Great-Grandparent Custody

Great-grandparents are able to pursue partial custody just as grandparents are. Section 5325 of the Domestic Relations Statute indicates great-grandparents may petition for partial custody/visitation where one of the following conditions is met: (1) a parent of the child is deceased; (2) the parents of the child have been separated for at least six months; or (3) the child has lived with the great-grandparent(s) for at least 12 consecutive months and a petition is filed within six months after the child is removed from the home.

It is also possible for grandparents to request any form of custody under Section 5324. While great-grandparents are not specifically mentioned in this provision, they can still pursue custody if they stand in loco parentis to the child. In loco parentis status requires more than just a caretaker position. For example, in Argenio v. Felton, 703 A.2d 1042 (Pa. Super. 1997), the Superior Court denied in loco parentis status to a grandparent who daily cared for the child. The court based its conclusion on the fact that the grandmother “proved that she acted as no more than a care-taker, in effect, a baby-sitter for the child, albeit a frequent caretaker.” In loco parentis literally means in the place of the parent. In Peters v. Costello, 891A. 2d 705 (Pa. 2005), the Court explained “in loco parentis status embodies an assumption of parental status as well as an actual discharge of parental duties, and gives rise to a relation which is exactly the same as between parent and child.”

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What is a true shared custody arrangement?

When parents divorce with children, the children need a schedule when they will spend time with each parent.  Courts seem to be moving more towards a shared custody arrangement so that both parents can actively participate in the children’s lives.  A true 50/50 custody schedule is when both parents have equal overnights in a two week period.  This schedule can take many forms, from alternating weeks, to alternating every two weekdays with a long weekend, to three set nights with one parent each week and alternating one night every other week. There are many different ways to arrange it so that each parent has seven nights in a two week period.  As in any custody case, it is whatever is in the best interest of the children.  When there is a true 50/50 custody schedule, the children are able to attend school in either parent’s school district since there is no primary custodian, however, the parties have to decide or the court will decide which school district they will attend.  

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Drug & Alcohol Testing in Child Custody

Sometimes in child custody cases one of the parents struggles with an addiction either to drugs or to alcohol. When the parties are no longer together, the court must decide contact for each of the parents with their children. If there is a drug or alcohol addiction, it can impact the type of custody and amount of time a parent will be able to spend with their child. Oftentimes, the other parent will want those visits to be supervised. In order to establish that a parent has an addiction and in order to determine the severity of the addiction, it may be necessary to have the court order mandatory drug and alcohol testing. There are various types of testing that can be done to determine what type of drugs a parent may have been doing and each of the different types of tests have a window of accuracy. In a child custody case, it is always best to request a hair follicle test as this provides the longest history of drug usage for a parent. In addition to drug testing, if a parent has an alcohol addiction, there are tests that can measure the consistency in which a parent consumes excess alcohol. These tests are critical when a parent has an addiction as being under the influence of drugs or alcohol while caring for children can greatly put them at risk of physical harm due to neglect and/or abuse.

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Where do I file for Child Custody?

Jurisdiction for child custody is wherever the child has lived for the past six months. If, however, you already have a court order, the court may have retained jurisdiction of the custody order if one of the parties still lives in that jurisdiction. If no party has lived in any jurisdiction for at least six months, you must look at the state that has the closest ties to the child and see if that Court will exercise jurisdiction. The reason a court exercises jurisdiction where the child resides is because that state and county will have the best available information regarding the child, including education, living conditions, etc. all of which are relevant in determining custody of the child. Within a state, you should file in the county where the child resides.

