Implications of Rape in Custody/Parental Rights

Pennsylvania has some of the best protections nationwide in the instance of mothers who opt to have a child following a rape. First, there is the potential that the rights of the natural father/perpetrator of the rape can be terminated. Pursuant to 23 Pa CS 2511(a), which lays out the grounds on which a parent’s rights can be involuntarily terminated, paragraph (7) provides for termination where “the parent is the father of a child conceived as a result of rape or incest.” While it is a plus that the law specifically allows termination of parental rights in a rape case, a party petitioning for involuntary termination will still need someone willing to adopt the child simultaneously with the termination which may cause a dilemma.

In addition to provisions regarding involuntary termination of parental rights, rape is also expressly addressed in Pennsylvania’s custody laws. Under 23 Pa CS 5329, the court is to consider criminal convictions, not just official charges, when making a custody decision. However, while the court must consider a rape charge, that doesn’t mean it can’t grant the father/perpetrator any custody time. Instead, the rape charge would just be one of several factors for the court to consider in determining what’s in the child’s best interests as is required for all custody decisions.

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Reunification Counseling in Custody Cases

Reunification counseling is a process meant to rebuild a relationship. Often times, reunification counseling will be used in the context of a custody dispute to reintroduce and/or reinforce the relationship between a parent and their child. There are several reasons why reunification counseling may become necessary. It could be a situation where one parent was not involved in the child’s life for a long period of time and so some type of counseling becomes helpful in assisting both parties ease back into a normal relationship. Alternatively, a course of reunification counseling can be used after a sudden change in relationship has caused damage or anger. For example, a child may not understand why his or her parents have separated and may show anger or resentment towards the parent who moved out of the home. Or perhaps, it is not even the child initiating the feelings of resentment or anger, but the other parent who then projects those same feelings onto the child.

Reunification counseling can be viewed as a more collaborative approach to re-establishing a relationship as opposed to just having the court force certain periods of visitation when the child may not be willing or emotionally ready. This is especially a concern when dealing with teenagers. A custody order forcing visitation with the other parent may serve a temporary goal but ultimately result in lifelong resentment once the child is over 18 and free to make his or her own choices. It may be more beneficial to be patient on the front end in exchange for a healthy relationship that has the potential to last past their “childhood” years. It is the role of the reunification therapist to facilitate the process with the end goal of repairing the relationship going forward. If you are facing a high conflict divorce or separation or have been inactive in your child’s life for a certain period of time and feel you may need help rebuilding the relationship, consider reunification therapy as an option to get the relationship back on the right foot again.

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Holiday & Vacation Time in Custody

In the midst of the holiday season, it may become necessary to consider where children will spend the holidays if they have separated or divorcing parents. A holiday schedule can be included as part of a custody order. Frequently seen provisions include alternating holidays so that one party has even years the other has odds or splitting the holidays so that each party has a certain time allotted on the holiday itself. Ultimately, it is up to the parents and/or guardians in any given case to make a schedule that works best for them. It may be a schedule where the parties will always have the same holidays every year and won’t alternate or share. In some instances, a custody order may state that holidays will be shared as mutually agreed upon by the parties without the need to lay out specifics. There may be unique family traditions that don’t occur on the actual holiday that a party will want the kids to be involved in.

Another scenario to consider is if one party likes to travel during the holiday season and therefore intends to schedule a vacation during that time. Holiday and vacation time will generally supercede the regular custody schedule, however, be sure any custody order makes clear whether the holiday schedule or vacation provision takes top priority. As a practical matter, parties should try to be as civil and cooperative as possible when discussing holiday time. The holidays can be an especially difficult time for families that are going through separation and divorce and everyone involved will benefit from a process that is as amicable as possible.

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Types of Custody

Custody refers to the rights of a parent or other adult to be responsible for a minor. In family law there are several types of custody that may come into play. Sec 5322 defines all the different variations of custody. First, there is legal custody versus physical custody. Legal custody is defined as “the right to make major decisions on behalf of the child, including but not limited to, medical, religious and educational decisions.” As it relates to legal custody, it can either be shared between the parents or other responsible parties meaning they have to consult with one another and agree on the major decisions or one parent/party can have sole legal custody and make any decision on their own.

