Note: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.
Child custody is an issue of often overwhelming emotional overtone. An understanding of the tests applied by the Court in determining custody and the procedures utilized can help alleviate the anxiety inextricably attached to this issue and assist you in making sound decisions.
What is the difference between custody, partial custody and visitation?
There are distinctions between these three terms. Custody has two sub-parts which are "physical custody" and "legal custody". Physical custody means the actual physical possession and control of a child. Legal custody means the legal right to make major decisions affecting the best interests of a child including, but not limited to, medical, religious and educational decisions.
Partial custody is a right given to a person to take possession of a child away from the custodial parent for a period of time.
Visitation is the right to visit a child. Visitation does not include the right to remove a child from the custodian's control.
What does shared custody mean?
Shared custody means shared legal or shared physical custody, or both, of a child in a way that gives the child frequent and ongoing contact with both parties.
How old can a child be and still be the subject of a custody order?
Generally, until the child's eighteenth birthday.
My spouse and I still live in the same home. Can I get a custody order granting me custody of the child(ren)?
Absent extraordinary circumstances, no.
How do I start a legal action for custody?
A complaint for custody, partial custody or visitation is filed with the Court or a specific count requesting the relief may be included in a divorce complaint.
Where is a custody complaint filed?
A custody complaint may be filed in any one of several counties depending upon the facts. The following are all possibilities:
• The home county of the child, which is basically the county where the child lived with the parents within the last six months before the complaint was filed;
• A county which may be the best county in which to bring the action because the child and parent(s) have a significant connection with that county;
• A county in which the child is present when the child has been abandoned or an emergency exists because of threats or mistreatment; or
• Other counties under special circumstances.
You should consult your attorney as to the appropriate county in which to file your action.
Do I have to file an answer to a custody complaint?
No. There is no default judgment in an custody case.
Is there any difference in the procedure used to resolve custody claims as opposed to other domestic claims?
Many counties use a system of conciliations (settlement conferences) and hearings. In partial custody and visitation matters, if agreement is not reached in the course of settlement conferences, findings of fact will be made based upon evidence presented to the Court or a specifically appointed hearing officer and a judicial determination eventually entered.
Allegheny County has adopted a procedure specifically designed to attempt to help parties resolve custody issues without court intervention whenever possible. This county has adopted a mandatory counseling and mediation program in which the parties and child(ren) must participate before a custody related issue may be presented to the Court. The parties pay separate fees to participate in this program.
Under this program, when a legal paper is filed with the Court that involves custody issues, the parties will be required to attend a custody education program. Children involved who are between the ages of 6 and 17 will be required to participate in an intermediate group program for children.
After the parents have attended the education program, they will then be required to meet with a mediator, unless specifically exempted by the Court for reasons such as previous domestic violence, for the purpose of attempting to work out an agreement on the issues which the lawyers for the parties can then prepare in the form of a written order. The parties' lawyers do not participate in the mediation.
The parties only present the dispute to the Court if the mediation process fails or one of the parties decides to reject a tentative agreement reached with the mediator and a subsequent conciliation with a court appointed conciliator, the parties and counsel also is not successful. In that case, the traditional method of court conciliation and hearing is then utilized.
What standard does a court use in determining who should have custody of the child(ren)?
The test applied by the Court is very simple to state yet is very broad in its application. The standard is simply what is in the best interest of the child. This is determined by considering all the relevant circumstances of your case which have an effect on your child's physical, intellectual, mental and spiritual well being.
In a custody dispute between a parent and a third party (non-parent), does the parent have an advantage?
Third parties who are not grandparents generally have no right to initiate custody proceedings unless the third party can demonstrate that they attained in loco parentis status which means the third party has assumed the usual obligations of a parent without having adopted the child. If a third party does have standing, the balance is tipped in favor of the natural parent and the third party has a difficult burden to sustain.
Does the mother of a child born out of wedlock have a greater right to custody than the father?
No. The best interest of the child controls.
Is our written agreement concerning the custody of our child(ren) binding on the Court?
No. Contracts concerning the custody of minor children can always be put aside if to do so would be in the best interest of the child.
In years past, my partner's conduct has certainly been less than exemplary. May I introduce evidence of this past bad conduct to prove unfitness to be a custodial parent?
Generally, no. Custody decisions are made on the basis of present conditions rather than on consideration of past unfitness. Past conduct is relevant only where it has an ongoing negative effect on a child's welfare.
We have now been separated for many months, and our child(ren) has/have resided with me since that time. Does that fact weigh in my favor in our custody dispute?
Usually, yes. Our courts recognize that continuity and stability are important elements in a child's emotional development and are elements that must be recognized in a custody dispute. Continuous residence of child(ren) with one parent may indeed be controlling in a custody dispute.
Our children are quite young. Will the court automatically grant custody to the mother?
No. Pennsylvania no longer recognizes a "tender years doctrine".
