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CHILD CUSTODY

WHAT IS CUSTODY?

Custody is discussed here in the context of a minor child. In Pennsylvania, a minor child is under 18 years old.

Custody is a legal right. The right of custody allows a person to care, control, guard, and keep a minor child.

There are two types of custody: physical and legal.

What is a party? In a custody action, those who petition the court and file are “parties.” If two parents seek adjudication of a custody issue, then both are a “party.”

BASIC TERMINOLOGY

Before beginning to read this overview, it may be helpful to know some of the terms used in custody disputes.

1. Custody: custody is defined above and is discussed in more depth throughout this overview. Custody is the legal right to ‘care, control, guard, and keep’ a minor child. Custody also concerns the right to make major life decisions about the child. These decisions include medical, religious, and educational choices.

2. Mediation: sometimes a court will appoint someone to help the parties in a custody dispute reach an agreement. The mediator is not a judge; rather, the mediator is to help the parties agree. The mediator does not make legal decisions.

3. Order: a court can enter an order detailing the custody of the child. When a court does this, it is the law and must be followed.

4. Party: a party to a dispute is someone who has a stake in the dispute. In a custody dispute, the parents, grandparents, and other very involved adults can be parties to the dispute.

5. Emancipation: This is when a child under the age of 18 is “independent” of his/her parents. This is done by a court.

6. Petition: a person may petition (ask) a court to grant an order. Sometimes this is called “filling.” In a custody case, one party is petitioning the court to grant an order which gives custody (of some type, or apportioned) to one of the parties.

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WHAT TYPES OF CUSTODY ARE THERE?

Firstly, when one files a custody action then the judge will decide and apportion the two types of custody (physical and legal, to be discussed below.)

1. PHYSICAL CUSTODY

Physical custody is the physical possession and control of the child. It refers to the party with whom the child actually resides, either part of the time, or all of the time. Most simply, physical custody refers to “whom does the child live with?”

 

There are different kinds of physical custody. These are:

a. Sole: the court grants total physical custody to one party.

b. Shared: two or more parties have significant amounts of time which they may take physical control of the child.

c. Primary: the court grants one particular party more than fifty percent of the time with the minor child.

d. Supervised: “supervised” custody occurs when the court appoints an adult to oversee interactions between the minor child and a party.

e. Visitation: sometimes a corut will grant a party the ability to see the child. “Visitation” differs from “shared” custody because visitation only allows the party to visit the minor child; that is, visitation does not give the party the power to remove the minor child from the “primary” custodian.

These types of custody will be further discussed in the paragraphs below.

2. LEGAL CUSTODY

Legal custody is the right to make major decisions affecting the child. Major decisions can include education, elective medical treatment and religious decisions. Ordinary, day-to-day decisions like clothing, recreational activities, emergency medical decisions, etc. are made by the parent exercising physical custody. Medical and religious decisions about the child fall under the “legal custody” rubric. Courts have generally held that unless a parent is severely deficient in his/her ability to make major decisions regarding the child, parents usually share legal custody of the child, which means that they should consult with each other to try to make a joint decision.

 

There are two types of legal custody:

1. Sole: the court will sometimes appoint one party the sole legal custodian of a minor child.

2. Shared: more often, the court will decide that two or more parties have the right to decide major issues (such as religious and medical choices.)

 

3. SHARED PHYSICAL CUSTODY

Shared physical custody is an arrangement where custody is shared by the parents in such a way as to assure that each parent and the child will have frequent and continuing contact. Shared physical custody does not mean that both parents will share equal time with the child, although in some situations that may be the case. The usual case involves one parent having physical custody during the week (particularly where school-aged children are involved) and the other parent exercising physical custody during weekends.

 

4. PRIMARY PHYSICAL CUSTODY

Primary physical custody is where one parent has the child residing with her/him for a majority of the time.

 

5. VISITATION

Visitation involves a parent who does not have physical custody of a child visiting the child while the child is in the physical custody of the other parent. This visit takes place under the supervision of the parent who has physical custody or, in some situations, an agreed upon third party.

6. PARTIAL CUSTODY

Partial custody is the exercise of physical custody by the parent who does not have primary physical custody, and includes having physical possession of the child at periods of time either during the day or overnight.

 

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HOW IS IT DECIDED WHO GETS CUSTODY OF CHILDREN?

