Do You Need to Be Divorced to File for Custody in PA?

By Cindy Chung

When parents split or decide to raise their children in separate homes, each parent may need to learn more about Pennsylvania custody laws. Although a divorce between parents often includes custody issues, parents do not need to be divorced before a mother or father can file a complaint for custody. Parents may also choose to sign custody agreements without court intervention. If custody turns into a disputed issue, advice from a Pennsylvania domestic relations lawyer may be helpful.

Married Parents' Custody Rights

Pennsylvania custody laws allow any parent with legal rights to file a complaint for custody in the state courts. In general, a husband and wife both have legal rights upon the birth a child from their marriage. Unmarried parents must establish the father's paternity before he has legal rights to a child. The state's paternity laws permit unmarried parents to sign an acknowledgement of paternity form to establish a father's rights. An individual who would like to establish parental rights can also go through the courts to get a determination of paternity. When an individual has legal rights to a child, he can start proceedings to ask a Pennsylvania judge for a court order regarding custody regardless of whether the child's parents are married, separated, divorcing or unmarried.

Types of Child Custody in Pennsylvania

Any parent, married or unmarried, who plans to file for custody in Pennsylvania should know about the types of custody recognized by state law. Legal custody refers to each parent's right to participate in the child's life by making important decisions such as medical care and education. In Pennsylvania, many parents share legal custody. The state also recognizes several types of physical custody, which determines where the child will live. If one parent has primary physical custody, the child primarily lives with that parent. If parents have shared custody or partial physical custody, the child may spend periods of time in both households. If a parent does not have physical custody, state law supports the right to visitation.

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Custody Agreements

If married parents separate but do not have immediate plans to divorce, they might consider signing a custody agreement to describe each parent's custodial rights and the child's living arrangements. A custody agreement generally includes both physical and legal custody. If the parents are satisfied with their agreement, they might consider following it and avoid intervention through the Pennsylvania courts. Some parents with custody agreements also file for court oversight, however, because court orders offer protection to parents who need help with enforcement if future disputes arise.

Custody Complaint and Procedures

Unmarried parents and married parents without divorce cases may file for custody through the local Court of Common Pleas. The parent seeking a court order files a complaint as the plaintiff in the case. Pennsylvania's custody complaint requires the plaintiff to describe the marital status of each parent whether married, divorced or single. Both parents will likely need to appear for court proceedings and participate in a conciliation conference. Some Pennsylvania counties require parental participation in mediation services.

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