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The question of "Who gets custody of the kids?"
is one of the most difficult and often the most emotionally draining both for
parents and their children, when spouses divorce. Custody and visitation are the
legal terms in court ordered determinations of which parent the child lives with
and the conditions for the child to visit the other parent. Custody and
visitation are never considered to be final. In Pennsylvania, the law does not
favor either the mother or father. Rather, they look to the relationship of each
parent with the child. While grandparents and others may seek custody, there is
a presumption in favor of the natural parents. This section is designed to give
you a general knowledge of the issues involved in determining the parties
custody and visitation rights.
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When should
you have an attorney?
In the event that you have a highly volatile, hostile
or contested custody issue you should seek out a lawyer to represent you.
Additionally, if the other parent is using the services of an attorney, it is
advisable that you also have an attorney. The Court of Special Appeals has held
that representing yourself is not a good enough excuse for not answering a
motion by an attorney of the opposing party.
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Jurisdiction
Jurisdiction is the imaginary fence that separates the
subjects one court hears from another. There are two types of jurisdiction:
personal and subject matter. The court must have both types of jurisdiction to
hear a case. Personal jurisdiction, the power to require a person to appear in
court, is discussed in the
Service of Process section of this Web site. The Circuit Court is the court
in Pennsylvania with jurisdiction to hear matters of Custody and Visitation. To
have jurisdiction over your specific custody or visitation case the court will
require one of the following:
- Pennsylvania is the home state of the child
(lives in state, goes to school in state) and the parent has sufficient
contact with the state (works, votes, lives, pays taxes in Pennsylvania).
- Pennsylvania was the child's home state within
the last six months and the parent filing for custody continues to live in
Pennsylvania and the child is absent from the state because another person
took them out of Pennsylvania claiming custody.
- The child and at least one of the parents have
significant connection with Pennsylvania (live, work, go to school here) and
in Pennsylvania there are more records and witnesses to give evidence of the
child's present or future care, protection, training and personal
relationships.
- The child is physically present in
Pennsylvania and was abandoned or emergency protection is necessary (the child
was threatened or subjected to abuse or neglect).
- No other state would have jurisdiction based
on 1,2,3, or 4 above.
- Another state says Pennsylvania has
jurisdiction.
- Child was removed from Pennsylvania and the
Uniform Child Custody Jurisdiction Act does not apply and no other state has
jurisdiction, then Pennsylvania will have jurisdiction if:
-
- Pennsylvania was where the married couple
lived, paid taxes, voted, etc., but the parents are now currently separated
or divorced or Pennsylvania was where the marriage contract was last
performed.
- One parent is a resident of Pennsylvania and
was a resident when the child was removed.
- Court has personal jurisdiction over the
parent who has removed the child.
The Uniform Child Custody Jurisdiction Act (UCCJA)
has been adopted by Pennsylvania, as well as the other 49 states. This act gives
jurisdiction for custody cases to the location that is most closely associated
with the child. Within Pennsylvania, the Circuit Court has jurisdiction to hear
child custody cases. That court has the power to override any agreement if they
believe the agreement is not in the best interest of the child.
If you do not understand what you have just
read or are not sure if the court will have jurisdiction to hear your case, you
should consult an attorney.
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Unmarried Cohabitants
If the parents are unmarried, the child is
the child of his/her mother. In order for the father to assert rights to the
child (including rights to custody or visitation), paternity must be admitted or
established in court. Paternity can be established by: judicial determination of
paternity; father's acknowledgment of paternity in writing; father's open and
notorious recognition of the child as his own; or by marrying the mother and
then acknowledging himself as the father, either in writing or orally. In order
for a father to bring suit to establish paternity by judicial determination, he
should file an action for "filiation"; but, this is not required to seek custody
if any of the other three methods has established paternity. Once paternity is
established, neither party will be given a preference based solely on the
gender. The Dom Rel forms do not cover paternity actions. If you are seeking to
establish paternity, consult an attorney.
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What if we agree about
custody and visitation?
Custody
Agreements
If you and the other parent have already come to
a fair agreement on the custody and visitation issue, you may want to write your
own stipulation and consent order. A stipulation is a statement of the
settlement that you have reached. It is accompanied by a consent order for the
judge to give the agreement the power of a court decision.
If you choose to go this route, you and the other
parent should be as specific as you can to avoid future conflicts. Who has legal
custody? Which holiday does the child spend with you? What time and where may
the other parent pick the child up? What time should the child be returned home?
What is the procedure to follow if either of you are running late and won't be
there on time? How much notice should you be given if they are planning a
vacation? How far away may the other spouse move? What you might think you can
figure out as you go along could actually blow up into a full scale war later.
The Stipulations should state everything that you have agreed upon. You should
not rely on any oral promises. If you both agreed on it, write it down (no
matter how trivial it may seem now). Additionally, you should be sure to read
this full section before proceeding in order to avoid having your stipulation
and consent order ignored by the court or giving away rights of which you were
unaware.
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What if we disagree
about custody and visitation?