This doctrine presumed that children of tender years would be better off in the custody of the mother absent compelling reasons to the contrary. This doctrine was found to be in conflict with the Equal Rights Amendment to the Pennsylvania Constitution and is no longer applied. The test, as always, is what is in the best interest of the child involved considering all the circumstances.
I work and must necessarily be away from home for several hours each day. The other parent does not work and is able to be with the child(ren) all day. Will this deprive me of the opportunity to be awarded custody of the child(ren)?
No. The fact that a parent must work is not a factor that may be used to deprive that parent of custody when adequate arrangements have been made for the child's care in the parent's absence.
My former spouse has remarried and I have not. Can my spouse's remarriage be a factor in his/her favor in our custody case?
No. There is no presumption which favors a two parent family over that of a single parent family in a custody proceeding.
My child has expressed a preference to live with me. Will this factor be given weight by the Court in a custody proceeding?
The expressed preference of a child is one factor in determining custody, but the weight to be accorded such preference will vary according to the age, intelligence, and maturity of the child as well as the soundness of the reasons given for the preference.
We have more than one child. What is the possibility that the court may award custody of one or more children to each of us?
The possibility is limited. There is a strong policy in our law that in the absence of compelling reasons to the contrary, siblings should be raised together whenever possible.
How important are religious considerations in a custody dispute?
While religious instruction is certainly an important matter and will be given consideration in a child custody matter, it is not determinative of the issue.
My spouse has a good job and an income that is much greater than mine. Will this give my spouse an advantage in a custody dispute?
No. The relative wealth of the parties is irrelevant unless one of the parents is so financially distressed as to be unable to provide adequately for a child.
My former spouse is now in a non-marital relationship with another person. Will this relationship prevent my former spouse from obtaining custody of our child?
Not necessarily. The only relevance to a person's non-marital relationship is the effect of that relationship on the child. If the evidence shows that the parent's conduct does not adversely affect the child, then no further consideration will be given to the fact.
I would prefer that the other parent of my child(ren) have no partial custody or visitation with my child(ren). What are the chances?
Very remote. The visitation and/or partial custody rights of a parent are carefully protected. A parent is rarely denied such right and denial is imposed only in extreme cases such as when a parent suffers from severe mental or moral deficiencies that constitute a grave threat to a child.
Can restrictions be placed on the other parent's partial custody or visitation rights?
Yes. In appropriate circumstances, the Court may impose restrictions on a person's rights of partial custody or visitation. This will not be imposed routinely and is usually done where particular environments to which the person may expose the child present a serious potential emotional or physical threat to the well being of the child. A court may require under such circumstances that the parent's partial custody or visitation be exercised in a supervised environment.
Once a custody order has been entered, can it be modified later?
Yes. Custody orders are modifiable when it can be demonstrated that to do so would be in the best interest of the child. This is so regardless of whether or not there has been a substantial change in the circumstances of either the child or the parties since the entry of the previous order.
Will my child have to testify in our custody case?
If your child is old enough and mature enough to understand the meaning and consequences of taking an oath to tell the truth, your child will likely participate in the trial process. But his/her testimony will generally be given in the judge's chambers in a much more relaxed atmosphere than that of the courtroom. The judge generally asks the child a series of questions relevant to the issue. Each party is absolutely entitled to have their attorney present, and each attorney is also given the opportunity to ask questions. A court reporter is present to record all the questions and answers.
Can my attorney place into evidence written reports from doctors, psychologists, home evaluators, teachers or other experts?
No. In a contested child custody case, such reports are not admissible into evidence because the reports are not subject to cross-examination. The author of the report must be produced at trial, sworn to tell the truth, examined as a witness and be subject to cross-examination.
Can the Court appoint experts to participate in our custody case?
Yes. In custody cases, the Court may appoint psychologists and/or evaluators. A home evaluator will come to your home. Stepparents, significant others, other family members and other alternative care givers should all be present if at all possible. Information about the background of these persons, the present arrangements you have for your child and future plans will be discussed.
If the court utilizes a psychologist, the psychologist will usually meet with each parent and the child(ren). The psychologist may also ask to meet with any significant others.
Who will preside over our case?
In full custody cases, a judge presides over the case from beginning to end. In cases of partial custody or visitation, you will usually appear first before a court officer who attempts to help the parties reach a consent arrangement. If the parties cannot consent to any order, they will be referred to a hearing officer, who is a lawyer employed by the Court. After testimony, the hearing officer will make a written recommendation to which either party may file objections within ten (10) days thereafter.
How can we get a shared custody order?
You can obtain shared custody if:
• The parties agree to it;
• One or both parents apply to the Court for it; or
• The Court decides on its own that such an order would be in the best interest of the child.
I think it would be a good idea if the other parent could be made to attend counseling. Can that be arranged?
