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Generally
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. Remember that no lawyer or judge can love your children the way you do, and no one is more qualified to decide what is best for children than their parents. Finding themselves in the middle of disputes between their parents is traumatic for children, even if it is sometimes unavoidable. Never forget that for children, particularly young children, you and the other parent are their world.
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.
Court-ordered programs
Courts recognize that a judge makes a poor substitute for a child’s parents. When a parent files a custody dispute in most counties in Pennsylvania, both parents (and sometimes the children) will have to attend court-mandated dispute resolution programs. In Allegheny County, for example, the parents will have to participate in the Generations Program, consisting of an educational seminar, age-appropriate programs for children between the ages of 6 and 15, and a two-hour mediation session. Parents will sometimes also be ordered to participate in a “co-parenting counseling” program, in an effort to improve communication between them and to give them an opportunity to air and discuss grievances in a protected environment. These programs often do lead to settlements, so it is a good idea to go into them with an open mind, even if you are skeptical about how useful they are likely to be.
Physical custody and 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 with your divorce or family law matter in Southwestern Pennsylvania, call me to set up a personal consultation. This blog will feature periodic updates. Consider subscribing! Please do not comment anonymously, and do not post anything that you consider confidential. I try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that I will not offer legal advice via the Internet.
Michael B. Greenstein
Greenstein Family Law Services, P.C.
1789 S. Braddock Avenue, Suite 590
Pittsburgh, PA 15218
Phone: 412-371-4500
Fax: 412-371-4501
http://www.greensteinfamilylaw.com
Pittsburgh Divorce & Family Law Attorney Michael B. Greenstein 
I filed for physical custody and full legal custody of my two children. A few days later, I get papers from my ex’s county saying he filed as well. Ive always had my children and their father never bothered to fight for them in the past. He is only doing this to get out of paying child support, and to stir my emotions up. So since we both filed, who’s county is primary? And what happens to the other case?
For purposes of this answer, I’m assuming that you have lived with your children in your present Pennsylvania county for at least the last six months (otherwise, the analysis may be a bit more involved). If my assumption is true, the case will probably ultimately proceed in your county. Take look at the Pennsylvania rule of civil procedure relating to venue in custody cases to see for yourself whether your ex has a legal leg to stand on.
Obviously, two custody cases in two different counties is something nobody wants, but the last thing you can afford to do is to stick your head in the stand. I almost always recommend being proactive when it comes to custody matters of any sort. Assuming that your own custody filing has already been properly served upon your ex, the best way to proceed might be to draft, schedule and present a Motion requesting a determination (in your favor, of course) as to where the case should proceed. Much may depend on the contents of your ex’s custody petition, so I urge you to sit down with a child custody lawyer and get some professional feedback. Ultimately, the assigned judge from each county will probably have to speak together and make a determination where the case should proceed.
I live in Allegheny county but my daughter lives in Virginia. Which she has been for the past year. But before she was even born the mother moved to Missouri which is where my daughter was born. I know my case would be in Virginia but what I’d like to know is even though my name is not on the birth certificate(I was denied to see the birth) what is the likleyhood of getting a DNA test and visitation since I’m out of state how would that work.
You need to ask a Virginia family law attorney, I’m sorry to say. For most purposes relating to family law, and certainly including child custody cases, fifty states might as well be fifty independent countries. From the perspective of a Pittsburgh child custody lawyer, Virginia might as well be Timbuktu.
That said, I would be surprised if there was not a way to accomplish what you desire. In Pennsylvania, you would file an action in paternity to get your genetic test.
Whatever you do, it sounds very much like time is NOT on your side. In general, I recommend heavy proactivity where child custody matters are concerned. No matter how heinous your co-parent may be for withholding your daughter, in my experience a parent is less likely to be judged by what obstacles may have been put between him and his children, than by whether he allows himself to be stopped.