Limits on Grandparent Rights

Section 5325 of the Domestic Relations laws sets out the circumstances under which grandparents and great-grandparents may petition for partial custody/visitation. One of three conditions must be 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 grandparents or great-grandparents for at least 12 consecutive months provided a petition is filed within six months after the child is removed from the home. However, in a 2016 decision, D.P. and B.P. v. G.J.P. and A.P., No. 25 WAP 2015, the Supreme Court of Pennsylvania for the Western District, held that Section 5325(2) intruded on the constitutional rights of the parents.

In the instance case the parents to three children had been married and subsequently separated, but did not institute divorce proceedings. The grandparents filed for partial custody under Section 5325, where the parents of the child have been separated for at least six months, after the parents mutually agreed to end contact with the grandparents. The court ultimately ruled that just because the parents were separated did not mean they could not still make sound decisions regarding their children. Parents have a fundamental interest in rearing their children as they see fit. Any law that seeks to impede on that natural right must pass the test of strict scrutiny, meaning the it must be “narrowly tailored to further a compelling government interest.” The court held that Section 5325(2) did not pass the strict scrutiny standard and hence the grandparents were not able to ask for custody. There has not yet been a change to the statute in response to this decision.

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Changes to Grandparent Standing for Custody/Visitation

Section 5325 of the Domestic Relations laws sets out the circumstances under which grandparents and great-grandparents may petition for partial custody/visitation. One of three conditions must be 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 grandparents or great-grandparents for at least 12 consecutive months provided a petition is filed within six months after the child is removed from the home. In a decision from September 9, 2016, the Supreme Court of Pennsylvania for the Western District, held that Section 5325(2) intruded on the constitutional rights of the parents.

In D.P. and B.P. v. G.J.P. and A.P., No. 25 WAP 2015, the parents to three children had been married and subsequently separated, but did not institute divorce proceedings. The grandparents filed for partial custody under Section 5325, where the parents of the child have been separated for at least six months, after the parents mutually agreed to end contact with the grandparents. The court ultimately ruled that just because the parents were separated did not mean they could not still make sound decisions regarding their children. Parents have a fundamental interest in rearing their children as they see fit. Any law that seeks to impede on that natural right must pass the test of strict scrutiny, meaning the it must be “narrowly tailored to further a compelling government interest.” The court held that Section 5325(2) did not pass the strict scrutiny standard and hence the grandparents were not able to ask for custody. I suspect that there will be challenges forthcoming from parents that have initiated divorce proceedings but feel they can still make mutual decisions for their children without the grandparents being able to interfere.

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Back to School – Custody

Fall is on its way and the school year has begun. Now is a good time to review your custody agreement to ensure a smooth school year. Your schedule may have changed from the summer and you should make sure you and your children are familiar with the new schedule. If you have shared legal custody, you will need to consult with the other parent regarding any decisions concerning the children’s schools. If you have sole legal custody, you may still be under an obligation to keep the other parent informed and should refer to your custody order to double-check. It is generally a good idea to have a consensus about extracurricular activities for the children as well. If practices and games will occur on the other parent’s custodial time, you will need their cooperation in getting the children to their events.

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Decisions regarding healthcare should also be made with both parent’s involvement in a shared legal custody scenario. Physicals are often needed for participation in sports and both parents should be made aware of any scheduled doctor’s appointments. Ideally, both parents should be able to attend the children’s school events, such as back-to-school night, concerts, games, etc., however, if it there is a lot of discourse between the parents you should plan ahead as to which parent will attend which events to avoid unnecessary confrontation. It is a good idea to give your children’s school a copy of the custody agreement if you anticipate any issues with the other parent, such as trying to pick the child up from school if they are not authorized to do so.

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Divorced With Children: Issues You Need to Consider

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If you are seeking a divorce and you and your current spouse are parents you need to lay the foundation for a happy and healthy future for yourself and your children. When divorcing there are both emotional and financial issues to consider. Issues surrounding children can be extremely contentious during a divorce, but a skilled attorney can help bring together to start working on issues together for the sake of the children.

If you and the other parent can not agree, a family law judge will make final decisions for you. However, they work from the relevant facts of your case, applicable laws and what they feel is in the best interest of the children. It is best to keep your case out of court and work together for the sake of your children.

