Tag Archive for: custody

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).

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Paternity by Estoppel

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. However, even in the absence of a biological connection, paternity may be established. Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child. The Pennsylvania Supreme Court has held that the purpose of paternity by estoppel is to keep families intact and protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family.

In the case of K.E.M. v. P.C.S., 38 A.3d 798 (Pa 2012), Appellant, mother of G.L.M., brought an action for support against Appellee, the alleged father of G.L.M. Appellant was married to H.M.M. at the time G.L.M. was born. Further, H.M.M. had supported the child and acted as a father figure to G.L.M. for most of the child’s life. Appellee filed a motion to dismiss the support action on the basis of a presumption of paternity on the part of H.M.M. and paternity by estoppel. Appellee’s argument that H.M.M. had acted as G.L.M.’s father prompted the lower court and Superior Court to grant his motion to dismiss the support action against him and continue to hold H.M.M. responsible for G.L.M.’s support. In this case, H.M.M. submitted to a paternity test which ruled him out as the father, however, on appeal the court found it was in the child’s best interests to still recognize Apellant’s husband, H.M.M., as the father.

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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.

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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.

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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.”

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Facts about Emancipation

There is no emancipation statute in Pennsylvania and cases are determined on a case-by-case basis looking at the facts. The key factor is if the minor child has already established independence. This would include financially supporting themselves and living apart from their parent or guardian. Any judicial determination is not permanent and can be revoked if the circumstances change. Further, it is not enough for a minor child to point to an intent to live independently. Instead, they must already evidence their independent status prior to a formal determination. Marriage and enrollment in the military usually favor an emancipated determination though the same criteria should still be considered regarding independence. Overall, it is a very hard legal standard to reach.
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In most cases, you will find a judicial determination isn’t needed. Administrative agencies can make their own determination regarding a minor’s status. For example, the Department of Public Welfare would make that determination for a minor applying for public assistance. A school district can make that decision for a minor child attending one of their schools. Emancipated status is always for a specific and limited purpose. Examples of the most popular purposes include medical consent, ability to sign legally binding contracts (e.g. a lease), receipt of public benefits, and school enrollment. There is no general emancipated status that would give a minor all the same rights as an adult.

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What is a true shared custody arrangement?

When parents divorce with children, the children need a schedule when they will spend time with each parent.  Courts seem to be moving more towards a shared custody arrangement so that both parents can actively participate in the children’s lives.  A true 50/50 custody schedule is when both parents have equal overnights in a two week period.  This schedule can take many forms, from alternating weeks, to alternating every two weekdays with a long weekend, to three set nights with one parent each week and alternating one night every other week. There are many different ways to arrange it so that each parent has seven nights in a two week period.  As in any custody case, it is whatever is in the best interest of the children.  When there is a true 50/50 custody schedule, the children are able to attend school in either parent’s school district since there is no primary custodian, however, the parties have to decide or the court will decide which school district they will attend.  

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Child Support when Custody is Shared

When parties have an equal custodial arrangement, meaning that they share overnights on an equal basis, seven nights in a two week period with one parent and seven nights with the other, there is still the possibility of a child support order. The party who earns more money will be obligated to pay support. If, however, there is a cost for health insurance, this amount will be factored into the guideline calculation. Any cost for daycare or after school expenses will also be factored into the equation. These costs can be significant and can greatly impact who gets paid and what amount. It is a good idea to always get a rough estimate on child support before going to court over these issues.

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Where do I file for Child Custody?

Jurisdiction for child custody is wherever the child has lived for the past six months. If, however, you already have a court order, the court may have retained jurisdiction of the custody order if one of the parties still lives in that jurisdiction. If no party has lived in any jurisdiction for at least six months, you must look at the state that has the closest ties to the child and see if that Court will exercise jurisdiction. The reason a court exercises jurisdiction where the child resides is because that state and county will have the best available information regarding the child, including education, living conditions, etc. all of which are relevant in determining custody of the child. Within a state, you should file in the county where the child resides.

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Changes to the Custody Order by Agreement

The purpose of a custody order is to provide both parties with a schedule on when they have their children and no longer live in the same home. This eliminates any confusion for everyone involved, including the parents, children, teachers, coaches and others who may need to know who is supposed to pick up a child and when. This is why schools require that a custody order be on file with the school. A custody order is not only a useful tool to help everyone know when they are supposed to have the children but also it guarantees time that both parents get to spend with the child or be held in contempt. With this said, however, there are times when both parents may want to deviate from this schedule by agreement. If BOTH parties are agreeable to change anything in the custody schedule, you do not have to go back to court to do so unless you want to make it a permanent, guaranteed changed. If both parties agree to make changes, it is best but not necessary to put it in writing. It is encouraged that parties work with each other as custody orders cannot contemplate every single thing that may arise such as a wedding, party, or other event that flexibility may need to be used. Parties can always give each other extra time, makeup time, agree to switch days, etc. by agreement regardless of what the custody order says as long as both parties agree.

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