The child custody process in Pennsylvania can be emotionally challenging and stressful for parents. Parents often find themselves unable to agree when it comes to exercising custody of the children because they recognize that each hour that passes without the children, is an hour of time lost that the parent can never get back. The custody process takes time to move through the court system and during this time, the parents incur legal fees and costs. Therefore, the decision to hire the right child custody lawyer is an important decision and choosing the right lawyer can help to alleviate some of the stress and uncertainty of a child custody dispute.
DEFINING CUSTODY IN PENNSYLVANIA
There are two types of main categories of custody in Pennsylvania – legal custody and physical custody. Each category is then broken down into sub-categories as defined below:
- LEGAL CUSTODY. This is defined as the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions. There are two types of legal custody:
- Shared Legal Custody. In most custody cases, the parents and the courts recognize that 50/50 legal custody is standard.
- Sole Legal Custody. When the facts of the case require a deviation from the norm and the court awards legal custody to one parent.
- PHYSICAL CUSTODY is often the point of contention between parents. Physical custody is the actual physical possession and control of a child. There are different types of physical custody:
- Partial Physical Custody. The right of a parent to assume physical custody of the child for less than a majority of the time.
- Primary Physical Custody. The right of a parent to assume physical custody of the child for the majority of the time.
- Shared Physical Custody. The right of more than one parent to assume physical custody of the child, each parent having significant periods of physical custodial time with the child.
- Sole Physical Custody. The right of one parent to exclusive physical custody of the child.
- Supervised Physical Custody. Custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.
AWARD OF CUSTODY
After considering the factors (described below), the court may award any of the aforementioned categories of custody if it is in the best interests of the child. For example, a court could award a parent with Primary Physical Custody and Shared Legal Custody which means that parent has physical possession and control of the child for the majority of the time, but the parent will share in the medical, religious and educational decisions with the other parent. The other parent would then have Partial Physical Custody and Shared Legal Custody which means that the parent would have physical possession or control of the child for less than the majority of the time, but the parent will share in the medical, religious and educational decisions with the other parent.
STANDING FOR PHYSICAL OR LEGAL CUSTODY
To start a custody action, a person must file a Complaint. The Complaint is a formal request for the court to award physical and legal custody to the person who filed the Complaint. Only certain individuals can file a Complaint. This is referred to as having “Standing”. The following individuals have Standing:
- A parent of the child
- A person who stands in loco parentis to the child
- A grandparent of the child who is not in loco parentis to the child. A grandparent must also meet specific legal criteria in order to have Standing.
- A great-grandparent (in certain situations)
The law does not allow any presumption that custody should be awarded to a particular parent. However, the law does presume that custody should be awarded in favor of a parent over a non- parent unless the non-parent can rebut the presumption by clear and convincing evidence. If there is a custody action between two (2) non-parents, then there shall be no presumption.
CUSTODY FACTORS – BEST INTEREST OF THE CHILD
The court must determine custody of any kind based on the best interest of the child. The court will consider each and every one of the following sixteen (16) factors in determining the best interest of the child:
- Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
- The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
- The parental duties performed by each party on behalf of the child.
- The need for stability and continuity in the child’s education, family life and community life.
- The availability of extended family.
- The child’s relationships with siblings.
- The well-reasoned preference of the child, based on the child’s maturity and judgment.
- The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
- Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
- Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
- The proximity of the residences of the parties.
- Each party’s availability to care for the child or ability to make appropriate child care arrangements.
- The level of conflict between the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
- The history of drug or alcohol abuse of a party or member of a party’s household.
- The mental or physical condition of a party or member of a party’s household.
- Any other relevant factor.
For grandparents and great-grandparents, there are other factors that are considered such as the amount of personal contact with the child, whether the award would interfere with the parent-child relationship and whether the award is in the best interest of the child.
The court can also consider whether a party or a member of the party’s household has been convicted of or pleaded guilty or pleaded no contest to certain offenses. These offenses include crimes involving children, crimes involving sex or assault, and other serious crimes.
In a contested custody proceeding, the court may require the parties to submit parenting plans for the care and custody of the child to aid the court in resolving the dispute. The parenting plan shall consist of the schedule for personal care and control of the child; educational and religious involvement, if any; health care of the child; child care arrangements; transportation arrangements; and any other matter specified by the court.
Relocation is defined as a change in the residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights.
Whenever a party who has custody rights wants to relocate, there are rules that must be followed. No relocation can occur unless the other party with custody rights consents to the proposed relocation or the court approves the relocation.
Generally, the process for a proposed relocation involves the relocating party providing notice to the other party. The other party can then object to the proposed relocation. A hearing is scheduled for the court to consider the matter. Factors that a court shall consider are:
- The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child’s life.
- The age, developmental stage, needs of the child, the likely impact the relocation will have on the child’s physical, educational and emotional development, and taking into consideration any special needs of the child.
- The feasibility of preserving the relationship between the non-relocating party and the child through suitable custody arrangements, and considering the logistics and financial circumstances of the parties.
- The child’s preference, taking into consideration the age and maturity of the child.
- Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child with the other party.
- Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
- Whether the relocation will enhance the general quality of life for the child, including but not limited to, financial or emotional benefit or educational opportunity.
- The reasons and motivation of each party for seeking or opposing the relocation.
- The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.
- Any other factor affecting the best interest of the child.
A party who fails to give proper, reasonable notice of the proposed relocation to the other party may result in an order directing the return of the child to the non-relocating party, an order requiring the relocating party to pay the other party’s counsel fees, an order for contempt and possible sanctions, and it will certainly be a factor in the courts decision whether to accept the relocation request.
CHILD CUSTODY LAWYERS – THE MARTIN LAW FIRM
A good child custody lawyer will encourage their client to try to reach an amicable resolution with the other party. If an amicable resolution is reached, then there should be a written custody agreement that includes a custody schedule, pick-up and drop off times, vacations, holidays, birthdays, etc. A negotiated settlement of custody disputes is always less expensive, quicker and less stressful than fighting these matters in court.
In many instances, an amicable resolution is not possible given the attitudes, circumstances or unique challenges of the child or the parties involved. The importance of retaining counsel cannot be overstated.
Individuals seeking custody should always try to set aside any frustrations or anger towards the other party so that rational decisions can be made for the best interests of the child. When individuals lose sight of what is in the best interest of their child, the parties end up spending a lot of time and money fighting in court. Sometimes this is inevitable and necessary. However, when fighting can be avoided, it should be, because in the end, the children are often the ones who suffer the most.
Contact us today at 215-687-4053 to speak with a child custody lawyer about your case.