We live together but Can I Get Custody?

Posted by Laura Robbins, Esq. on September 6, 2011 

We live together but Can I Get Custody?

Recently, Pennsylvania’s Child Custody Act underwent sweeping changes. These changes affect any new child custody action filed in Pennsylvania on or after January 24, 2011.

There are several ways in which these changes will affect Pennsylvania residents in their child custody cases. One of these ways is that you clearly can sue for custody of a child while living in the same residence of the child’s other parent/caregiver. 23 Pa.C.S.A. Section 5323(h) allows an individual with ‘standing’ to seek custody of a child (e.g. someone who is entitled to ask for custody rights to a child) and to sue someone living in the same household provided that the parties are living separate and apart (e.g., living ‘separate lives’). Granted, the custody order does not go into effect until the parties begin actually living apart or one of the parties is awarded ‘exclusive possession’ of the residence. However, you can go to Court, file a Custody Complaint and/or other custody motion, serve them on your co-resident, and await your conference or hearing.

This may be a good idea in some instances. For example, let’s say both of the children’s parents/caregivers are agreeing to a separation and want custody arrangements in place beforehand. They may want to obtain a custody order while living together so that the children know what’s going to happen to them before the separation, potentially easing their anxiety.  It may also ease the parents’/caregivers’ anxiety as to how much access to their children they will receive after the separation.

It is my understanding that the purpose of Section 5323(h) is to help curtail a parent from removing a child from a residence to the exclusion of the other parent, thereby unfairly setting up a new ‘status quo’ for the child’s living arrangements, before a custody proceeding is brought before the Court. However, I don’t think it’s necessarily wise to sue the other parent/caregiver for custody while living in the same residence.

I am concerned about other legal ramifications a parent/caregiver would endure should he/she pursue this route. How would the parent/caregiver being sued react to being served with a Custody Complaint and/or other custody motion? Probably not well. I can easily envision the filer either becoming a victim or perpetrator of a crime (specifically a violent crime), or the filer becoming a Defendant in a Protection From Abuse action. In both of these instances, such charges or proceedings could in itself greatly affect the ultimate outcome of the custody case. In addition, what about the children? If there really is no custody agreement and there is a ‘lawsuit’ hanging over a household, in what type of environment would the children be living during the pendency of the lawsuit? Probably not a comfortable one.

In conclusion, I think it’s nice that parents/caregivers have the option of obtaining a custody order while living in the same household, but there are very few circumstances in which I would advise it. What do you think?

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