Parents begin custody matters on an even footing. The most important question which must be answered is what is, in the best interest of the child? All other considerations are subordinate to the child’s physical, intellectual, moral and spiritual wellbeing. The older and more mature a child, the more weight will be given to the preference of the child. Even the expressed wishes of a mature child will not be controlling, but will be found an important factor for the Court in deciding with whom the child will primarily reside. For such a preference to become an important factor, the child must give good, intelligent reasons for the preference.

 

IS A CHILD ALLOWED TO DECIDE WITH WHOM HE/SHE WILL LIVE?

Whether the preference of a child as to with which parent that child will primarily reside is allowed to control the court’s decision will depend on the age and maturity of the child. The older and more mature a child, the more weight will be given to the preference of the child. Even the expressed wishes of a mature child will not be controlling, but will constitute an important factor for the Court in deciding with whom the child will primarily reside. For such a preference to become an important factor, the child must give good, intelligent reasons for the preference.

 

CAN A CHILD DECIDE NOT TO VISIT WITH A PARENT?

The standard used to determine whether a child may decide not to visit with a parent is even stricter than the one used to weigh the child’s preference for custody. Because the Courts recognize that children can be influenced by the parent who has primary physical custody or alienated against the non-custodial parent by the parent with primary custody, the child’s preference will be given some weight but never will be controlling.

 

WHAT FACTORS ARE USED BY THE COURT IN DECIDING CUSTODY CASES?

THE “BEST INTERESTS OF THE CHILD”

The ‘best interests of the child’ is the legal standard which is used by courts when matters of custody are decided. This standard is used for both “legal and physical custody” decisions.

The “best interests” standard is rather open-ended with multiple facets. However, there are some examples of what the court will consider: the minor child’s physical and moral well-being, a violent or abusive household, whether one parent would support a “frequent and continuing relationship” between the minor child and another party, and the need for stability in the child’s life.

In brief, the court will consider: the parenting actions performed by the parties seeking custody; stability; continuing education; the possibility of harm coming to the child; whether one party will assist and encourage a relationship with the other parties to the custody suit; abuse; the child’s preference (however, the judge will determine whether the minor child’s maturity is sufficient to have a preference;) the actual geographic distance between the parties; the means and availability the parties have to care for the child; the conflict and cooperation of the parties; whether one party is more able to provide for the child’s development; drug and alcohol use; and the fitness of the parties’ and whoever resides in the parties’ households. This list, and the other lists provided in this document are not exhaustive, the court may consider other factors which it deems relevant to the custody decision.

In 2011 Pennsylvania passed new laws governing custody. After these changes, custody is still governed by the “best interests of the child” standard. However, courts are now forbidden to consider certain factors.

Since the 2011, the primary factor which cannot be solely considered is gender. Accordingly, new custody orders are to be “gender-neutral.” The court is disallowed from favoring one or the other party based on that party’s gender.

In greater detail, here are some more factors which the court uses to decide matters of custody:

1. SIBLINGS

Ordinarily the Court will try to keep siblings together. Unless there are strong reasons not to do so, siblings should be raised together, and this is true of biological siblings as well as half-siblings. Although the policy of Pennsylvania family law dislikes the separation of siblings, that preference can be overcome, particularly when siblings have not established a close bond and have a significant age difference.

 

2. PRIMARY CAREGIVER

The primary caregiver is the person who meets the child’s day-to-day physical and emotional needs and provides the child with proper supervision. This factor is most important when a child is young. The primary caregiver usually has a closer relationship with the child, is more experienced in meeting the child’s needs, and has demonstrated a commitment to caring for the child. If the parties have never resided together or have resided together for only a short time, the Court will look to the status quo to determine which parent is the primary caregiver. Where the parents have resided together, the Court will look to the pattern established by the parents themselves as to the delegation of care giving responsibilities.

 

3. PARENT’S NEW RELATIONSHIPS

When it is demonstrated that a child has developed strong bonds to a newly acquired family upon remarriage, the Court has viewed the continuation of such a relationship as an important factor in refusing to change primary custody. However, where no clear bond has developed or where there is a question about the stability to the new relationship, the Court will give little weight to this factor.

 

4. STABILITY

A long-standing custody arrangement where the child has a happy and warm relationship with a parent can be a decisive factor in a custody dispute. The courts have long recognized the importance of stability in a child’s life. This particularly includes maintenance of a single home as opposed to multiple moves, or living with various individuals. In a sense this factor also points out the importance of continuing the status quo so long as the status quo represents a positive influence on the child.

