Child Custody Archives

Grandparent Custody 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.

It is also possible for grandparents to request any form of custody under Section 5324 of the Domestic Relations laws. Grandparents may request any form of custody if the relationship began with the consent of the parents, they are willing to assume responsibility for the child and the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity.

Peters v. Costello, 586 Pa. 102 (2005), was a Pennsylvania Supreme Court case which determined that non-biological grandparents also have the right to seek grandparent visitation rights where they stand in loco parentis to one of the parents of the child and it’s in the child’s best interest. The court went on to explain that the statute conferring the right of grandparents to seek custody is not restricted to biological grandparents.

In loco parentis embodies 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. In Peters, there was testimony that the grandparents raised the mother, the mother and child had lived with them for several years, they had a close relationship with child and spent time with her including birthdays and holidays, and neither parent had previously objected to their de facto grandparental relationship with the child.

Make Time with Your Children Special

For years we have heard about the importance of spending “quality time” with our children. When you are divorced and following a custody schedule (sometimes called a parenting time schedule) you may feel you have to create special moments in every day you have your kids. Settinging the expectations of constant magical moments when your children are in your care is unrealistic. It is important to establish routines, new traditions, and allow your children to grow up in a supportive environment.

Children love routines. Make sure you run your home to ensure they can settle into a schedule as they arrive. This includes where they put their bookbag, what time dinner is served, and when they should make their lunch. The familiarity when they are with you will be a comfort to them and allow them to ease into your home when they spend time with you.

Traditions are important for children so bring forward into your post-divorce life a few from the past and also create some new special memories. This may include establishing Sunday dinner when everyone gathers to help cook, an annual ski trip, visiting the Shady Brook Farms light display, or watching Fourth of July fireworks together. These traditions do not need to be elaborate or expensive. In fact, sometimes the sillier and simpler the better remembered.

As your children age they will start to establish their own lives with friends, dating, and sports schedules. There will be times when you feel you barely see them as they have another game, a date, or want to sleep over at a friend’s house. This will take them away from you during “your parenting time” and you may feel it is unfair since you already have limited time with them. However, realizing that this is a natural part of growing up and not making them feel guilty is imperative to their emotional well-being. Support them and enjoy the time when they are with you. Establish those traditions, like family dinners that they will cherish and soon enough you will find that they are older and actually want to spend time with you again.

There are many adjustments when you divorce. Spending less time with your children is a hard one that takes some to settle into. However, if you are steadfast in providing a loving home and committed to making memories you will undoubtedly enjoy your time with your children and watching them grow.

International Custody Cases

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International custody cases raise issues of both jurisdiction as well as subsequent enforcement. For cases beginning in the U.S., the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) likely applies. The UCCJEA gives jurisdiction for a custody matter to the home county of the child. This would be the county where the child has resided for six (6) months prior to the commencement of the custody action. 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.

Enforcement of a custody order is addressed by the Hague Convention on the Civil Aspects of International Child Abduction. Signatories to the Hague Convention are required to immediately return children if taken or retained in violation of a custody order. All countries who are parties to the Hague Convention must establish a “Central Authority,” an office responsible for dealing with Hague Convention violations. For children removed from the United States, a petition for return should be filed through the U.S. State Department, Office of Children’s Issues. From there, the petition is transmitted to the Central Authority for the other country involved and ultimately adjudicated there. It is important to begin the process as soon as a violation occurs for the best likelihood of having the child returned.

Shared or Joint Custody

There are two types of custody, legal and physical. In most instances, legal custody or the major decision making process and access to information is joint or shared. When people talk about shared or joint custody, they are usually referring to the physical schedule, i.e., where the child spends his or her time. The terms shared and joint are used interchangeably and mean that the child spends equal time in both parties’ homes. There are various schedules that could be construed in as a shared or joint custody schedule. Common schedules are week to week, rotating on the same day of the week, or two set week nights in one week and alternating the weekend as a Friday to Monday morning. These are not the only options, however, and parties need to look at their particular situation if they are attempting to come up with a joint schedule. It is important to look at maximizing the quality of time each parent has by considering work schedules of the parents and activities of the child as well as the distance between the two homes. As courts seem to be moving more towards a joint or shared custody schedule and away from one primary home, it is wise to explore all different possible scenarios for the best interest of the child.

