How is Custody Decided?

If you have children, and are going through a divorce or separation a major thought on your mind is probably what is going to happen with the kids? Who is going to get custody? How is custody decided? What are the different types of custody schedules? These are all very valid and important questions and I know these thoughts can cause anxiety, fear and worry as well. This will give you a little overview on how custody in Pennsylvania is decided to inform you of more information and try and answer some of your questions.

There are several factors that the courts in Pennsylvania consider when deciding on custody. The standard the court uses to determine overall is the best interest of the child. The court will always consider what is in the best interest of the child when determining custody. Using the standard of the best interest of the child there are 16 factors that the court will look to when trying to determine custody. The following are the 16 factors the court will use look to:

  • Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
    • They will look which parent actively promotes a relationship with the other parent. The courts do not like to see that one parent is preventing or intentionally hurting the relationship between the other parent and child.
  • 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.
  • The parental duties performed by each party on behalf of the child.
    • They will look at who takes them to school, helps with homework, schedules and takes them to doctor’s appointments. Basically what the parties do for parental duties.
  • The need for stability and continuity in the child’s education, family life, and community life.
  • The availability of extended family.
  • The child’s sibling relationships.
  • The well reasoned preference of the child.
    • Depending on the child’s age and maturity a Court may consider their opinion as part of the decision. The decision will not solely be based on the opinion or preference of the child but could be considered.
  • The attempts of a parent to turn the child against the other parent, except in the cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
  • Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
  • Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
  • The proximity of the residences of the parties.
  • Each party’s availability to care for the child or ability to make appropriate child care arrangements.
  • The level of conflict between the parties and the willingness and abilities 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.
  • The history of drug or alcohol abuse of a party or member’s of a party’s household.
  • The mental and physical condition of a party or member of party’s household.
  • Any other relevant factors.
    • The Court will consider any other relevant factors in order to determine what is in the best interest of the child.

These sixteen factors are what the Court considers when determining custody of a minor child. At a hearing evidence is presented and a Judge will consider that evidence with these sixteen factors. If you find yourself in a custody situation in Bucks County and need representation please call our firm today to schedule your free consultation.

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Types of Custody

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If you have children, and are going through a divorce or separation a major thought on your mind is probably what is going to happen with the kids? Who is going to get custody? How is custody decided? What are the different types of custody schedules? These are all very valid and important questions and I know these thoughts can cause anxiety, fear and worry as well. This will give you a little overview on the types of custody in Pennsylvania to try inform you of more information and try and answer some of your questions.

First of all, there are two types of custody. There is legal custody and physical custody. Legal custody is the right to make decisions for child. Decisions such as where your child attends school, what doctors your child sees, if they are involved in any religious activities are all examples of what would fall under the category of legal custody. Usually legal custody is shared between parents, however in some circumstances legal custody may be solely awarded to one parent.

Next, there is physical custody. Physical custody refers to who the child is physically with. Typically, in any court order there would be an included physical custody schedule. The first kind of physical custody is sole physical custody. This is where one parent has physical custody of the child 100% of the time. Another form of physical custody is shared legal custody where parents share physical custody time. The two common schedules with shared physical custody are 50/50 or a primary/partial schedule. In a 50/50 physical custody schedule the parents share custody and each have the child 50% of the time. A common schedule for this is called a 2, 2, 3 schedule where one parent has the child Monday and Tuesday night, the other parent Wednesday and Thursday night and then the parents alternate week to week who has the child Friday through Sunday. There are other schedules that can be worked out as well. With a primary/partial schedule this is where one parent has physical custody time more than the other. An example of this type of schedule would be where one parent has custody every other weekend. A third custody arrangement could also be supervised visitation. This would mean that one parent would have custody of the child however the other parent has the right to visit with the child so long as they are properly supervised.

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What Happens If My Protection from Abuse Order is Violated?

Being in an abusive relationship is very scary, stressful and difficult. You may have found yourself in an abusive relationship suffering from abuse from your partner, either physically, mentally or emotionally. If you are in an abusive relationship you can and should seek protection from the court. A Protection from Abuse order (PFA) is an order from the court that orders the abuser to have no contact with you. These orders can last anywhere up to 36 months. If you are in an abusive relationship and seek protection, a PFA is a way to get peace of mind that your abuser will stay away from you.

You may be wondering, even if you get a PFA your abuser might not follow it. What happens then? If the person you have a PFA against in any way violates any part of the order they could be found in contempt. You would want to file a contempt complaint with the court. That person would then be ordered to a hearing about the contempt where testimony could be presented regarding the particular contempt violation. The consequences for a contempt violation vary on the seriousness of the violation in particular. Those consequences range from extension of the PFA, fines, and incarceration.  by Meghan Fleming

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What is CYS?

All parents dread being contacted by Children and Youth/DHS. It is the dread of a stranger misunderstanding or misinterpreting a situation they observe. There are a couple of things everyone must understand. The concept of mandatory reporters. There are certain professions, such as teachers, doctors, nurses, and therapist, that are licensed by the state. They are required by law to report even the suspicion of child abuse/neglect. If they fail to report, they could end up losing their license to do the job they love. Therefore, the mandatory is more likely to air on the side of caution and report.

The next thing to know is that Children and Youth is required by law to investigate any complaint made. When they investigate, they will talk to all the parties involved. They will want to speak to the child (age dependent) and the parents. They will also want to see the residence to make sure it is appropriate living space for a child. You are not required to allow them to enter your house or to speak to them until there is a court order saying otherwise. However, it is not recommended that you take this adversarial stance. They will assume you are doing so because you have something to hide. Once the Courts are involved with an Order, the process escalates into something much more If you are contacted by Children and Youth/DHS, immediately contact an attorney to discuss the best way to handle the situation.  by Russell Manning

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Who Pays Child Support?

