A mother will usually retain custody of her children unless the father can prove she is "unfit."

Under Pennsylvania law, there is no longer a presumption that a mother is a better parent. One factor a judge will consider is who has been the primary caretaker of the child and that can be either parent.

At the age of fourteen (14), children are free to choose which parent to live with.

There is no certain age at which a child can decide which parent to live with. The older the child is, the more a judge will consider the child's preference, but the decision is always up to the judge.

Only the parent the child lives with during the week has legal and physical custody of the child.

If there is no custody order both parents have equal rights to the child. Both parents have the right to make decisions for the child and either parent can take physical possession of the child at any time. Parents maintain equal rights to the child until a court order is granted and states otherwise.

Legal and physical custody are legal terms the court uses to describe the different types of custody the court can grant one or both parents.

Legal custody is the right to make important decisions about the child, such as medical and educational decisions. Joint legal custody is when both parents have this right. Sole legal custody is when only one parent has this right.

Physical custody describes who the child lives with and has the right to care for the child's everyday needs. There are several types of physical custody. Shared physical custody is when the child has has two homes and lives part of the time with one parent and part of the time with the other parent. Primary physical custody is when the court gives only one parent the right to have the child live with him/her most of the time.

If one parent has primary custody, the court may give the other parent partial physical custody or visitation. Partial custody is when the child lives with one parent, but stays with the other parent, such as on the weekends. Visitation is when a parent does not have any form of physical custody but has the right to spend time with the child.

§ 5328.  Factors to consider when awarding custody. 

(a)  Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1)  Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2)  The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(2.1)  The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(3)  The parental duties performed by each party on behalf of the child.

(4)  The need for stability and continuity in the child's education, family life and community life.

(5)  The availability of extended family.

(6)  The child's sibling relationships.

(7)  The well-reasoned preference of the child, based on the child's maturity and judgment.

(8)  The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

(9)  Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.

(10)  Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

(11)  The proximity of the residences of the parties.

(12)  Each party's availability to care for the child or ability to make appropriate child-care arrangements.

(13)  The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

(14)  The history of drug or alcohol abuse of a party or member of a party's household.

(15)  The mental and physical condition of a party or member of a party's household.

(16)  Any other relevant factor.

(b)  Gender neutral.--In making a determination under subsection (a), no party shall receive preference based upon gender in any award granted under this chapter.

(c)  Grandparents and great-grandparents.-- 

(1)  In ordering partial physical custody or supervised physical custody to a party who has standing under section 5325(1) or (2) (relating to standing for partial physical custody and supervised physical custody), the court shall consider the following:

(i)  the amount of personal contact between the child and the party prior to the filing of the action;

(ii)  whether the award interferes with any parent-child relationship; and

(iii)  whether the award is in the best interest of the child.

(2)  In ordering partial physical custody or supervised physical custody to a parent's parent or grandparent who has standing under section 5325(3), the court shall consider whether the award:

(i)  interferes with any parent-child relationship; and

(ii)  is in the best interest of the child.

(Dec. 18, 2013, P.L.1167, No.107, eff. Jan. 1, 2014)

2013 Amendment.  Act 107 added subsec. (a)(2.1). See section 6 of Act 107 in the appendix to this title for special provisions relating to applicability.

Cross References.  Section 5328 is referred to in sections 5323, 6340 of this title; section 6307 of Title 42 (Judiciary and Judicial Procedure).

New Section.