When children are involved in a divorce, there are two major areas to be understood and considered:

  1. Custody / Visitation

There is legal custody (which covers who can make important legal, health and educational decisions concerning a child) and physical custody (which concerns with whom the child will live, when and for how long). Normally legal custody is shared by the parents .

During our discussions on physical custody, we will discuss where the child is going to spend his/her time during regular times of the year, vacations and holidays. Physical custody can be join which both parents have equal time or one parent may have primary custody with the other parent having partial custody. In some instances there may be no overnights or supervised custody.

2. Child Support

Parents have a legal obligation to financially support their children but must file to receive it. How that is calculated is based on state guidelines. Generally the parent who does not have primary physical custody provides child support payments to the other parent and/or agrees to pay certain bills or expenses concerning the child.

It is important to create an environment dedicated to supporting your children so they remain stable long after the divorce is over.

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Updates to Rules of Civil Procedure

Several updates are being made to the rules as it relates to family law matters. Rule 1915.11, which addresses the appointment of an attorney for a child for a custody matter, now permits the court to apportion the costs for an attorney appointed for a child as the court deems appropriate.

Rule 1915.15 will be revised to ensure parties’ names and addresses are included in a petition to modify a custody order. Finally, Rule 1920.33 will feature changes to the format and requirements for inventories and pretrial statements for equitable distribution matters.

Other proposals for change include an update to the support guidelines and self-support reserve which has not been revised since 2013. The current self-support reserve is $931 reflecting the 2012 poverty level for one person. There is a proposal to Rule 1915.3-2, concerning criminal record or abuse history, to include a space to indicate any involvement with a child protective services agency or active juvenile cases. Lastly, the criminal record history would add columns for contempt of an Order under the Protection from Abuse Act, adjudication of dependency or delinquency and history of sexual violence or intimidation under the Protection of Victims of Sexual Violence and Intimidation Act.

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How Do I Enforce a Custody Agreement in a Divorce Settlement?

When we work with you on your divorce, your divorce settlement agreement will contain all the important issues facing you and your spouse including who has what type of custody. If your relationship breaks down and one party refuses to recognize the other parent’s custody rights, the aggrieved parent can try to have the agreement enforced in court.

A properly executed, final divorce agreement is binding on the parties. It’s normally incorporated into the final divorce decree so that it will be as enforceable as any other court order. After your divorce the family courts retain the ability to enforce that judgment as long as necessary.

When you have problems it is important to know that there is a formal procedure to follow to have a custody arrangement enforced immediately. Yes, you can call the police, but do you really want your children to see that circus? To most effectively enforce the agreement we need to get in front of a judge if your spouse is being uncooperative.

An enforcement hearing is normally a much more simple legal proceeding compared to the entire divorce case with all the many issues it involves. At issue will be whether the agreement is valid and enforceable and if so whether it was violated or not. If so, the court needs create an order to enforce the agreement.

A motion to enforce the agreement would be filed with the family court. It explains the situation and discusses what terms of the agreement or prior court order was not complied with. After it’s filed the court will set a hearing date for the motion. If there are disputed issues of material fact a hearing will be scheduled. At the hearing both sides can present evidence to support their side of the story. The judge considers the evidence and legal arguments and issues a decision.

If the former spouses have a difficult relationship child custody issues and all the emotions that come with them can turn a bad situation much worse. Like all other divorce issues it’s best to try to negotiate a resolution to disagreements over custody but ultimately an aggrieved parent being denied his or her custody rights can try to bring the issue to a close with a court order.

If you have questions about child custody or feel your rights to the custody of your child have been violated, contact our office so we can talk about your situation, how the law may apply and what can be done to protect your interests and those of your child.

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Third Party Custody Rights

Parties other than parents and grandparents may be able to file for custody. Section 5324 of the Pennsylvania Domestic Relations laws discusses standing for any form of custody. A person who stands in loco parentis may be able to obtain custody. In loco parentis status has been interpreted to mean an assumption of parental status as well as an actual discharge of parental duties giving rise to a relationship which is the same as between parent and child. You must be able to establish more than just a frequent care-taker role. New Jersey allows other parties to file for custody if they have become a “psychological” or de facto parent. This person must have established a relationship with the child with consent of one of the parents, be living with the child, have taken on all responsibility for the child, and have developed a meaningful relationship.

