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Custody

If your custody case goes to Court

Strict procedural rules apply to the filing of a custody action. Below are two Rules of Civil Procedure that address the initiation of a custody action.

Rule 1915.2. Venue.

(a)  An action may be brought in any county

 (1)  (i) which is the home county of the child at the time of commencement of the proceeding, or

     (ii)   which had been the child’s home county within six months before commencement of the proceeding and the child is absent from the county but a parent or person acting as parent continues to live in the county; or

(2)  when the court of another county does not have venue under subdivision (1), and the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with the county other than mere physical presence and there is available within the county substantial evidence concerning the child’s protection, training and personal relationships; or

(3)  when all counties in which venue is proper pursuant to subdivisions (1) and (2) have found that the court before which the action is pending is the more appropriate forum to determine the custody of the child; or

(4)  when it appears that venue would not be proper in any other county under prerequisites substantially in accordance with paragraph (1), (2) or (3); or

(5)  when the child is present in the county and has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.

(b)  Physical presence of the child or a party, while desirable, is not necessary or sufficient to make a child custody determination except as provided in subdivision (a)(5) above.

(c)  The court at any time may transfer an action to the appropriate court of any other county where the action could originally have been brought or could be brought if it determines that it is an inconvenient forum under the circumstances and the court of another county is the more appropriate forum. It shall be the duty of the prothonotary of the court in which the action is pending to forward to the prothonotary of the county to which the action is transferred certified copies of the docket entries, process, pleadings and other papers filed in the action. The costs and fees of the petition for transfer and the removal of the record shall be paid by the petitioner in the first instance to be taxable as costs in the case.

Rule 1915.3. Commencement of Action. Complaint. Order.

(a)  Except as provided by subdivision (c), an action shall be commenced by filing a verified complaint substantially in the form provided by Rule 1915.15(a).

(b)  An order shall be attached to the complaint directing the defendant to appear at a time and place specified. The order shall be substantially in the form provided by Rule 1915.15(b).


Official Note

See §  5430(d) of the Uniform Child Custody Jurisdiction and Enforcement Act, 23 Pa.C.S. §  5430(d), relating to costs and expenses for appearance of parties and child, and 23 Pa.C.S. §  5471, relating to intrastate application of the Uniform Child Custody Jurisdiction and Enforcement Act.

(c)  A claim for custody which is joined with an action of divorce shall be asserted in the complaint or a subsequent petition, which shall be substantially in the form provided by Rule 1915.15(a).

Official Note

Rule 1920.13(b) provides that claims which may be joined with an action of divorce shall be raised by the complaint or a subsequent petition.

(d)  If the mother of the child is not married and the child has no legal or presumptive father, then a putative father initiating an action for custody must file a claim of paternity pursuant to 23 Pa.C.S. §  5103 and attach a copy to the complaint in the custody action.

Official Note

If a putative father is uncertain of paternity, the correct procedure is to commence a civil action for paternity pursuant to the procedures set forth at Rule 1930.6.

(e)  A grandparent who is not in loco parentis to the child and is seeking physical and/or legal custody of a grandchild pursuant to 23 Pa.C.S. §  5323 must plead, in paragraph 9 of the complaint set forth at Rule 1915.15(a), facts establishing standing under §  5324(3). A grandparent or great-grandparent seeking partial physical custody or supervised physical custody must plead, in paragraph 9 of the complaint, facts establishing standing pursuant to 23 Pa.C.S. §  5325.

(f)  An unemancipated minor parent may commence, maintain or defend an action for custody of the minor parent’s child without the requirement of the appointment of a guardian for the minor parent.

Miller Lyden attorneys are experienced, aggressive trial attorneys. We can assist you with effectively preparing and presenting your custody case before a family law judge in court.

 


 

An understanding of the law and how cases are won and lost is critical in presenting a custody case before a custody judge. Miller Lyden attorneys are experienced, aggressive trial attorneys that will properly prepare your case. Pursuant to Title 23, Section 5328 of the Pennsylvania Code, the Court will consider the following factors.

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.

After consideration of these factors, the Court will issue an order. Typically, the order will include an opinion wherein the Court determines the factors established by the Plaintiff and/or the Defendant. Pursuant to Title 23, Section 5323 the Court will award one of the listed outcomes for each party.

5323.  Award of custody.

(a)  Types of award.–After considering the factors set forth in section 5328 (relating to factors to consider when awarding custody), the court may award any of the following types of custody if it is in the best interest of the child:

(1)  Shared physical custody.

(2)  Primary physical custody.

(3)  Partial physical custody.

(4)  Sole physical custody.

(5)  Supervised physical custody.

(6)  Shared legal custody.

(7)  Sole legal custody.