Vacation Schedules in Custody

Vacations are a staple of the summer season and you want to make sure your children are able to enjoy vacation with you. A vacation schedule can be included as part of a custody order to alleviate any confusion or disagreement. Standard provisions specify how many weeks of vacation each party is entitled to per year, how the weeks may be exercised, what type of notice should be given, and what additional information should be provided. A sample vacation schedule paragraph is below:
Each party shall have two non-consecutive weeks of vacation each year with thirty days advance written notice to the other parent. If there is a conflict on vacation where both parties plan the same week, the party who gives written notice first shall be entitled to the week. Written notice may be via email or text message. The parties agree that they will each exercise their vacation week to include their regular scheduled time so as not to unnecessarily disrupt the regular custody schedule.

The parties agree will provide the other parent with a travel itinerary, and names of anyone traveling with the children and provide contact information for how to reach the children while on vacation. The parties agree that if either parent intends to remove the children from the Commonwealth of Pennsylvania for any purpose for any length of time over two days, that he or she will provide one (1) week notice to the other and indicate the destination where he or she intends to take the children, names of anyone traveling with the children, the length of the trip and a phone number and address where the children can be reached. Neither party will be allowed to travel out of the country with the children unless both parties agree in writing or a Court Order is obtained. The parties acknowledge that the vacation schedule takes precedence over the regular schedule and the holiday schedule takes precedence over the vacation and regular schedules so that neither party may take vacation during the other party’s holiday time.

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Improper Custody Relocation

Pennsylvania’s custody relocation statute, 23 PA C.S. 5337, requires the party seeking relocation to get court approval or the other parent’s permission prior to relocation. A relocation is defined as any move that would “significantly impair the ability of the nonrelocating party to exercise custodial rights.” Procedurally, the party intending to relocate should give at least 60 days notice or notice as soon as possible after they have knowledge of the relocation. A full hearing on the relocation should be held prior to the move if the relocation is contested. In addition to addressing the 16 factors to consider in any custody award, the moving party must also address the 10 relocation factors. The moving party has the burden of proof to show relocation will serve the best interests of the child(ren) and that there is no improper motive in seeking to move.

Failure to abide by the procedures listed in the statute has consequences. Specifically Section 5337(j) discusses the ramifications for failure to provide adequate notice and follow the appropriate channels. The court may consider the lack of notice as a factor when making a final determination on the relocation and whether custody rights should be modified. The court can also view the lack of notice as a basis for ordering the return of the child to the jurisdiction. The court may order the party who improperly relocated to pay attorneys fees and expenses on behalf of the party who must initiate litigation to indicate their opposition to the relocation. The court can also treat it as a matter of contempt and impose sanctions against the moving party. Finally, 5337(l) explains the court is not permitted to confer any presumption in favor of the relocation where it occurs before the court holds a final hearing.

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Guardian Ad Litem

A guardian ad litem (GAL) is an attorney the court appoints to represent the best interests, and often times the legal interests, of a child in a court proceeding. Once appointed, the GAL should participate in all future proceedings as necessary to continue to ensure the child’s interest. By law, the GAL is mandated to meet with the child as soon as possible following appointment. Additionally, the GAL should review all the relevant records related to the case and conduct further investigation as deemed necessary. Further investigation may include speaking with the child’s parents and/or guardians as well as interviewing other potential witnesses.

The GAL’s ultimate responsibility to the court is to make specific recommendations for an order that will address the child’s safety and provide for his or her best interests. The GAL’s responsibility as it relates to the child is to explain the proceedings to the child in a manner that they can understand. Additionally, the GAL is to explain the child’s position to the court along with any evidence in support of their position. A GAL must be appointed in any case where it is alleged that the child is a dependent. A GAL may be appointed in other instances such as custody cases or Protection from Abuse cases involving the child. It is possible that a child can be appointed a GAL to protect their best interests and a separate attorney to protect their legal interests.