It is possible to request the Court to order parents to attend counseling sessions. The Court, by statute, has the power to compel the parties to attend. (See the discussion on Allegheny County's mandatory counseling and mediation program.)
The other parent of my child(ren) has custody and now he/she wants to move to another state. Does he/she have the right to do that?
In our mobile society, relocation is a very common concern.
Once a Custody Order has been entered, if either party intends to move from the state, either party may petition for a court review of the existing order. A hearing must be held before the move. As always, the best interest of the child(ren) will govern the decision of the Court. Consideration will be given to the following areas:
1. Will the move significantly improve the quality of life for the custodial parent's family?
2. Is the move motivated by a desire to frustrate existing partial custody or visitation?
3. Will a proposed alternative partial custody or visitation schedule foster an ongoing relationship between the child(ren) and the non-custodial parent?
The other parent of our child(ren) has custody. Am I entitled to the school, medical and religious records of my child(ren)?
Yes. Unless a court orders otherwise, both parents are to be permitted access to this information.
I am a grandparent. What rights do I have to see my grandchild(ren)?
You may have enforceable rights in three separate circumstances:
1. If the parents of the child(ren) have formally commenced a divorce action, or if they have been separated for more than six months, a grandparent has the right to apply for partial custody or visitation with a grandchild which the Court will grant if it is in the best interest of the child and will not interfere with the parent-child relationship.
2. If your child is now deceased, you have the right to apply for partial custody or visitation with a grandchild which the Court will grant if it is in the best interest of the child and will not interfere with the parent-child relationship. In either situation, the Court will consider how much contact you previously had with your grandchild.
3. If your grandchild resided with you for twelve (12) months or more and then was removed from your home by the parents, you have the right to apply for partial custody or visitation rights which you will be granted if it is in the best interest of the child and will not interfere with the parent-child relationship.
Distinct from partial custody or visitation can a grandparent petition for the right to have primary physical or legal custody of a child?
Yes, under a set of very specific circumstances. All of the following must apply:
1. If it is not in the best interest of a child to be in the custody of a parent and it is in the best interest of the child to be in the custody of the grandparent;
2. The grandparent must have genuine care and concern for the child;
3. The grandparent's relationship with the grandchild must have begun with the consent of the parent or pursuant to a Court Order; and
4. The grandparent has assumed the responsibilities of a parent for twelve (12) months, or assumes the responsibility for a child the Court has found to be dependent, or assume the responsibility for a child who is at risk because of parental abuse, neglect, drug or alcohol abuse or mental illness.
Can I get the Pennsylvania courts to enforce our current custody order, which is an out-of-state order?
Yes.
The other parent always has an excuse as to why the children aren't available to be with me during my partial custody time. What can I do?
There will always be occasions when unavoidable conflicts arise in the schedules of the parties or the child(ren). Try to be reasonable. If there appears to be a regular pattern of defeating your partial custody time, start a logbook of the dates and the reasons given. If a clear pattern emerges, this may justify filing legal papers to start a review of the situation. In extreme cases, it may even result in a change of custody.
I think the other parent will simply ignore the custody order. If that happens, what will the Court do about it?
Willful disobedience of a Court Order can result in the offending party being held in contempt of court. Contempt in such cases may be punished by one or more of the following:
1. Imprisonment for up to six months;
2. A fine of up to $500.00; or
3. Probation for up to six months.
Additionally, repeated refusal to comply with a court's custody order can result in a transfer of custody of the child(ren) to the non-offending party.
Do you have any tips on how to conduct myself now that we are separated?
Glad you asked! Here are some time tested does and don'ts universally accepted by those experts who deal with custody issues:
DO
• Listen to your kids and talk to them
• Remember that kids do not belong in the middle of your dispute
• Maintain regular contact with your kids including phone contact
• Let the other side know well in advance if you cannot keep a scheduled contact with your child(ren)
• If you are the custodial parent, make sure the kids are ready to go on time for visits with the other parent and that you are home when they are scheduled to return
• Let your kids know that both parents love them and are there for them
DON'T
• Blame your kids for your domestic problems
• Use the children as messengers
• Use the children as spies to determine what the other parent is up to
• Argue with the other parent in front of the kids
• Disparage the other parent or his/her family in front of the kids
• Ask you children which parent they love best
• Attempt to make the child your confidante or ally
From representation in divorce matters with related economic claims to difficult child custody or support disputes, I offer legal advice directed to your specific situation and needs. Contact my office online or call 866-942-0074 to schedule a complimentary 30 minute consultation to discuss your concerns today. My office, located near the Allegheny Valley exit of the Pennsylvania Turnpike and the Harmarville exit of the Route 28 Expressway, provides a convenient environment in which to discuss your family law needs.
Eric C. Rome, Attorney at Law
Jeffrey Building, Suite 101
897 Route 910
Indianola, PA 15051
Phone: 412-455-5377
Toll Free: 866-942-0074
Fax: 412-767-0880
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