If a party has established they are a “parent” under the applicable statute, any custody matter then proceeds as usual with an analysis of the best interests of the child. If a party has not met the requirements to be designated as a “parent,” they may still be able to request custody in NJ. The party must prove there is gross misconduct, neglect or exceptional circumstances affecting the welfare of the child. If that is proven, the then court shall consider if awarding custody to the third party would promote the best interests of the child. The initial inquiry is a tough to prove. This is due to a presumption that the parents should have custody and the state’s position in protecting the constitutional rights of parents as it relates to autonomy over their own children.

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Supervised Custody

23 Pa. C.S. 5322 defines all the different variations of custody. Physical custody is defined as “the actual physical possession and control of a child.” Physical custody can be supervised if warranted. Generally, the court is considering if the welfare and safety of the child necessitates supervision. If supervision is deemed to be necessary, you have to establish who would supervise the custody time be it an agency of the court, one of the parties involved, or a third party. If using a third party, that person should acquire an understanding of the responsibilities of serving as a supervisor and what types of behavior are not permitted.

Philadelphia County provides for court-sponsored supervision in the Family Court building located at 1501 Arch Street. Parties may utilize the program on Sundays. Parties must bring their court orders for each scheduled visitation. Bucks County has two independent programs that provide supervision for custody matters: Kids First and the Assurance Group. Both programs offer professional supervision for a fee. This would eliminate the need for parties to pick other family members or friends as supervisors when they potentially don’t want to be involved in the custody matter. The programs are also helpful in that reports are generated detailing what occurs at the visits which can be referred to in future custody proceedings.

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Summer Schedules

Now that warm weather is here and the school year is coming to a close, you may want to review your custody agreement to prepare for the summer months. Your standard schedule may change when the school year is over and you should make plans for that adjustment to go smoothly. If you have shared custody, you will need to consult with the other parent regarding what the children will do for the summer, for example, a certain camp or summer program. Additionally, summer is a popular season for vacations. Often, you must provide advance notice of any scheduled vacation to the other parent. 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.

You should refer to the specific provisions of your custody order as it relates to 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. Parents should also be careful with planning international travel. Often, express written permission of the other parent or court approval is necessary for travel outside of the country. Both parents would need to sign off on any passports for minor children unless there is a court order.

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Helping Your Children Move Between Two Homes

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When you divorce with children, you are going to have to transition them between two homes. For a minor child of any age, this can be not only traumatic when it starts but also feel like a constant state of flux. It is critical that you children know they are loved by both parents, have space in your home, and are made to feel comfortable. How can you make this as easy as possible for them? Make sure you have duplicate supplies, take some responsibility, and be reasonable when they forget important items from one home.

Have duplicate supplies
Cosmetics for teenage girls, graphing calculators, clothing, or soccer balls – making sure each house has favorite and necessary items can be important. While this may seem redundant, having certain items in each home will ease the burden of packing on the child and anxiety that they might forget something important. While this can cost you a few extra dollars the comfort it provides to your child can be invaluable. If your child wears a uniform to school, make sure you each a set at your home including any shoes. You may even want to ask if you can get two uniforms if your child is in sports.

Put the burden on the parents
While living in two homes is common these days, it is not your child’s fault they have to move back and forth so make sure that you do the heavy lifting for them. Help them pack, maybe develop a list for them to use, and offer to pack the car with them. If they are switching homes after school coordinate with the other parent to ensure you can drop-off or pick-up their belongings.

Be reasonable when they forget necessary items.
When your child leaves a textbook or snow boots at the other parent’s house remain calm. While children of divorced parents tend to be more organized due to the moving around they are still young and will forget every once in awhile. They also need to feel that you will help them have the items that they need for their day. If you have a problem with textbooks contact the teachers – they are usually happy to provide extra copies.

Having to move belongings on a regular basis can be troublesome for some kids. While you and your ex may both provide loving environments, remember it is not your child’s fault they have to travel between two homes. Going out of your way to make them feel comfortable and helping also negotiate packing will help. Children crave a stable environment and parents should do what they can to provide that for them.

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