Custody Laws in PA When Parents Are Not Married

PA Custody Laws Explained

For either married or unmarried parents, the basic principles of Pennsylvania’s child custody laws are generally the same. In fact, an unmarried father can seek to obtain custody or parenting time with his child, as a biological or natural father, without the necessity of establishing paternity. Likewise, an unmarried mother can seek the same, as a biological or natural mother, without establishing paternity. Even though a father may not have established paternity, he can still hire an attorney to help him establish his custody rights after filing for a case in the appropriate court.
Pennsylvania considers several important factors, which are generally the same, in determining what is in the best interests of a child for purposes of custody and parenting time . Those factors include: each of the parent’s and child’s preferences; the child’s relationship with his or her parents, siblings and other family members; how well each parent has been able to care for, nurture and raised the child; the stability of the home environment of the child; the geographic proximity of the parents to each other, when close proximity is possible (example: they live in the same school district); if the parents are already sharing custody and parenting, has that arrangement worked for the child; the mental and physical health of the parents and child; and whether one of the parents will be the primary caregiver. If either or both parents have been found to have engaged in any type of domestic violence toward one another or the child, then that will be a significant factor as part of the custody determination.

Unmarried Parents’ Rights

In Pennsylvania, the rights of unmarried parents are distinct, with the law striving to treat those parents similarly to married parents wherever possible. The legal procedure and outcome is even similar to what occurs when parents are married. As in the case of married parents, parents who are unmarried have the ability to choose to obtain a custody order during negotiations or a trial. In fact, divorce is not an element required to receive a custody order. Additionally, the presence of a custody order does not hinge on the person’s entry into marriage. Generally, the best interests of the child are the overarching component of any custody decision.
Custody orders are not limited to parents who were involved in a relationship. A parent can have a custody order against someone other than an ex-spouse. Existing doctrine makes it clear that there is no difference in rights for custodial parents whether they are married or unmarried.
It is important to remember that if you are married, you have the legal presumption of paternity in Pennsylvania. This means that you are presumed to be the father of a child conceived during marriage – unless DNA testing proves you to be mistaken. There also is a presumption of paternity if you are unmarried but you took the following steps:
• You and the mother signed an Acknowledgment of Paternity at the hospital
• The child was in your physical custody for the first 72 hours of life
• You became a registered blood relative with the Pennsylvania Department of Health
Establishing or disapproving of paternity can be accomplished through genetic testing. The courts take the existence of a custody order to mean that the parties already had their day in court – where the best interests of the child were the priority. Pennsylvania courts will not become involved in the matter again unless the party seeking modification can definitively prove this to be in the best interests of the child.

Establish Paternity

Establishing paternity is crucial to a custody case involving unmarried parents. When parents are not married, the father has no legal authority over the child and is considered only a third-party to a custody case. This really comes into play when the parties can’t agree on a parenting plan. The mother has all the legal rights to the child until paternity is established. This gives the mother the right to determine where the child resides, what school the child will attend, what doctor the child will see, and what extracurricular activities they will participate in. While the law presumes that the biological father (the husband of the mother at the time of conception) is the father of the child, the father has no legal rights to access to the child or any other decision-making authority. The mother has no legal obligation to inform the father what school the child is in, and only notify him about doctor’s appointments for emergencies. This has real ramifications in our cases. I’ve seen cases where the mother of the child moves to another state for a weekend and then refuses to provide the child’s address to the father. Without any rights to the child, the mother only needs to send him a postcard with the new address and she is in the clear.
There are two ways to establish paternity. First, on the birth certificate. Many parents opt to check the box on the birth certificate acknowledging the name of the father and both attending with the child’s mother. Second, is the signing of an Acknowledgment of Paternity. This form must be completed with the attending hospital staff once the child is born. This last option is not as commonly used and the hospital staff will usually encourage it when the parents are not married.
Most often, paternity will be established through the filing of a Petition for Paternity in court. Without getting overly technical, a Petition for Paternity can only be filed after a child involved in a custody action is 60 days old, but no later than 6 months prior to the hearing. This will also have the effect of automatically terminating any "unknown father" rights of the biological mother. The court will often then order a Genetic Test to confirm paternity. This can be done at the time of the birth as well, if the father wishes to ask for genetic testing from the hospital. Unmarried fathers who have concerns about paternity should ask the hospital staff about the costs of the genetic test, prior to signing the acknowledgment of paternity.
This is the first part of a multipart series on Understanding Custody Laws in PA for Unmarried Parents.