 

5. RELIGION

Religion is considered a factor in custody matters, but not a determining factor. The Court will rarely make a value judgment on the relative merit of the beliefs held by either of the parents. However, when any of the practices of a religion may have a harmful effect on the child, then religion will become an important factor. The religious issue is related to the stability factor. Where a child has, either by agreement of the parents, or by action of one parent without any objection by the other, received religious training in a particular faith, the Court will not likely disrupt that arrangement and will fashion a custody order that will support the continued exercise of that religious faith.

 

6. EMPLOYMENT

The Court will consider the work schedules of the parents and the amount of time each has available to care for the child in determining custody arrangements so as to stress to the fullest extent possible the time each parent spends with the child. While the parent who is not employed and has the ability to provide full-time care for the child has a certain advantage, a working parent who has appropriate alternative child care will not have that parent’s employment work against him/her.

 

7. SEX AND AGE OF THE CHILD

The sex and age of the child has limited importance in making a custody determination. There had been the “Tender Years Doctrine” providing that children of a young age were presumed to be better in the care of their mother. This doctrine has been done away with, but a court might state that a child would be best in the care of a particular parent because that parent would be a better “role model” for the child.

 

8. PARTIES’ FINANCES

The concern with finances is that the party must be able to provide an adequate home and environment for the child. A wealthy parent will not be granted custody over one of more average means on this basis alone.

 

9. PARTIES’ RACE

The Pennsylvania Supreme Court has held that race can be considered in making custody determinations. The court held that “race should be a factor, but only a factor” in determining the best interests of a child. There has been subsequent case law that has raised a question whether race can even be a factor in the custody determination.

 

10. ACCOMMODATING PARENT

An important factor in custody decisions is a determination as to which parent will most likely allow the child frequent and continuing contact with the other parent. Again, however, it is only a factor to be considered. The court may consider the impact of a parent who consistently weakens the relationship of the child with the other parent or humiliates the other parent to the child and will in some cases, deny custody to the offending party. Parent Alienation Syndrome is the “brainwashing” by one parent of the child and will be a factor that the court will consider in making a custody determination.

 

11. ABUSIVE CONDUCT

The trial court must consider each parent and adult household member’s present or past violent or abusive conduct when making a determination of custody, partial custody or visitation. The record should include any Protection From Abuse orders and testimony concerning the circumstances of the entry of that order. Where a parent has been convicted of certain crimes, including kidnapping, incest, and sexual abuse of children, the court must consider that criminal conduct and determine whether that parent poses a risk of harm to the minor child before making an order for custody, partial custody or visitation. Expert testimony concerning the risk to the child of contact with a sexual abuse or domestic violence offender may be necessary.

12. WHERE ONE PARTY HAS COMMITTED A SPECIFIC CRIME

Since the 2011 changes to the child custody laws, a court can consider whether a parent has been convicted of one of a list of specific crimes – for example, DUI and possession of a controlled substance.

To achieve this end, a parent can ask for a criminal background check to be completed on another party to the custody suit.

For more information about criminal convictions, please visit: http://ujsportal.pacourts.us/docketsheets/cp.aspx.

 

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WHAT HAPPENS IF A PARENT RELOCATES TO ANOTHER LOCATION?

It is clear that when a parent who does not have primary custody relocates, that parent bears the responsibility of maintaining regular contact with the child and must seek modification of the existing order to accommodate the move and to arrange the partial custody schedule for the convenience of the parties and the child.

Where a primary custodial parent relocates, that parent should bring the move to the attention of the court and modify the order to accommodate the move. Certain questions must be answered before the court will modify the order to permit relocation.

1. The potential advantages of the move and the likelihood that the move will significantly improve the quality of life for the custodial parent and the child, and is not the result of a momentary whim on the part of the custodial parent.

2. The integrity of the motives of both the custodial parent and the non custodial parent in either seeking the move or opposing the move.

3. The availability of alternative, realistic substitute visitation or partial custody arrangements must be explored. An ongoing, positive relationship between the non custodial parent and the child should be maintained.

However, in most cases, unless it can be established that the motivation for the move is to deny a relationship between the non custodial parent and the child, the courts are unlikely to stop a relocation.

Where there is a shared custody arrangement (for instance, a near equal sharing of custody) the positive aspects of the relocation must strongly outweigh the negative effects of disrupting the existing arrangements.

 

WHO CAN FILE A CUSTODY SUIT?