Mediation
If you and your spouse are having trouble reaching an
agreement, you should consider mediation. You may have heard the term mediator
used in news reports about labor negotiations or the 1994 baseball strike. A
mediator specializes in helping people reach an agreement that is fair and will
last. The sessions are confidential and are not reported to the court. A
mediator's role may be limited to custody or may also cover other issues such as
marital property if you choose. Mediation is not an option that is appropriate
in cases where there is a genuine issue of physical or sexual abuse of the child
or one of the parties. It is also important to get a legal advisor for this
process. The mediator's role is not to take sides, but to bring the two sides
together. Additionally, if the mediator is not an attorney, he/she may be
unaware of some specific legal issues.
Court
Ordered Mediation
The court has the power to order mediation
whether the custody issue is brought up by an initial proceeding, a request for
modification or a contempt action. You should be aware, however, that if
mediation is ordered by the court at the initial proceeding it will most likely
prolong the legal process by stopping all other actions until the mediation is
complete. The court will initially order two sessions, but for good cause
accompanied by the mediator's recommendation the court may order two additional
sessions. Additionally, you may decide to continue the mediation without the
court ordering it. The court also has the power to order whether one or both
parties pay for the mediation.
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What does the word "custody" mean? legal v. physical? joint v. sole? shared?
Types of Custody
Temporary Custody
De facto (means in fact) custody refers to who
actually has custody of the child at this time. This does not carry the weight
of the court behind it. In order to formalize custody before you begin
litigation, one should file a motion for Pendente Lite (meaning pending
litigation) or temporary custody. Temporary custody is subject to review based
on the "best interests" of the child standard, to be discussed below. It is not
an "initial" award of custody because it is understood to be temporary pending a
full hearing. In order to be awarded temporary custody you must file a request
for hearing and an order for temporary custody and support (Form Dom. Rel. 51)
along with your Complaint for Custody or Divorce.
Sole Custody
Custody is made up of: legal custody and physical
custody. A person with legal custody has the right to make long range plans and
decisions for the education, religious training, discipline, non-emergency
medical care and other matters of major significance concerning the child's
welfare. A person with physical custody has the child living primarily with them
and they have the right to make decisions as to the child's everyday needs. Sole
Custody is when both legal and physical custody are given to one parent. The
child has only one primary residence.
Split Custody
Split custody is easiest to describe in a
situation where there are two children and each parent obtains full physical
custody over one child. Some of the considerations that may bring about this
result are age of the children and child preference.
Joint Custody
Joint Custody is actually broken down into three
categories. Joint Legal custody is where the parents share care and control of
the upbringing of the child, but the child has only one primary residence. In
Shared Physical Custody the child has two residences, spending at least 35% of
their time with the other parent. Additionally, you can make your own special
joint custody agreement that is any combination of Shared Physical and Joint
Legal Custody. One example of this is when there is one residence for the child
and the parents live with the child there on a rotating basis.
In order to assure the best interests of
the child the court looks very closely at Joint Custody agreements. The most
important factor to Joint Legal Custody that is also very relevant to Shared
Physical Custody is the ability of the parents to talk about and reach joint
decisions that affect the child's welfare. If you are constantly fighting over
what religion or what school, the court may strike down your agreement. Other
factors include: willingness to share custody; fitness; child's relationships
with parents; child's preference; ability to stabilize child's school and social
life; closeness to parent's homes (primarily a factor during the school year) ;
employment considerations (e.g. long hours, extensive travel, etc.); age and
number of children; financial status; benefit to parent. Additionally, the
sincerity of the parties involved is important. The court will want to make sure
that joint custody isn't being traded for concessions on other points. Another
consideration is whether the grant of joint custody will affect any assistance
programs. Currently, AFDC and Medical Assistance are affected based on the award
of Joint Legal Custody. Be sure to check with your contact at any social service
agencies before entering into an agreement or you may be jeopardizing your
benefits. This list is not meant to be exhaustive and the court will hear
anything that they believe to be relevant.
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The
Best Interests of the Child Standard
Regardless of any agreement you may have reached,
the court's standard for initially awarding custody is to determine the best
interests of the child. In order to do this they look at several factors. It is
important to remember, though, that no one factor carries any more weight than
any other. The following list is some of the factors, but not all, that courts
will consider.
Primary Care
Giver
Who is the person who takes care of the child?
Who feeds the child, shops for their clothes, gets them up for school, bathes
them, and arranges day care? Who does the child turn to when they get hurt?
Fitness
What are the psychological and physical
capacities of the parties seeking custody? The court may also consider evidence
of abuse by a party against the other parent, the party's spouse, or any child
residing within the party's household (including another child).
Character
and Reputation
Agreements
Is there a custody stipulation already drawn up?
Ability to Maintain Family
Relationships
Who will be able to keep the child's family most
intact? Who is going to let the child speak with their ex-mother-in-law, for
example? Who will not penalize the child for any adverse action on the part of
the other parent.
