MONTGOMERY COUNTY, PENNSYLVANIA CHILD CUSTODY LAWS
In 2011, the Pennsylvania legislature passed Act 112 of 2010. This legislation significantly changed the child custody law in Pennsylvania. Parents who find themselves in a fight for custody of a child should know the basics of the Pennsylvania child custody law and how the law is applied in Montgomery County, Pennsylvania.
PHYSICAL CUSTODY AND LEGAL CUSTODY
Child custody consists of physical custody and legal custody. Physical custody is the actual possession and control of a minor child. Generally, the court will determine whether a parent should have primary physical custody, partial physical custody, joint physical custody, or visitation. Primary physical custody means that one party gets to spend most of the custodial time with a minor child. Shared or joint physical custody generally means that both parents will share equally in the overnight periods of custody. Partial physical custody is the right of one parent to have possession of the child that may include overnights, but the other parent is exercising primary physical custody. Visitation refers to designated times and conditions under which the noncustodial parent sees the child apart from the custodial parent.
Legal custody is the right to make important decisions that affect the minor child. These decisions include medical care, education, dental care, and religious instruction.
Pennsylvania courts often grant shared legal custody to parents unless the circumstances prevent the parents from being able to cooperate with each other regarding these important decisions. Physical custody, on the other hand, is often subject to legal scrutiny and litigation.
DETERMINING PHYSICAL CUSTODY
All child custody cases are unique, and attention must be given to specific factors established in the child custody law when determining how a court will most likely determine physical custody. Generally, the paramount concern is the best interests of the child. Courts often face the difficult decision of rendering primary physical custody to one parent or ordering a shared physical custody arrangement. The “best interests of the child” standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child. Of course, this can be a subjective opinion and people can have different views on how this standard is to be applied. For example, should the courts consider that a parent seeking primary custody has a greater income and can give the child access to better schools and medical care? Should the courts consider religion, race and ancestry? Should the courts only look to maintain the intimacy and security that the child has with one parent that may have been a closer caregiver to the child at a young age? The Pennsylvania legislature established factors in the child custody law to help parents, conciliators and Judges evaluate a physical custody arrangement that is in the best interest of the child. The factors can be summarized as follows:
- which parent is likely to encourage frequent contact between the child and the other parent;
- any instances of abuse and any continued risk of harm to the child;
- the parental duties performed by each parent on behalf of the child;
- the need for stability in the child’s education, family life and community life;
- the availability of extended family;
- the child’s sibling relationships;
- the preference of the child, based on the child’s maturity and judgment;
- any attempts of a parent to turn the child against the other parent;
- which parent is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs;
- which parent 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 parents;
- each party’s availability to care for the child;
- the ability of the parents to cooperate with one another;
- the history of drug or alcohol abuse of a parent;
- the mental and physical condition of a parent; and
- any other relevant factor.
Prior to the 2011 revisions to the child custody law, Courts historically granted primary physical custody of the child to the mother and partial custody or visitation to the father, unless the circumstances were obvious enough to require a different arrangement. Courts would rarely interrupt this pattern unless the mother was deemed unfit or when the parents proved that they could cooperate with one another in the parenting of the child.
After the custody law changed in 2011, Judges and conciliators made decisions with less bias and presumptions against the father. Courts began to apply the “best interest of the child” factors with an eye towards an equal involvement by both parents when practical.
CHILD CUSTODY PROCESS IN MONTGOMERY COUNTY, PA
Filing the Child Custody Complaint. In Montgomery County, Pennsylvania, a parent who wants to establish physical and legal custody must file a Custody Complaint. The Complaint must identify the parents, the child or children and the type of custody sought. The Complaint is filed with the Montgomery County Office of the Prothonotary and then served on the other parent.
- Filing the Child Custody Complaint. In Montgomery County, Pennsylvania, a parent who wants to establish physical and legal custody must file a Custody Complaint. The Complaint must identify the parents, the child or children and the type of custody sought. The Complaint is filed with the Montgomery County Office of the Prothonotary and then served on the other parent.
- Mediation Orientation. When a Custody Complaint is filed, the Prothonotary’s Office will assign a Mediator to the case. Mediation Orientation is generally mandatory. The parties must contact the Mediator within seven (7) days of filing the Complaint. The Mediation Orientation session must be conducted within twenty (20) days of the filing date. Attorneys for the parties are not permitted to attend and the Orientation is kept confidential. The Mediator must have a post-graduate degree in law or a mental health field such as psychiatry, psychology, counseling or family therapy. The Mediation Orientation lasts up to two (2) hours. The Mediator will report the parties’ attendance and compliance via the filing of a Certificate of Compliance. The cost for mediation must be equally divided between the parties. The objective of Mediation Orientation is to establish an environment of fairness, establish a positive discussion with the parents, and provide a reality for both parents for the future co-parenting of the child. The Mediator will try to help the parents resolve the custody matter, educate the parents as to the custody process, and screen for abuse. If the Mediator can help facilitate an agreement, then the parents can sign a Memorandum of Agreement/Understanding.
