Stepparents and Custodial Rights

Under the custody laws, when parents split up, both parents often will go to court or come to an agreement on a custody schedule. What happens, when a parent and a non-biological parent separate? Oftentimes, the non-biological parent may have been very involved in the child or children’s lives. If that non-biological parent did not adopt the child, they can still sue for visitation and/or custody of the child or children under in loco parentis. This means that they have the right to go to court to seek scheduled time with the children, be that primary custody, partial custody or visitation even though they are not the biological parent and even if both biological parents have their own custody schedule.

In some instances, one or both of the biological parents may object and say that they did not act in loco parentis and therefore they cannot bring a case. This, however, is often, if not always overcome in a stepparent relationship. To establish in loco parentis, the stepparent has to show that they discharged parental duties with the permission of a parent. Given that in a household both the parent and stepparent usually handle matters together such as paying the bills, driving children around for activities, going to school functions, helping with homework, it is not difficult to see why it would be difficult to say a stepparent did nothing for the child or children.

The standard that the court uses to determine the custodial schedule for a stepparent is no different than the standard used to determine custody for the child generally and that is the best interest of the child. There are instances where a stepparent ends up with primary custody if the circumstances warrant it. Generally, however, a stepparent, should anticipate that the court will give more preference to the biological parents as primary or joint custodians with the stepparent getting some time carved in there if it is in the child or children’s best interest.

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Testimony of the Child in Child Custody

Sometimes when you are going through a custody battle your children may have to testify. Oftentimes, depending on their age, it will be done in chambers with the Judge and attorneys present but not the parents. There is always the possibility, however, it may be done in open court which is much more intimidating for the child. Usually, it is the very last testimony in a case as throughout the trial, the attorneys and the Judge may still be trying to settle the case. No judge wants to have to make a child testify but if one of the parents wants the child to testify, the judge has no choice. Rather than have your child miss an entire day of school or sit at the courthouse all day, you may want to see if you can have the child can be brought to court by a third party if needed.

One of the factors in a custody case in Pennsylvania is “the well-reasoned preference of the child, based on the child’s maturity and judgement.” This certainly does not mean that just because your child testifies that they would rather live in your home the majority of the time that you will automatically get custody. There are numerous other factors in custody that the Court also must weigh. In addition, the judge is looking for motives as to why the child says that if it even comes out as all.

Parental alienation is real and turning a child away from the other parent or unduly influencing the child is something that will play against a parent in a custody case. If your child does not testify, there are other ways that the judge may be able to determine the well-reasoned preference of the child. Most cases prior to trial will have a custody evaluation done either through the court depending on the county or through a private evaluation. This process will involve interviews with the child and this information will be conveyed in the report. When you have a court date and your child may be faced with having to testify, it may be best to not mention it to the child. Oftentimes, it ends up not be necessary and there is no reason to worry the child and when it does happen it is better to explain it shortly beforehand at the courthouse then to appear as if you may have influenced the testimony. Also, after they testify it is a good idea not to punish your child or interrogate your child as to what was asked and what was said. The more you focus on, the more traumatic you will make it for your child.

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Five Mistakes to Avoid in a Child Custody Case

1. Allowing your new spouse to act as the go-between with other the other parent. In a custody situation is it important that the parents communicate with each other. Your new spouse or significant other should not be the one to handle all the affairs of your child. It is important as a parent to show that you are involved with your child.

2. Withholding the children unless they are being seriously abused. It is always a bad idea to take unilateral action and instead allow the courts to decide what contact is necessary. Withholding children without a very valid reason will end up as a factor against that parent in a custody proceeding.

3. Making unilateral decisions about the child without the other parent. In most cases, parents have joint legal custody and both parents are entitled to attend doctor’s appointments, make health care decisions, decide on schooling for the child. Withdrawing a child from school without consent of the other parent will often result in contempt. Not working with the other parent to schedule doctor appointments they can both attend can also result in contempt and can harm a parent in a custody dispute.

4. Posting photos on Face book that can be used against you. Be careful what you post on the Internet as it can come into play in a custody case.

5. Keeping the children from grandparents. If you exclude grandparents completely, oftentimes you will end up with additional litigation. Grandparents have rights and can bring their own action for visitation.