Child Preference
The decision of the court may be considered
reversible error if they won't hear the child's preference. However, the court
has the discretion to interview the child out of the parents' presence. A child
as young as 5 or 6 years of age may be heard. Though it is rare the court will
hear from a child under 7 years, the child's ability to tell the truth from
fiction and maturity will be the guidelines for whether a child may be heard. A
child of 10 or 12 years of age is certainly entitled to have their opinions
heard and given weight in legal proceedings about custody. Additionally, the
court has the power to appoint an attorney for the child in contested cases.
Material Opportunity
Which parent has the financial resources to give
the child more things?
Age,
Health and Gender of Child
Residences of
Parents and Opportunity for Visitation
How close do the parents live to each other? How
close do they live to members of the child's extended family? Which parent lives
closest to the child's school and social circle?
Any Prior Abandonment
or Surrender of Custody
Is there a history of one parent walking out and
leaving the other parent to cope with the child and the home? Which parent left
when you last broke up?
Religious Views
These will bear on the court's decision only if
shown to affect the physical or emotional well being of the child.
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Visitation
Visitation is the part of the court order that
defines the conditions for the non-custodial parent to have contact with the
child. Visitation is limited by legal custody being vested in the other parent.
This means that your visitation does not give you the authority to conflict with
the long range decisions and policies of the parent with legal custody. For
example, if the parent with legal custody has decided to raise the child in the
Jewish tradition, the parent with visitation rights may not take the child to be
baptized in a Catholic church.
There are no reported
cases of a court honoring complete denial of visitation for a parent.
Even in cases of abuse, the only reported cases have upheld supervised
visitation. Supervised visitation is when the parent is only allowed to visit
with the child in the company of another person. This person is usually a friend
or relative that the two parents agree will be allowed to act as a chaperon.
Supervised visitation often calls for a restriction of visitation to a
particular location and time.
Who can be awarded visitation? Obviously a
biological parent can be awarded visitation. Additionally, grandparents (even
when the parents weren't married or are not currently divorced) and step-parents
may be awarded visitation rights. While there are no reported cases of brothers
or sisters being given visitation, a strong argument could be made that it would
be in the best interest of the child.
When can visitation be denied? The court
has the power to deny visitation. Normally the court will only stop visitation
for a certain time or until a certain task is performed. For example, the court
has previously stayed visitation until the parent met their financial
obligation. If your spouse should deny you court ordered visitation, you first
file for a modification of visitation for a more definite schedule, before
filing a contempt action. (Dom. Rel.3). Many parents
feel they have the right to stop paying child support, but they are wrong.
Withholding of child support will only get you in trouble and possibly
arrested.
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When the Custody Order Agreement is Violated
People go into courthouses everyday telling clerks
that the parent has not returned the child at the scheduled time following
visitation and they don't know what to do. When a custody order is violated the
law requires the custodial parent/lawful custodian to first demand the return of
the child.
If the child is not returned within 48 hours, the
visitation parent may have committed one of the following crimes:
If the abducting parent remained within the
state:
misdemeanor: can be fined $25 or imprisoned for
up to 30 days
If the abducting parent crosses the state line
:
felony: can be fined $250 -$1000 and/or
imprisoned 30 days to 1 year
If the child has actually been stolen by the
other parent you should report this to your local police department immediately.
The FBI can be called in to find the fugitive parent and the child as well.
The only exception to this rule is when the child
is in clear and present danger (the victim of abuse or abandonment) requiring
the noncustodial parent to save them. The noncustodial parent must be ready to
prove this clear and present danger and they are required by Pennsylvania law to
file a petition within 96 hours. In that event, both parents will need a
lawyer.
Once an incident like this has happened, you may want to consider modifying the
custody order.
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Modification of
Custody
When a parent seeks to have the custody order
changed, it is his/her burden to show the court why it should be changed. The
court follows the old notion of, "if it isn't broke don't fix it." This is based
on the idea that stability is best for the child unless you can show that there
is something in the environment that will adversely impact on the well being of
the child. This is not as simple as it may seem. The factor(s) in the
environment have to not just make your home as good as the custodial parents,
but better. To do this you must show that there has been a substantial change in
circumstances and that it is in the child's best interests to make the change
you are proposing. If the two homes are thought to be equal, then custody will
stay as it is. Remember, a temporary or pendente lite custody order is not a
final order. You would not be required to show a substantial change in
circumstances to have custody changed in the "permanent" custody order.
A child at least 16 years of age can seek a
change in custody on his/her own. However, it will be the minor's burden to
prove that a change of custody would be in his/her best interests at this time.
The court that made the original custody
and visitation order retains jurisdiction to decide modification unless the
parties and child no longer have close ties to the court and the court
surrenders its jurisdiction. However, the court with original jurisdiction may
refuse to hear the custody case if a child has been wrongfully taken from
another state or taken without the consent of the person entitled to custody.
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Taxes
Usually the parent with
custody can claim the exemption for the child. However, the parents may agree to
claim the child exemption on alternate years. In that case, the parent with
custody needs to sign IRS Form 8322, Release of Claim to Exemption. Whether or
not you are taking the exemption for the child, you may still file as "head of
household."
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