If you are going through a situation involving the custody of your children, you may be wondering who has to pay child support. Both you and the other parent have a financial obligation to support your children. The type of custody arrangement between you and the other parent, whether by agreement or Order of the Court, will determine who pays child support. If you have a 50/50 custody schedule, then the parent that makes more money will likely be the one paying, but at a discounted rate. If you have primary custody of the child/children, then the parent who has partial custody will be obligated to pay child support. However, if the parent that has partial custody has the child overnight for more than 40% of the time (6 overnights over the course of a 14 day schedule), then the parent will be entitled to a discount of the amount of child support they have to pay. When seeking child support from the other parent it is best to get a Court Order to ensure that the payments come in. An Order from the court can provide you some assurance that the money you are relying on to help care for your children won’t suddenly disappear one day.

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What is the Process of Filing for Protection from Abuse?

Do you find yourself in an abusive relationship? This situation can be very difficult and scary for the person suffering from the abuse. Abuse can come in several different forms. It can be verbal and threatening to the point where you are terrified of what will happen next. Verbal abuse can be very scary as threats and harassment can make you fearful of what comes next. In other situations, the abuse can be physical where you are being physically harmed by your partner. This is a very scary situation that many people can find themselves in. You might be scared that you cannot do anything to stop the abuse, or worried about what will happen if you try. You do not and should not remain in an abusive situation and you can protect yourself by filing for a protection from abuse (PFA) order with the court.

When you file for a PFA a Judge will normally grant a temporary order that orders the abuser to stay away from you until you both can appear in front of a Judge at a hearing. On the day of the hearing an agreement will try to be reached between the parties where there are agreed upon terms regarding the abuser having no contact. If no agreement is reached, a hearing will be conducted in front of the Judge where he will decide what the order will be going forward. A PFA order can be put in place for any duration up to 36 months. If you are in an abusive situation and seek protection you should file for a PFA so that you can start living your life without the fear that you have been experiencing.

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Grandparent Standing for Custody/Visitation

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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 AND don’t agree on whether the grandparent or great-grandparent should have custody/visitation; 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.

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. 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. It is also possible for grandparents to request primary custody under Section 5324 of the Domestic Relations laws if they stand in loco parentis to the child. Again, in loco parentis means more than just taking on a frequent caretaker position. Under Section 5324, a grandparent can also file where they are unable to establish in loco parentis but can establish an existing relationship with the child and that the child is at risk due to parental abuse, neglect, or drug/alcohol abuse.

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Grandparent Custody Rights

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Sections 5324 and 5325 of the Domestic Relations statute sets out the circumstances under which grandparents and great-grandparents may petition for custody/visitation. Section 5324 deals with partial custody or visitation and requires that at least one of three conditions be met: (1) a parent of the child is deceased; (2) the parents of the child have been separated for at least six months and do not agree on partial custody/visitation to a grandparent or great-grandparent; 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.

Section 5325 deals with standing to request primary physical custody as well as legal custody. Grandparents must establish 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. After establishing standing, the best interests analysis that is conducted in all custody cases still applies and the court must weigh all relevant factors. Section 5328(c), concerning custody awards to grandparents and great-grandparents, requires the court to specifically consider amount of personal contact between the child and the grandparent prior to filing and whether an award of custody to a grandparent or great-grandparent would interfere with any parent-child relationship.

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Do I Need a Child Support Order?

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When two people have a child together, whether married or not, sometimes it just does not work out and they decide to separate. It is great when two parents who are no longer together have a strong co parenting relationship and can remain amicable with each other for the sake of their children. If you find yourself in one of those relationships you might think that you do not need a child support order because you and the other parent work everything out on your own and so far you have had no issues. While it may seem great that you are able to work everything out between the two of you, it is best to seek a child support order issued by the court.

Why would you want to get a child support order when you have been working it out yourselves? What happens if the payments that you have relied on and worked out between you two stop coming in. What course of action do you have? You call the other parent, you email them but no matter what you do they still are not receiving any financial assistance for your child. They keep telling you they will have it to you soon and then months go by and you have not received anything. By having a child support order you are protecting yourself from this scenario. In most child support orders, if the other parent is a W-2 employee, the child support will be attached to the other parent’s wages so as long as they are being paid you can be assured you will get your support payment. If there is an order and the payments are made directly to you and they stop paying you have options there as well if you have a support order. You can file for enforcement of the child support payments. Having a child support order protects and reassures you that the financial support you rely on for your child will not just disappear one day.

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Desperate for Divorce but Worried about Abuse?

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If you are currently married and in a physically or mentally abusive relationship, it can be a very tarrying situation that you might be desperate to get out of. You might be thinking of leaving or filing for divorce but have that voice in your head telling you it is not a good idea because of the potential reaction from your spouse. What if filing for the divorce causes the abuse to escalate when they find out? If your spouse already has a history of abuse towards you, the fear you have might take over and prevent you from following through with the decision to follow through with filing for divorce, and separating from them finally.

If there is a history of abuse you can file a petition for a Protection from Abuse Order while you prepare to file for divorce. To get a protection from abuse order you would first want to file with the court. Then likely, a Judge would issue a temporary order without the abuser being present while a future hearing date is scheduled. Both you and the abuser would then have to appear before a Judge at the later date. At this hearing either the abuser can consent to the Protection Order, or request to have a hearing where the Judge would hear testimony and make an order. These types of orders can last for any duration of time up to 36 months. If the abuser were to violate any such order they would be held in contempt. Consequences of a contempt violation can range from fines to jail time. When you are in an abusive marriage and desperate to get out but just fearful of what will happen if you try, a Protection from Abuse order can grant you that peace of mind to be able to file and get divorced with added protection from your abuser’s potential reaction.

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