Custody Agreements Unmarried Parents Must Make

There are no restrictions on unmarried parents entering into custody agreements, aside from the requirement that the agreements be in writing. Additionally, there is nothing prohibiting agreements as they relate to unmarried parents of children of the same parent. Instead, the law governing custody to this extent is general in nature and does not alter the basic evidentiary requirements for establishing reasons to grant an award of custody exclusively to one parent.
An agreement between unmarried parents is a legally binding agreement between the parents. The agreement will not be enforceable, however, if accomplished by fraud or coercion, or if it violates the criminal code or public policy. In order for the court to approve the agreement, the agreement must be reviewed and approved by the court.

Factors Judges Use When Deciding Custody

Pennsylvania law provides the factors that courts must consider when deciding custody and partial custody cases. Specifically, § 5328(a) of the Pennsylvania Domestic Relations Code (23 Pa.C.S.A. § 5321 et seq.) lists 16 factors a court must consider when determining the best interests of a child when determining the custodial rights of parents . As subsections to § 5328(a), the legislature wanted to ensure that the facts and the circumstances of each case are considered. Of course, you must understand these "best interest" factors in order to make informed decisions about your case, and to prepare a proper case for your attorney to argue in a court of law.

Responding to Requests to Change a Custody Order

In custody cases, Pennsylvania courts make a final custody order in the best interests of the child presented to the court. While a final custody order is meant to be stable, circumstances may arise after entry of the final order that require a modification in the best interest of the child.
Further, Pennsylvania courts recognize a few different kinds of situations where parties can petition the court for more limited modifications of a custody order. For example, if parents have been informally exercising split summer custodial time, it is not uncommon or acceptable to have the parties and the trial court formalize it into a modification of the custody order, at least as a matter of course. It may be questionable to do so. Thus, a modification may be proper in this instance out of respect for the parents’ intention to be in agreement on a change from informal practice of summer custodial time, but the parties’ sincerity in implementing it remains the same.
In PA, parents may often reconcile after a break up where there has been or is an ongoing custody case in exchange to live together again in cohabitation with a common residence. Once parents reconcile and resume living in the same home, PA courts will often defer to the parties’ rights and responsibilities as parents to accept or reject a modification of custody order requested by one or both parties. Thus, parties may implement varying high levels of parental rights and agreed parental duties in the best interest of their children.
A Northumberland County trial court judge once stated that it is his intention to enforce its custody orders, but to allow parents to work out most differences in the nature of the custody order’s time schedule, in recognition that they are parents capable of resolving most ordinary issues, by the court’s terms and definition. Further, the judge stated that it is generally better to enforce the order so that the parties have a clear record of changing time and timesaving flexibility and increased parental time.
In Pennsylvania, any person can take note of a violation of a custody order and petition the court on behalf of a child or through an attorney. In a custody order, days, times and/or other specific details are set. If either parent fails to comply with the order, either parent can petition the court for contempt of court against the non-compliant parent.
Courts may also find a lack of inability to comply with the order beyond the control of the parent who did not comply. In such case, courts may provide for an alternate plan of compliance with the existing schedule, rather than contempt of court. Courts may also provide for a brief schedule or temporary schedule that matters not previously discussed and treated in the custody order.
Whether or not contempt of court, violation of custody orders in Pennsylvania may carry real consequences that could cost more than money.

Legal Help for Unmarried Parents

For unmarried parents seeking to establish residence in Pennsylvania, there are resources available to assist in navigating the courts and effectively filing a custody petition. In every county in Pennsylvania, there are family court facilitator offices that have staff able to help with most family law issues. The family law pro se clinics provide assistance with custody, divorce, support, and protection from abuse matters. This assistance ranges from help completing forms and instructions for filing documents, to clerical assistance, educational pamphlets, and referral services for relevant agencies. Assistance usually is provided on a first-come basis and may not be available on-site every day the court is open . Lawyers concerned with custody of children make up a small but dedicated segment of the legal profession. The Pennsylvania Bar Association, along with every local bar association, publishes a directory of members, sorting them by "practice emphasis" areas. Individuals seeking an attorney with experience in child custody matters can seek out such lawyers by checking the local bar association’s online lawyer directory. For those situations when there is an overwhelming need for legal support, there are legal aid organizations. These organizations include Pennsylvania Legal Aid Network (www.palawhelp.org); Legal Services of Pennsylvania; Pennsylvania Health Law Project; and the Pennsylvania Coalition Against Domestic Violence.