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New Custody Rules for Chester County

Chester County has just approved a number of changes to their local rules regarding custody matters. For all custody orders, it must be stated within the order that neither party will relocate with minor children without proper consent or court approval as required under Section 5337. For all initial complaints for custody or petitions for modification, the criminal history affidavit must be included. The non-moving party should file their criminal history affidavit within 10 days following service. After filing of the complaint or modification petition, the parties must attend an approved parenting class and provide proof of their attendance. Presently, the court approved parenting program is “Children in Between.” In some instances, the parties may also be ordered to attend a mediation session.

All temporary orders for custody should include language that it will become permanent in 180 days after filing of the underlying petition or 90 days after a conference, whichever is earlier, unless a demand for trial is filed including a certificate of trial readiness and pretrial statement. The pretrial statement must include a summary of the issues, concise statement of facts, list of all potential witnesses, exhibits that may be offered, a proposed final order, and an updated criminal history verification. An interim order shall be entered at the conference. Objections to the interim order shall be put in writing and filed with the prothonotary to be scheduled for a hearing. If the interim order would result in a change in primary custody, a request for a stay must be filed within 5 days.

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National Foster Care Month

May is National Foster Care month. Foster parents play an important role in providing stability for children in their transition from their natural parents to a permanent home. Bucks County Children and Youth Social Service Agency oversees the foster care program for the county. The Agency offers informational meetings throughout the county on various dates for interested volunteers. Bucks County presently has a need for additional volunteers. Approximately one-third of the children in need of foster care in Bucks County are placed out of the county due to the shortage of available foster parents.

Foster parents are given training by the county. Additional support includes financial and medical assistance for the foster child. The children benefit from having the option of residing with a foster family instead of being placed in an institution or group home. It is also beneficial to match the foster child with a family of similar cultural and/or ethnic background.
If you would like to request more information on becoming a foster parent, or if you would like to set up an in-home orientation, please email your name, address and phone number to Roxanne Watkins-Hall [email protected] or call 215-348-6997.You can also visit the website at: http://www.buckscounty.org/government/HumanServices/ChildrenandYouth/FosterParent

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Autism Awareness Month

April is autism awareness month. April has been set aside as the month to raise awareness for autism since the 1970’s. Autism is a group of complex disorders affecting brain development. Generally, signs of autism are most visible in toddlers and may include difficulty in social interaction, and communication. The CDC estimates that autism affects 1 in 68 children representing a significant increase over the past forty years. Early diagnosis/intervention and behavioral therapy are proven methods for helping children with autism which is why widespread awareness is key.

Dealing with children with any sort of special needs or developmental issues requires a great deal of attention, dedication, and commitment. Several of the factors to be considered in any custody award can be particularly relevant in this instance. Specifically, the following factors can be key: (3) The parental duties performed by each party on behalf of the child.(4) The need for stability and continuity in the child’s education, family life and community life.(5) The availability of extended family.(6) The child’s sibling relationships.(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
These factors can be even more important with a child who may struggle socially and have a greater need for stability/structure as well as familiar faces and familiar environments.

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Pre-Trial Conferences in Custody

A number of changes to the Pennsylvania Rules of Civil Procedure regarding custody took place this summer. One change, Rule 1915.4-4, provides the opportunity for a pre-trial conference in a custody matter. Either party may request the conference by written request in the form of a praecipe. Alternatively, the court can schedule one on its own motion. The timing of the pre-trial conference is after the parties have made their initial appearance at a custody conference but prior to the hearing scheduled before a Judge. The Rule provides the pre-trial conference should be scheduled at least 30 days prior to the start of a custody hearing. The Judge will preside over the pre-trial conference in chambers if both parties are represented.

 

At least 5 days prior to the pre-trial conference, each party must submit a statement to the court as well as the opposing party. The statement must include the name and address of all anticipated witnesses, including expert witnesses, along with their relationship to either of the parties, if any. The statement should also include a proposed custody order setting forth the schedule sought. Finally, all exhibits and/or reports that may be referenced in a hearing must be served on the opposing party but not submitted to the court. The goal of the pre-trial conference is to narrow and/or resolve any issues remaining for trial and encourage settlement of the case. At the conclusion of the conference, the court will enter an order outlining any agreements reached and limiting the issues for trial to those not already resolved. Hopefully this new procedure will be useful and reduce the likelihood of unnecessarily contentious custody battles in open court.

