Can I Really Get Custody, if we still Live Together?

Pennsylvania’s Child Custody Act recently underwent major changes, affecting any new child custody action filed in Pennsylvania on or after January 24, 2011.  One of the ways these changes will affect Pennsylvania residents in child custody cases is that one can now clearly 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 and to sue someone living in the same household provided that the parties are living separate and apart (e.g., living ‘separate lives’). The custody order won’t go into effect until the parties begin living apart or one of the parties is awarded ‘exclusive possession’ of the residence. However, these changes allow a person to get the ball rolling sooner, since he/she can file the Custody Complaint and/or other custody motion, serve them on the co-resident, and await the conference or hearing.

If both of the children’s parents/caregivers are agreeing to a separation and want custody arrangements in place beforehand, this may be a good idea to pursue. They may want to obtain a custody order while living together so that the children know the arrangements, before the separation.  This may potentially ease the anxiety of the children and also that of the parents/caregivers, informing them 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 always wise to sue the other parent/caregiver for custody while living in the same residence.

There may be other potential legal ramifications to a parent/caregiver should he/she chose to pursue this route. The other parent/caregiver may react very negatively to being served with a Custody Complaint and/or other custody motion.  This could lead to the filer becoming a victim or perpetrator of a crime (specifically a violent crime), or becoming a Defendant in a Protection From Abuse action.  In either instance, such charges or proceedings could greatly affect the outcome of the custody case. Such an action can also affect the children. If there is a ‘lawsuit’ hanging over a household, that can negatively affect the environment in which the children would be living during the pendency of the lawsuit.

I think it’s nice that parents/caregivers have an option to obtain a custody order while living in the same household, but there are very few circumstances in which I would advise it.

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