For more information see: /Family-Law-Divorce/Child-Custody-Visitation/

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Getting through child custody with gratitude

Child custody is one of divorce’s greatest challenges. When all is said and done and the assets are distributed and the divorce is final, there are still the children of divorce that forever tie you to the other parent. Whether your children are little or grown, there will be times when you will encounter the other parent whom you are no longer married to but have children and possibly grandchildren in common with after the divorce. This can be frequent during child custody. Oftentimes, when children are little, there remains hurt feelings, resentment, possibly jealously as the other parent moves on seemingly unscathed. It may be very difficult during these times to maintain the level of civility in child custody that is critical to raise happy, successful children of divorced parents. The last thing you may want to do is have to continue to parent with this other person that you no longer love, that you resent or that continues to undermine everything that you think is best. It takes acceptance of the fact that both parents are entitled to have a loving and caring relationship with their children after a divorce in order to provide the best for your children.

One important part of treating the other parent with the respect in child custody that is needed to raise healthy children that are not constantly in the middle of conflict is gratitude. Whether the other parent is in your opinion is a good parent or a worthless excuse for a human being in your eyes, it is helpful to look at it for what that person’s existence means to you. Had you never encountered the other parent, good or bad, for one night or many, that little child or children who mean the world to you would not exist. Their unique genetic combination is only the result of having had a relationship, however, brief the encounter, with the other parent. Take the other parent out of the equation from the start and your child would not exist. If every time you have conflict with the other parent and you can go to a place of gratitude for that person for having given you one of life’s greatest gifts, your child, it becomes much easier to deal with whatever conflict you have. As much as your love your friends and your current significant, remember it was this other parent who gave you life’s greatest gift. If you look at it from the perspective of your child, you may understand the importance of having both parents involved in the child’s life, no matter how great or how little. How many parents have a relative who may have done similar things as the other parent, but they find it acceptable to still love their relative while completely trying to eradicate the other parent from the child’s life for the same things? Oftentimes, parents think of custody from their own wants and needs rather than looking at it from their child’s best interest.When you come from a place a gratitude, it helps you to make decisions that are in your child’s best interest and helps reduce the conflict that can damage children.

For more information on custody visit: /Family-Law-Divorce/Child-Custody-Visitation/ 

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Custody and Incarceration

What happens to a child when their parent goes to prison? If a child is placed with the state agency, such as Children and Youth, a parent may still be able to visit with their child during the time that the parent is incarcerated. It is important for an incarcerated parent to do everything possible to maintain contact with their child and to be active in order to protect their parental rights. Failure to maintain contact or interest can result in a termination of parental rights and adoption if the child is in agency care. Even if visits do not occur, it is important to write, request information about the child, attend hearings and take parenting classes while in prison. If drug and alcohol abuse is an issue, it is important to seek help while incarcerated through the programs offered through the prison.

If a child is with the other parent, oftentimes, the Court does not enter a visitation schedule. Perhaps the Court does not feel compelled to make a parent who is not incarcerated bring a child to visit the prison whereas if the child is in foster care, an agency worker usually brings the child to the prison. Studies show that maintaining family relationship usually helps with the rate of recidivism. If you do choose to bring a child to the prison, you may wonder what those visits look like and what happens during the visits.

If the inmate is in Bucks County, they will be either housed in the prison or the community center. You must contact the prison to find out days and times that there are visitation hours. You should arrive early as they only have limited number of visitors and if it fills up, you will not get in. Your child must be accompanied by an adult and both the child and adult must be on a pre-approved list in order to get it. The visits last approximately a half hour and you will be herded in through security to a room with windows and a telephone. Your child’s parent will be brought into a large gym and they will find you at the window with the phone where you can speak through the glass via a phone. There is no physical contact.

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Planning foreign travel with children when separated

If you are separated and plan to travel out of state with your child, you will need to make sure that you have a passport and that you have permission from the court. In order to obtain a passport you will need consent from both parents and signatures. If your custody order does not provide for travel out of the country which most do not, then you will need to also obtain consent from the other parent in writing with specifics on the travel or you will need to obtain permission from the court if the other parent objects. In most instances when a parent objects to out of the country travel, the parent wanting to travel will have to establish the necessity and that it is in the best interests of the child. Oftentimes, the court errs on the side of caution and denies the request. Taking a child out of the country imposes many risks when parents are separated, depending on which country you intend to travel. These risks include the difficulty of enforcing a custody order should a parent decide to not return with the child. Oftentimes the court will look to see if the country is part of the Hague Convention which means that the country has signed on to enforce foreign custody orders. Even if they are part of the Hague Convention is not a guarantee for a speedy return of child. Research should be done on each country prior to traveling to see how they have treated United States custody orders. Other risks in travel include diseases, instability of a country, and requirement for certain vaccinations. If you plan to travel with a child and are separated, you will need to plan well in advance in case you need to go to court to seek permission.