To file for custody of a minor child, a party must have standing. Standing means that a party possess the right to appear before the court and request something. To have standing, a party must have a significant relationship to the minor child. In general, there are three types of standing:

1. A parent. Parents of minor children may petition the court for either (physical or legal) type of custody.

2. In loco parentis: If a party has acted in loco parentis than that party may file for either type of custody. If you are a parent of the minor child in question, you cannot file in loco parentis. However, if you are not a parent, but you have acted as a parent (i.e., caring for the child, supporting the child,) then you may file in loco parentis.

3. A grand-parent: If certain conditions are met, then a grandparent may file for custody. This will be discussed below.

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CAN A GRANDPARENT FILE FOR A CUSTODY ORDER?

Yes, a grandparent can file for a custody order in certain circumstances.

First of all, grandparents can seek visitation and partial custody under the “Grandparent’s Visitation Act.” This grants visitation or partial custody to a grandparent with the condition that this would be in the child’s best interest. In addition, the visitation or partial custody must not unduly interfere with the child’s engagement with his/her parents.

Secondly, the grandparent, who is not currently acting “in loco parentis” can file for full legal and physical custody if a number of criteria are met. These criteria are:

1. One of the parents permitted the grandparent to establish a relationship with the minor child, or the court ordered that such a relationship be allowed to form, and

2. “The grandparent is willing to take care and responsibility for the child;” and

3. When one of the following criteria is established

a. The custody court decides that the child is at risk because of abuse, drug and alcohol use, or

b. Under the ‘child abuse and neglect laws’ the court finds that the child is ‘dependant,’ or

c. The minor child has resided with the grandparent for twelve months in a row, but is later removed from the grandparent’s home by the parents. In this unique case, the grandparent has 6 months in which s/he must file for cusody.

A grand parent or a great-grandparent may further file for partial physical custody or “supervised physical custody” if:

1. The original parent died

2. Or, the child’s parents have not lived together (i.e., they have been separated) for 6 or more months, or the parties have entered a divorce proceeding,

3. Or, the child has lived with the grandparent for 12+ months in a row and is removed by the parents (similar to above.) In this particular case, the grandparent is required to file for custody within 6 months.

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WHERE IS THE PROPER LOCATION TO FILE A CUSTODY ACTION?

1. JURISDICTION

a. When parents live in different counties or states, there are two authorities to be followed:

(1) Pennsylvania Uniform Child Custody Jurisdiction Act (UCCJA), 23 Pa. C.S.A. 5342

(2) Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. 1738A

b. Jurisdiction is determined by the UCCJA if:

(1) The jurisdiction was the “home state” of the child at the time the action was commenced or was the “home state” within six months of the commencement, the child is absent because of the removal by a person claiming custody and a parent still resides in the “home state”. “Home state” is defined as the state where the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent (or an institution) for at least six months. In the case of a child less than six months old, the state in which the child lived from birth with any of the persons mentioned.

(2) Where it is in the child’s best interest for the court to exercise jurisdiction because the child and one or both of his parents have a significant connection with the state and there is available in that state strong evidence concerning the child relevant to a custody determination.

(3) The child is physically present in the state and the child has been abandoned or is in need of protection due to mistreatment, neglect or abuse.

(4) No other state has jurisdiction or another state has refused jurisdiction on the grounds that the other state should exercise jurisdiction and it is in the child’s best interest for that state to assume jurisdiction.

(5) The child welfare agencies of the counties where the contestants for the child live have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.

(6) When there is a question as to the appropriate jurisdiction, the courts of the states in question are to communicate with each other to determine which state should exercise jurisdiction.

(7) All of these provisions apply equally to cases involving parents living in different counties in Pennsylvania.

c. Jurisdiction is determined by PKPA if there has been a child snatching in order to achieve a favorable custody determination in another jurisdiction. It gives complete priority to home state jurisdiction rather than treating it as a factor.

 

2. VENUE

Venue is the determination of which county in Pennsylvania should litigate the custody case. The courts of the various counties will use the factors outlined in the UCCJA to determine where the custody case should be heard.

 

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WHAT PROCEDURES ARE USED TO DECIDE CHILD CUSTODY CASES?

A. WASHINGTON COUNTY

1. Custody

A complaint for custody is filed with a proposed order scheduling a child custody conference. The court signs the order, with the date for the conference on it, and the complaint and order are served on the opposing party. In the case of modification, the petition to modify will, similarly, receive a conference date.