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Morality Clauses in Family Law

Some states routinely include a morality clause as part of a divorce case. A morality clause would prevent the parties from doing certain things following separation. In family law, the clause usually prevents either party from having a new partner stay overnight while minor children of the former marriage are present. Texas is one of the states that still routinely uses morality clauses in divorce actions. A recent decision in Collin County, Texas upheld a morality clause from a 2011 divorce ordering that the wife’s new partner vacate the home where two children from the marriage resided.

While morality clauses are not commonplace in Pennsylvania, they can be negotiated as part of an agreement in custody matters. Pennsylvania custody law dictates that the adult household members of the parties should be examined as part of the best interests of the child analysis. In some circumstances there may be clear cut reasons for wanting to restrict new partners from being around minor children such as criminal history or drug and/or alcohol abuse. In other instances, the parties just don’t want new people introduced into their children’s lives too quickly or only for a brief period based on the argument that the children need stability. Where the parties are entering an agreement they can put whatever restrictions they both agree to, however, if left to a Judge a party is more likely to be successful if there is a justification for the restriction rather than just a preference of one of the parties.

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Custody Relocation Procedures

In a custody matter, court approval or permission of the parent is required prior to a relocation. A relocation would be any move that substantially interferes with the custodial rights of the other parent. 23 Pa CS 5337 lays out the specific procedures to be followed in the event of a proposed relocation. First, the party seeking relocation should give 60 days notice to the other parent by certified mail, return receipt requested. If not possible to give 60 days notice, notice should be given within 10 days of becoming aware of the relocation. The notice of relocation should include as much information as possible regarding the new address including names and ages of individuals who will be residing there, home telephone number, name of new school district and school, and date of proposed relocation. A counter-affidavit should also be supplied with the notice giving the other party the opportunity to object to the relocation.

If notice is properly given and no objection is received, it is presumed the other parent consents to the relocation. The party seeking relocation would simply need to file a petition for confirmation of relocation. If the other parent objects, a hearing would need to be held prior to the relocation. Section (h) goes into detail about the factors for the court to consider when making a custody determination pursuant to proposed relocation. The party proposing the relocation has the burden of establishing that the relocation will serve the best interest of the child(ren) under the factors listed. Both parties have the burden of establishing an appropriate motive in seeking to relocate or opposing the relocation.

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Court Conciliation and Evaluation Service

The Court Conciliation and Evaluation Service, or CCES for short, is a program in Bucks County that conducts custody evaluations for pending court cases. Parties to a custody matter would participate in a series of sessions with an assigned evaluator. The goal of the program is to facilitate an ideal co-parenting relationship that provides for the best interests of the child(ren) involved. The end result of the program is either an agreement on custody or a full clinical report including a recommendation which is then provided to the court. In addition to the parents and the children, additional parties can be interviewed as part of the CCES process based on their role in the parties’ lives or unique insight they may be able to provide. On average, it takes 6-8 weeks for the process to be completed with the report due to the court within 45 days of the final session. An expedited evaluation which is completed in a matter of days is possible only in emergency situations or when one or both of the parties live out-of-state.

As far as procedure, parties are generally referred to CCES following the initial custody conference if the parties are agreeable; otherwise, the parties may be ordered to participate following a hearing. A referral form is completed which includes contact information for both parties as well as case information. This form is submitted to CCES. Both parties are responsible to submit an application fee directly to CCES prior to the start of the sessions. Parties are each responsible for the fee for the evaluation at the first meeting with the evaluator. Parties should also bring any documents they want the evaluator to review to the first meeting. The CCES report is a confidential document and cannot be dispersed directly to the clients based on the sensitive information it contains. Represented parties can view the report at their attorney’s office. Unrepresented parties can make arrangements to view the report at the custody master’s office. A custody hearing can be requested after the report is received instances where an agreement could not be reached during the process.

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