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Handling Custody during bad weather/sickness, use common sense

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Oftentimes when you have a custody agreement, your agreement or order spells out specific times and meeting places for custody exchanges. Even the best crafted custody agreement, however, does not contemplate every situation that possibly could arise.  In these circumstances, you must often make a judgement call.  For example, if your child is burning up with a fever, it may not be in the best interest of your child to insist that they return to you for your designated custodial time.  You may want to consider your child and let them rest until they are up for travel.  With winter upon us, you may also find yourself required by your custody order to exchange your child in the middle of a snowstorm, or worse, blizzard.  Again, you should use your best judgement in deciding whether to follow the custody agreement.  This is why it is very important that parents be able to communicate with each other.  Oftentimes, you will need to make accommodations for the other parent.  You cannot expect a custody agreement or court order to resolve every possible scenario.  

For those parents with an ex who threatens the police or court if the custody agreement is not followed when one of these emergency circumstances arise, I would suggest that you still exercise your best judgement.  As long as it is a true emergency and you are no abusing the system and alleging your child is sick when in fact that are perfectly fine, it is not likely that you will be found in contempt but be prepared to prove it just in case. Take a photo of your child’s temperature, get a copy of the weather report for your area.  Always put the safety of your child and well being of your child first in an emergency circumstance.  That being said, it may be a good idea if the other parent misses time due to snow or an illness that you offer make up time.  The more you give, the more you get.  Mother nature does not play favorites and it could easily happen on your time.

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Why you should file a counterclaim in custody

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If you are one of the many families who are facing custody issues and you find that your ex has file a petition for custody or a petition to modify your current order, you should consider filing a counterclaim for custody. While it is true that you do not have to file an answer or a counterclaim in order for the court to decide a schedule, what happens if your ex suddenly withdraws their petition the day of the hearing?  If you do not have a counterclaim filed, then the Court will cancel the hearing since there will be no petition to hear. While this is fine if you do not want a change, it may not be so great if you were expecting to raise issues on why you need an order or why you want a change, this is not such good news. In order to prevent this from happening, you should always file a counterclaim on custody. That way, if your ex does decide to withdraw the petition filed, the Court will have to hear the case unless you also withdraw your petition.

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International Parental Kidnapping

International parental kidnapping occurs when a child is removed from the United States with the purpose of interfering with the other parent’s custodial rights. The federal law governing this issue, 18 U.S.C. §1204, defines child as a minor less than sixteen (16) years old and specifies that parental rights includes any custody rights (sole, joint, visitation) whether existing by court order, prior agreement or operation of law. There are affirmative defenses under the law which would consider if removal is pursuant to a court order, for the purpose of escaping domestic violence, or of a temporary emergency nature. Sanctions for parents found to be guilty of international kidnapping include imprisonment for up to three years.

Return of the child may be arranged through the Hague Convention of the foreign country is a signatory to the convention. Otherwise, the U.S. Department of State will try negotiation with the foreign country in an attempt to secure return of the child. With regards to U.S. custody orders, it’s good practice to provide that international travel may only be by written consent of both parties or court order. Parties should pay attention to which country the other parent intends to travel to and whether that country belongs to the Hague Convention on Civil Aspects of International Child Abduction and would recognize a U.S. custody order if necessary. Additional information on international child abduction is available through the U.S. Department of State website below.

U.S. Department of State: International Child Abduction

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Uniform Child Custody Jurisdiction and Enforcement Act

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) clarified an uniform approach to dealing with child custody matters nationwide. Since its inception in 1997, 49 states as well as the District of Columbia have adopted the Act. One of the goals achieved through the UCCJEA is clear guidance on who should exercise jurisdiction over a custody matter. The preferred method for establishing jurisdiction is based on the home state of the child. The homes state is defined as the state where the child had been living for at least six (6) months prior to the custody action or since birth if the child is less than six months old. If jurisdiction is not clear based on an analysis of the home state, the courts should then look to see where there are significant connections and substantial evidence relevant to the custody action. Significant connections is more than just mere presence in any state.

Once a court obtains jurisdiction under one of guidelines above, that court continues to have exclusive jurisdiction until it is established that another court has become more suitable for jurisdiction. Accordingly, any modifications of custody must go through the court that made the initial or prior determination. There is an exception to the rules on jurisdiction in the event of an emergency. If a child is in danger and there is a need for immediate action, the jurisdiction where the child is located at that time can enter a temporary emergency order. The UCCJEA also provides a procedure for registration and enforcement of custody orders across state lines.

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