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Changes to the Custody Order by Agreement

The purpose of a custody order is to provide both parties with a schedule on when they have their children and no longer live in the same home. This eliminates any confusion for everyone involved, including the parents, children, teachers, coaches and others who may need to know who is supposed to pick up a child and when. This is why schools require that a custody order be on file with the school. A custody order is not only a useful tool to help everyone know when they are supposed to have the children but also it guarantees time that both parents get to spend with the child or be held in contempt. With this said, however, there are times when both parents may want to deviate from this schedule by agreement. If BOTH parties are agreeable to change anything in the custody schedule, you do not have to go back to court to do so unless you want to make it a permanent, guaranteed changed. If both parties agree to make changes, it is best but not necessary to put it in writing. It is encouraged that parties work with each other as custody orders cannot contemplate every single thing that may arise such as a wedding, party, or other event that flexibility may need to be used. Parties can always give each other extra time, makeup time, agree to switch days, etc. by agreement regardless of what the custody order says as long as both parties agree.

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Consequences of Custody Contempt

23 Pa. C.S. 5323 (f) provides that any custody order should have sufficient detail to enable the parties to understand what they are obligated to do and for law enforcement authorities to be able to assist in enforcement where appropriate. Section (g) discusses the consequences for violation of an established custody order. “A party who willfully fails to comply with any custody order may be adjudged in contempt. Contempt shall be punishable by any one or more of the following: (i) imprisonment for a period not more than six months; (ii) a fine of not more than $500; (iii) probation for a period of not more than six months; (iv) an order for nonrenewal, suspension or denial of operating privilege; and/or (iv) counsel fees.” 23 PA. C.S. 5323 (g).

As the statute is worded, every technical violation of a custody order should not be punished as contempt. Instead, the statute refers to parties who willfully fail to comply. This would suggest a showing of bad faith on the part of the non-compliant party. There are last minute changes or emergencies that occur in life which could disrupt a custody schedule. Infrequent instances would not be grounds for the punishment contemplated by the statute. However, parties who frequently and repeatedly disobey the court order may face some of the sanctions provided. Counsel fees are a popular sanction where the parties are represented with imprisonment being the most extreme sanction for a custody matter.

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Holidays and Custody

When it comes to holidays and custody, the courts generally will alternate the holidays so that one parent has the children in even years and the other parent has the children in odd years. Easter is usually only considered as a Sunday holiday not an overnight the night before. It is important, however, to always think about the children and parents can always design their own holiday schedule instead of leaving it up to the Courts. If both parties enjoy having Easter morning with baskets, you may want to alternate the Saturday into the Sunday. You may also want to split the day much like you with Christmas so that one parent has the night before and morning the other parent has the other half of the day into the next morning. Even children who do not have parents who are divorced are often shuffled on holidays between homes of in-laws, other relatives, etc. It is important to think about the children and what is in their best interests. When is it is not practical to share the holiday, a good alternative would be to Skype or facetime with the other party and family so that they can share in the celebration by video.

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Typical Child Custody Schedule for Holidays

In any childs custody case, it is best if the parties design their own custody schedule so that they have more control over the personal considerations in each of their families as well as to include some days that may not be considered an official holiday for court custody purposes. When, however, communication has broken down and it is not possible to come to an agreement even on holidays, the court will often in both New Jersey and Pennsylvania have a routine method of determining holidays. In some counties, it is a pre-printed holiday list that the parties will receive. In others, it is a generally conceived concept. In most cases, the court will alternate holidays on an odd year/even year basis rotating the holiday every year so both parents will have time alternating years. For some holidays, such as Christmas, the court will usually break the holiday into two parts. One parent will have Christmas Eve until Christmas Day and the other parent will have Christmas Day until the Day after and this will alternate each year to allow both parents the opportunity to have Christmas morning every other year.

Some of the holidays that the Court often does not include are Halloween, birthdays of the children and birthdays of the parents. They often do not consider July 4th into the next day or after fireworks. They do not consider the Memorial Day or Labor Day as a full weekend. They usually do not split Thanksgiving in half which is possible if the parties agree to share the day. This is why it is so important that parents work together to communicate and agree to holidays rather than have a court decide how to divide the holidays. Sometimes one parent works on holidays and it makes sense the other parent should have the children but if you do not come to an agreement, this is not likely to happen. It is best if you are going through custody, not only to work out a schedule for your children but to really think about how your families structure and celebrate the holidays to make it best for the children.

