Before a couple separates, there is no established “custody” of the children, and neither parent has more rights toward the children than the other. It is important for parents to realize that even if their romantic relationship is ending, their relationship as parents will continue as long as they live; they are stuck with each other, for good or ill. It can be extremely difficult to avoid letting the problems between the adults spill over into the parenting, but insulating children from those disputes is ultimately the best and most constructive thing to do. There is simply no substitute for two parents working together in the best interest of their children, and letting the children see their parents continuing to cooperate after they separate can ease their transition into the new situation, however it works out.
No matter how willing you are to keep adult issues between the adults, however, sometimes a parent is forced into dispute by the actions of the other parent. In that instance, the court is available to address the dispute and attempt to bring stability to the situation. Bear in mind, however, that not only can custody litigation be very expensive and personally difficult if matters do not resolve through settlement, it places the decision-making power into the hands of a judge who is likely to presume until proven otherwise that both of you are competent, capable parents who simply cannot agree about the welfare of your children. It is also true that custody litigation can sometimes be a necessary “wake up call” to an over-controlling parent whose actions are interfering with the other parent’s relationship with the children.
Custody rights are viewed in Pennsylvania as belonging to your children, rather than either to you or to the other parent. Should a custody matter be brought before a family court, that court will have only one consideration: the best interest of your children. It is important to realize that no court will care how hurt you might be over the situation, or how outraged you might be, or how much you miss your children; a judge will be deaf to all arguments based on those concerns, and will focus only on your children’s welfare.
Because the welfare of your children is at stake, it is often a good idea to be proactive about custody issues; that does not always mean using a court as a first resort, but it does mean trying to stabilize the situation and reach agreements, if possible, while getting as much information as you can to help you decide what to do in the event that no agreement can be reached. Your divorce and family law attorney can advise you not only about your options in court, but also about possible approaches to the situation (and to your co-parent) that may allow you to resolve your situation without litigation.
Physical Custody vs Legal Custody
There is a distinction in Pennsylvania between “physical” and “legal” custody of your children. Physical custody identifies which parent has the right to take the children from the other parent at a particular time. Legal custody identifies who has the right to be notified about matters affecting the children, who has access to information and records about them, who has the right to be consulted before decisions are made about them, etc. “Visitation,” as opposed to physical custody, is a much weaker relationship. There are rare occasions (usually involving violent behavior) in which a parent is limited to supervised visitation.
Many custody relationships between separated parents are based on one parent having primary physical custody, with the other parent having partial physical custody (such as every other weekend with time during weekday evenings, with arrangements for holidays and vacations), although the trend in Pennsylvania appears to be to maximize each parent’s involvement with the children in a shared physical custody arrangement, to the extent possible. Whatever the physical custody arrangement, both parents usually share joint legal custody in recognition that neither of them should be forced to become a part-time parent. Only in rare circumstances does a parent get an award of sole custody of a child.
There is no ‘magic age’ at which children get to decide for themselves between their parents. Judges often will talk to the children in a disputed custody situation, but will not automatically allow a child to select his or her own custody arrangement; instead, judges will take the entire situation into account, and will decide accordingly.
If you need legal assistance in a child custody matter arising in Central Pennsylvania, call Holt Law. Call me at (717) 562-1777 or email me.