- Educational Seminar. The Montgomery County, PA local rules of court require parents to attend an approved education seminar on the general responsibilities of separated and divorced parents. The seminar is taught by licensed mental health professionals who have experience working with children and families. The seminar objective is to educate parents on the needs of the children and help the parents focus on those needs.
- Custody Conciliation Conference. When an agreement cannot be reached with the Mediator and the parents have completed the education seminar, the case will proceed to a Conciliation Conference. The parents will receive notice in the mail of the date of the Conciliation Conference. The conciliator is an attorney appointed by the Court to resolve the custody dispute. In 2019, custody conciliators were permitted to issue interim custody orders for cases that do not have an existing order. This was a significant change because children and parents can now receive immediate certainty about a child custody schedule. The parents also have the benefit of receiving insight into the conciliator’s thoughts and analysis of the situation that led to the interim order. With this increased role and function of the custody conciliator, it is now more important than ever for parents to be represented by an attorney at this stage. If the case is resolved at the Conciliation Conference, an Agreed Order will be submitted to the Court for the Judge to sign.
- Short List Hearing. If the case is still not resolved after the Custody Conciliation, then the parents will receive a notice of the scheduling of a short list hearing before a Judge. Judges will emphasize the need for parties and their attorneys to attend an in-person hearing to discuss settlement and to narrow the issues for trial. Attorneys should be prepared to identify witnesses who will be called for trial, whether there is a need for a home study or other expert intervention, and other unique matters. After discussion and careful consideration of the matters before the Court, the Judge will schedule a protracted custody hearing.
- Custody Hearing. When a case goes to a child custody hearing, the case will take place in a courtroom and the Judge will serve as the trier of fact. Ultimately, the Judge will hear testimony and consider evidence to render a decision based on application of the evidence to each of the child custody factors. Experienced child custody lawyers will prepare and present a case on the parent’s behalf. Testimony from the child’s parents, other witnesses, family members, experts (counselors, therapists, behavioral specialists, etc.) and possibly the child, will almost certainly be presented in any custody trial. Documentation can also be key evidence. Experienced child custody lawyers will know the questions to ask on direct examination and how to effectively cross examine the other parent and other witnesses.
CHILD CUSTODY AGREEMENTS
Disputes for child custody can be resolved at any stage of the process by agreement. In addition to the factors for determining custody as described above, there are practical considerations for determining custody. These practical considerations include each parent’s work schedule, whether the children are in school, where the parents live in relation to each other, and so on. Regardless if a parent has primary, joint, or partial physical custody, both parents should agree on a schedule of each of the parent’s custodial time. The schedule will specify the days of the week and the times that the parents have custodial time, including overnights.
While most child custody agreements revolve around the day-to-day schedule of the children, it is important to have a separate schedule for holidays, vacations, and special events. While parents typically agree to alternate annual holiday schedules every year, each family is different, and parents can structure their holiday schedules as they see fit. Similarly, these agreements should state whether parents will be allowed to take children on extended vacations, and if so, for how many days each year and whether it must be done during their scheduled custody time.
By having a written physical custody agreement, parents can establish physical custody rights which they can rely upon and which they can enforce in Court, if necessary. An established custody schedule will also add stability to the child’s development and his or her relationship with both parents. If a modification of the written agreement is needed or wanted, then the parents can re-negotiate a modification to the written agreement. Or, if the parents are amicable, they can modify the agreement as necessary as situations arise without necessarily having to modify the written agreement.
HIRING A MONTGOMERY COUNTY, PA CHILD CUSTODY LAWYER
A parent involved in a child custody dispute in Montgomery County, Pennsylvania should consider hiring a child custody lawyer who has experience with the Montgomery County< PA court system. A child custody lawyer can assist the parent with guidance and advice, drafting the Custody Complaint, preparing the case for trial, and presenting the witnesses and evidence to the Court on the parent’s behalf.
Fighting for custodial rights of a child is perhaps the most important situation that a parent will ever be involved in. Nothing can replace preparation and diligence, except being a good parent. Parents should always be encouraged to set their differences with the other parent when decisions are made concerning the child. A parent should never take their custody time for granted and should always make the most of it.
If you are involved in a child custody dispute, please call the Martin Law Firm today at 215-646-3980 and speak with a child custody lawyer.