On the date of the conference, the Child Custody Conference Officer holds a pre-hearing conference in an effort to settle the dispute. If efforts to settle the case fail, the Child Custody Conference Officer will schedule a hearing to listen to the testimony of the parties and witnesses and make a proposed order. There is no record made of the testimony at the conference. The proposed order will include the date by which an appeal must be made or the proposed order will be approved by the court and become a final order.

Should either party file an appeal of the proposed order, a de novo hearing will be scheduled before a judge of the Court of Common Pleas. This means that a judge will hear everything new. Should there be an appeal of the proposed order, the parties will need to comply with the provisions of the proposed order.

 

2. Partial Custody/Visitation

A complaint for partial custody or a petition to modify an existing order for partial custody will be directed to the Custody Master for a pre-hearing conference, and should the case not be settled, a hearing. At this hearing, the parties and their witnesses will testify and a record of that proceeding will be kept. After that hearing the Custody Master will make a proposed order that will take effect unless exceptions to that order are filed.

Should objections be filed, there will be oral argument before a Judge of the Court of Common Pleas based on the existing record. After oral argument the court will enter a final order. Again, should either party file exceptions, the proposed order will not take effect and the parties will either comply with any existing order or be on their own.

 

B. FAYETTE COUNTY

In cases involving child custody, partial custody or visitation, the procedures are identical. After the complaint for custody/partial custody/visitation/modification has been filed, a child custody conference is scheduled. This conference is before the Child Custody Mediator who attempts to settle the case. No testimony is taken and no record is made. The mediator will primarily discuss the case with the parties’ counsel and will speak to the parties themselves should no agreement be reached.

If the case can not be resolved by agreement of the parties, the mediator will make a recommendation to the court of a proposed custody order. The court will take the recommendation of the mediator and enter an order based on the court’s discussion with the mediator. Should either party disagree with the order entered, they may file a pretrial praecipe and certificate of readiness. This will then cause the court to schedule a pretrial conference at which time the court attempts to mediate a resolution to the dispute. Should this effort fail, the court will then schedule a date for a hearing. While the recommended order is under appeal, the parties are obliged to comply with the order until a further order of court is entered.

 

C. GREENE COUNTY

In cases involving child custody, partial custody or visitation, the procedures are identical. After the complaint for custody/partial custody/visitation/modification has been filed, a child custody conference is scheduled. The custody conference is scheduled before a Child Custody Conference Hearing Officer. The parties are required to watch a 25 minute film concerning child custody actions. Then a conference is held at which no record is kept. The Hearing Officer will listen to the parties, interview the children (where appropriate) and other witnesses presented by the parties.

After the hearing, the Hearing Officer will make a recommended order which must be complied with by the parties pending further order of court. Any party objecting to the recommended order must file a request for a de novo hearing within 10 days of the date of the order. They will then have a new hearing before the Judge.

 

HOW ARE CUSTODY ORDERS ENFORCED?

The standard procedure for enforcing child custody orders is through civil contempt of court proceedings.

 

A. WASHINGTON COUNTY

1. Procedure

The proper procedure for enforcing a child custody order through the contempt process begins with the filing of a Petition for Contempt with the court. The judge who entered the order will then schedule a hearing on the issues raised in the petition.

2. Sanctions

Should the court determine that a party is in contempt of the order, the court will issue sanctions against the offending party until that party complies with the order. This may include incarceration.

 

B. FAYETTE COUNTY

1. Procedure

The proper procedure for enforcing a child custody order through the contempt process begins with the filing of a Petition for Contempt with the court. The matter will be referred to the Child Custody Mediator for a conference. The mediator will attempt to resolve the matter through an agreement of the parties. Should the matter not be resolved, and depending on the severity of the violation of the order, the mediator will either recommend that the existing order should be followed, or immediately meet with the issuing judge for the purpose of scheduling an expedited hearing before that judge.

In the case of a recommended order that the parties continue to follow the existing order, the aggrieved party may file a pre-trial praecipe to request a judicial review of the order.

In the case of a serious violation of the order, the court will schedule and hold a hearing promptly, usually within a week of the failed mediation.

2. Sanctions

Should the court determine that a party is in contempt of the order, the court will issue such sanctions against the offending party until that party complies with the order. This may include incarceration.

 

C. GREENE COUNTY

1. Procedure

The proper procedure for enforcing a child custody order through the contempt process begins with the filing of a Petition for Contempt with the court. The judge who entered the order will then schedule a hearing on the issues raised in the petition.

2. Sanctions

Should the court determine that a party is in contempt of the order, the court will issue such sanctions against the offending party until that party complies with the order. This may include incarceration.

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