Physical custody is defined as “the actually physical possession and control of a child.” There are several scenarios that can play out as far as physical custody. First, it can be shared between the parents/parties. Shared, or joint, custody is generally understood to mean equal or 50/50 time. There can also be sole physical custody meaning one parent/party has physical possession of the child all the time. Another form of physical custody is primary physical custody. Primary custody grants the right to have possession of the child the majority of the time. In a situation where one parent/party has primary, the other parent/party would be deemed to have partial physical custody. Partial custody means they have the child for less than a majority of the time. Physical custody can be supervised if needed in which case it would need to be determined who would supervise the custody time be it an agency of the court, one of the parties involved, or a third party. The term “visitation” is used interchangeably with partial custody.

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Pet Custody Battles

Many people consider their pets as members of the family and accordingly, when the family breaks up, custody of the pets can become an issue. The Today Show recently covered a story of a man who had already spent $60,000 in a custody battle over his dog previously shared with his ex-girlfriend. While pets may be considered members of the family from the perspective of the owners, the courts in Pennsylvania deal with pets the same way as they deal with other inanimate personal property in the event of a divorce.

First, a count for Equitable Distribution must be raised in the context of a divorce in order to get the court involved in dividing any property. There are generally two options available when it comes to how property will be divided. First, the parties can reach an agreement on how they will divide property and submit this written agreement to the court so that in the event either party does not comply, the disgruntled party can file for contempt and the court can assist in enforcing the agreement. The other option when it comes to property division is to go to a hearing and let the court decide. If you go this route, the court will likely give the pet to one spouse or the other just as it would any other personal property such as furniture or TVs. It is not likely to get involved in creating a schedule to continue to share the pet post-divorce.

The great thing about an agreement is that it can be as specific as the parties want. The courts rarely get involved in the content of agreements that are knowingly and voluntarily entered into and treat them as binding just as they would any other contract. Therefore, an agreement could provide for a custody schedule more similar to one you would normally see with children. For example, the spouses may decide to split custody of the family pet and lay out the terms of when they will exchange custody back and forth (i.e. every two weeks, every month, etc.). Or, the parties may even agree that the schedule for family pet will coincide with the schedule for their minor children if applicable.

More on Dividing Property

Today Show story on pet custody battle

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Custody Relocation and Alternative Forms of Visitation

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.” 23 Pa C.S. 5322. 25 percent of the 35 million children with separated, divorced or single parents have a parent that lives a significant distance from the other parent, limiting the amount of traditional custody time with the non-custodial parent. In addition to giving notice of the proposed relocation and petitioning the court if the other party won’t consent, the party seeking relocation is to submit a proposed order outlining the custody schedule in the event of a relocation. As with any custody decision, the party seeking relocation must show how the relocation is in the child’s best interests. A party seeking relocation should use the proposed order to demonstrate their genuine intent to ensure the nonrelocating party will still have a strong relationship with the child(ren) as a Judge will usually believe maintaining a strong parent-child relationship is in the child’s best interests. This responsibility to prove that a strong parent-child relationship will continue has become easier with the development of social media and video calling services. In fact, the term “virtual visitation” has been coined to describe the opportunities for parents and children to remain touch through the use of technology.

There are several different programs that make it easy for people who live in different places to stay in touch. Skype has become a popular service which allows people to see each other while talking to one another other the internet. FaceTime is a software program available on many cell phones which also allows simultaneous live video streaming in the context of a phone call. Many use Facebook to keep in touch by sharing photos, sending messages, etc. It is now commonplace to include terms for virtual visitations in custody orders where the parents live in different places. Such an order would lay out how often the virtual visits will occur and how long they will last (i.e. Parties will Skype on Tuesdays at 8pm for 30 minutes). A Judge may even order a party to get the appropriate software or equipment to ensure such virtual visitation can take place if they do not have the necessary components already. Several states have laws on the books expressly governing virtual visitation. While Pennsylvania does not expressly reference virtual visitation in its statutes, Judges in the Commonwealth have been including provisions on virtual visitation in custody orders made in the context of relocation.