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Ways to Stay Connecting in Custody Cases

One of the sad realities of divorcing when you have children is that there will be times when they will not be with you, sometimes, large periods of time if you are the parent with partial custody or even when you share joint physical custody. Sometimes, grandparents are also faced with separation from grandchildren due to divorce, death of their adult child, or incarceration of their adult child. Although you cannot always be with your child or grandchild, there are things that you can do to ensure that you are still connected to their life on a regular basis.

One of the greatest outcomes of improved technology is the ability to communicate in real time by way of video conferencing. If you and your loved one has an iphone, you can facetime over your phone. This allows you to see the other person over your phone which provides as greater sense of connection. Just today, I was able to facetime with my sister who was on a mountain skiing and I was able to watch my six year old niece ski with her dad for the first time. Although I was miles away, I was able to witness this event at the time it was happening. How amazing is that? I realize that not everyone has an iphone or can afford an iphone. If you can, it is an incredible tool for staying connected. It is very easy to use, so much so that even my three year old son is able to pick up the phone and facetime with his grandmother without me doing anything. It may require a little bit of effort in placing a photo of the person next to their facetime number, but once it set up, it is ready to go.

Another option would be to SKYPE. This requires access to a computer on both ends and the program downloaded on each computer. This a popular way of videoconferencing in Europe and is equally valuable here. You can communicate by video with your loved one but you will have to coordinate so that you are both online at the same time.

If you are not able to communicate through video, you can stay connected through other ways such as text messaging, phone calls,  facebook, other social media applications, sending letters in the mail, showing up for public events that the child may be involved in.  These are the traditional ways of communicating and they work great as long as you put the effort in to staying connected.

There are many opportunities to connect if you make the effort. If the other parent is placing obstacles in your path, you may need to get the terms set forth in writing in a custody order as to your rights on using these means to stay connected. If you work together, you can, however, create an opportunity for both parents to be very involved and connected regardless of where the child physically lives.

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When a Parent withholds custody

As detrimental as it is to the children of a separation or a divorce, sometimes one parent chooses to withhold the children from the other parent. They may feel they are the better parent and are protecting the children. They may just be angry and want to use the children as pawns to get back at the other parent. They may feel they have the right to determine the custody schedule for various reasons. Regardless of why a parent is withholding the children and keeping them from the other parent it is not something that either parent should take into their own hands. If you are the parent who is not seeing your children, you need to immediately file for emergency custody in the county where the children reside if they have been there for at least six months. If the children have not bee in that state or county for six months, then you need to file emergency relief in the state or county where they last resided for six months. If your ex moved out of state with the children less than six months prior, you will want to also seek relief that includes returning the children to the state, and possibly alerting the authorities if the other parent did not disclose their whereabouts. Waiting to file with the court can impact your case as the court will question why something was not done sooner. In addition, you should record all attempts that you make to contact the children both before and after you file. This could be text messages, letters sent to the house, phone calls made, and attempts to visit. You should be careful, however, in remaining calm as sometimes the other parent will then allege harassment or file a Protection from Abuse in an attempt to further gain control in custody. As difficult as it will be waiting to get into court, the sooner you file the sooner the court can remedy the situation.

If you are parent withholding, you should very careful that there is a legitimate reason which usually is only in the event the child is in serious physical bodily harm. In the event that you have chosen to withhold, the court will look at attempts to alienate the other parent as a factor in deciding to whom to award custody. If you feel your child is being abused, you should contact the Child Service Protective agency in your area to conduct an investigation as well as quickly file your petition for custody. Withholding out of spite or under the belief that you are the better parent can not only have serious consequences in the custody schedule that ultimately gets decided but can do serious damage to your children. Children should never be placed in the center of a custody dispute. The Courts favor a relationship with both parents, and in circumstances where it is warranted will place one parent under supervision.

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