When is it a 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.” This definition allows some room for interpretation on when it is necessary to request relocation. Some obvious examples would include a move which would potentially require a flight or at least several hours driving. If you had a schedule with a mid-week dinner visit or overnight, it would be impractical to travel that distance every time.

However, many moves are a much shorter distance and it can be argued that there is not significant impact on the existing custody order. Nonetheless, you may still find that the courts expect a relocation petition. For example, what if you only move ten minutes away from where you live now; does this count as a relocation? Here are a few scenarios which may weigh in favor of still classifying the move as a relocation and following the relocation protocol in 23 PA C.S. 5337: (1) Across state lines (2) Across county lines (3) A different school district. When in doubt, it is better to err on the side of caution and request relocation. In C.M.K. v. K.E.M., the court held that the mere fact of filing for relocation does not support a presumption that the requested move is in fact a relocation and the parties can still litigate if the move does significantly impact the other parent’s custodial rights. 45 A.3d 417, 425-426 (Pa.Super. 2012).

Benefits of Mediation in Law

Mediation is a neutral and voluntary process wherein two or more parties that have a dispute meet with a mediator who facilitates the meeting in an attempt to come to an agreement and keep the matter out of court. A mediator does not have to be an attorney. Oftentimes, counselors receive training in mediation as well. It is important to keep in mind that if an attorney is a mediator, they cannot give you legal advice since they are a neutral party. For this reason, some people also keep an attorney for legal advice while going through mediation. The benefit of mediation is that it often can resolve issues or at least narrows down the issues in dispute. This is helpful in the legal setting so that only money is spent litigating a very focused issue, if needed. If an agreement is reached in mediation, it can be drafted and signed by the mediator or it can then be taken to an attorney to review. Agreements that are reached in mediation not only help keep costs down, but they also help to keep the relationship more amicable since both parties have had input in coming to the agreement.

Discovery in Custody

Discovery is the process of obtaining information from the opposing party in the course of a lawsuit. Discovery is governed by the Pennsylvania Rules of Civil Procedure (Pa. R.C.P.). Rule 1930.5 states that there shall be no discovery in a simple support, custody or Protection from Abuse proceeding unless authorized by court. In order for you to be allowed to send discovery in a custody matter, you must get permission from the court. If a request for discovery is granted, discovery would then proceed as in any other matter.

Formal discovery methods include interrogatories, depositions, production requests, subpoenas to produce things and/or documents, and/or requests for admission. Interrogatories and production request are the most frequent methods of discovery in family law cases. Interrogatories are a written set of questions for the other party to answer. A production request lists all the documents a party is seeking. Subpoenas are a good tool when it is necessary to get information directly from the source in the instance a party does not have it, will not cooperate in turning it over, or you suspect they may tamper with the documentation. Examples of relevant documentation to seek in a custody matter may include health care records for the children and/or the other parent, academic records, any prior evaluations completed, expert reports, criminal records of the other parent, and information on potential witnesses.

Breast feeding in Custody Disputes

Breast-feeding alone is not a reason to grant custody to the Mother over the Father in a custody dispute. In J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super. 2011), the court granted Mother primary physical custody based exclusively on the fact that the parties had poor communication and Mother continued to breast feed the child. Father was subsequently able to successfully appeal the trial court’s order. Father pointed out the court’s failure to consider all the factors as listed under Section 5328 of the custody statutes. Section 5328 mandates that courts consider all of the listed factors relating to the best interests of the child when entering a custody order.

The relevant factors for consideration include the following: (1) which party is more likely to promote a continued relationship with the other parent; (2) any present or past abuse within the respective households; (3) parental duties performed by each parent; (4) need for stability in the child’s education, family life, and community; (5) extended family relationships; (6) sibling relationships; (7) preference of the child if mature enough to offer; (8) attempts to withhold the child or poison relationship with other parent; (9) which party is more likely to foster a loving, consistent, nurturing environment; (10) which party is more likely to attend to the daily and special needs of the child; (11) proximity of residences; (12) actual availability to care for child or ability to make alternate arrangements; (13) level of conflict between parents and/or ability to co-parent; (14) present or past drug or alcohol abuse; (15) present or past mental or physical health concerns; (16) any other relevant factor. Criminal background is also relevant for all adult household members. The procedural requirements now mandate each party to submit a criminal history verification at the onset of a custody matter as well.

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.”