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Obesity as Custody Factor

The issue of obesity among both children and adults is a regular topic in the news. It is also being addressed more and more often in the realm of family law. Parents in a custody dispute may allege the other parent is not a fit parent because of their own weight problems. The argument then follows that the parent will not be able to provide proper care for the child because he or she won’t be able to keep up with the child. Alternatively, parents may hurl allegations at each other because of the child’s weight problems. Here, arguments may be made that a parent is not looking out for the best interest of the child because he or she allows the child to eat predominantly unhealthy things or doesn’t promote adequate exercise. This failure to ensure an appropriate diet and active lifestyle puts the child at risk for developing serious medical problems such as diabetes or heart disease. It may also subject the child to additional ridicule from their peers damaging their self-esteem and psychological well-being.

Pennsylvania specifically alludes to a child’s physical well-being as one of the factors to be considered in making a custody award based on the child’s best interests. This factor was added when the custody laws were revamped effective January 2011. 23 PA CS §5328 (10) mandates the court to consider which party is more likely to attend to the daily physical, emotional, developmental and special needs of the child. Accordingly, it is relevant to discuss concerns with one parent’s weight and its potential to hinder their ability to provide basic hands-on care for the child. It is also relevant to raise the issue of how a party’s parenting is or isn’t beneficial to the child’s physical well-being. Child obesity is becoming a real epidemic with potential lifelong consequences and a Judge would be remiss not to consider which parent is taking the appropriate measures to provide a healthier lifestyle for their child.

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Military Deployment as Custody Factor?

The US House of Representatives just passed a bill that would prohibit family courts from considering military deployment as a factor when awarding custody. The bill was introduced by Representative Michael Turner, R-Ohio, and will now be headed to the US Senate for a vote. The rationale behind the bill is that individuals who are ordered into deployment by one branch of government should not be punished in the form of adverse custody decisions by another branch of government. Presently, family court judges can cite deployment as a factor in determining a custody order. The bill would only prohibit deployment as a factor if the individual being deployed cannot bring family members with them on their assignment. Further, the assignment must be between 60 days and 18 months in length.

There is already a law in place protecting military members in the context of divorce. Persons in the military service of the United States are specifically protected by the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SCRA), which, by making provision for the temporary suspension of legal proceedings and transactions relating to them, is designed to ensure that their civil rights are not prejudiced during their terms of service. The SCRA is not, however, a blanket moratorium on all divorce actions against servicepersons. Its protections only come into play when the defendant is prevented or hindered by his or her military service in defending the divorce action. An affidavit of non-military service is a commonplace requirement in a divorce action wherein the plaintiff must submit a signed affidavit indicating the defendant is not in military service in order to move the divorce forward. The defendant can waive the protections of the SCRA and proceed with a divorce while in military service if they so choose.

Military Divorce

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New Child Custody Act – Factors to Consider when Awarding Custody

The custody laws in Pennsylvania were recently revamped with a new set of statutes regarding custody coming into effect in 2011. Any custody award is still to be based on the best interests of the child. Section 5328 of the new law lays out 15 factors to be considered when awarding custody in addition to any relevant factor.

The enumerated factors include:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(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.

(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.

(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

(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.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

(15) The mental and physical condition of a party or member of a party’s household.

Section 5323 provides that the court must detail the reasons for its decision either on the record in open court or in a written opinion. Therefore, the court must go through each factor that it considered and explain why it decided as it did. So far, the Superior Court has been strict in upholding this requirement. In J.R.M. v. J.E.A., the court awarded primary custody to the mother and father appealed on the basis that the trial court did not consider the 16 factors listed in Section 5328. 2011 Pa Super 263 (2011). The Superior Court granted the appeal, finding that the trial court did not properly consider the factors listed in the statute. Accordingly, all parties in a custody action should be prepared to argue on all of the relevant factors and also ensure that the court addresses all relevant factors in their decision.

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