Tag Archive for: custody

Consequences of Custody Contempt

23 Pa. C.S. 5323 (f) provides that any custody order should have sufficient detail to enable the parties to understand what they are obligated to do and for law enforcement authorities to be able to assist in enforcement where appropriate. Section (g) discusses the consequences for violation of an established custody order. “A party who willfully fails to comply with any custody order may be adjudged in contempt. Contempt shall be punishable by any one or more of the following: (i) imprisonment for a period not more than six months; (ii) a fine of not more than $500; (iii) probation for a period of not more than six months; (iv) an order for nonrenewal, suspension or denial of operating privilege; and/or (iv) counsel fees.” 23 PA. C.S. 5323 (g).

As the statute is worded, every technical violation of a custody order should not be punished as contempt. Instead, the statute refers to parties who willfully fail to comply. This would suggest a showing of bad faith on the part of the non-compliant party. There are last minute changes or emergencies that occur in life which could disrupt a custody schedule. Infrequent instances would not be grounds for the punishment contemplated by the statute. However, parties who frequently and repeatedly disobey the court order may face some of the sanctions provided. Counsel fees are a popular sanction where the parties are represented with imprisonment being the most extreme sanction for a custody matter.

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No jury trials for custody or divorce cases

Many people who are going through a divorce or custody case are unfamiliar with the court system and what to expect unless they have had friends or family who already went through the process. In most family law cases, there are several levels of proceedings. In Pennsylvania, custody, support and divorce issues are usually heard separately and all usually involve a lower level proceeding before a trial. One thing you do not see in family law cases is a trial by a jury. If you go to court for divorce, or custody or support, and you do not resolve your case at the lower level proceedings, you will have what is called a bench trial. This is very similar to the trials you see on television, as you will have witnesses testify under oath on the stand. The same rules of evidence and procedure also apply. As a party you will also testify under oath. Your case, however, will be decided by one person, the Judge. In criminal matters and even in civil cases, you can opt for a bench trial instead of a jury, but in family law cases, you do not have this choice. You will always have a bench trial. One person will decide the outcome of your case.

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Holidays and Custody

When it comes to holidays and custody, the courts generally will alternate the holidays so that one parent has the children in even years and the other parent has the children in odd years. Easter is usually only considered as a Sunday holiday not an overnight the night before. It is important, however, to always think about the children and parents can always design their own holiday schedule instead of leaving it up to the Courts. If both parties enjoy having Easter morning with baskets, you may want to alternate the Saturday into the Sunday. You may also want to split the day much like you with Christmas so that one parent has the night before and morning the other parent has the other half of the day into the next morning. Even children who do not have parents who are divorced are often shuffled on holidays between homes of in-laws, other relatives, etc. It is important to think about the children and what is in their best interests. When is it is not practical to share the holiday, a good alternative would be to Skype or facetime with the other party and family so that they can share in the celebration by video.

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Typical Child Custody Schedule for Holidays

In any childs custody case, it is best if the parties design their own custody schedule so that they have more control over the personal considerations in each of their families as well as to include some days that may not be considered an official holiday for court custody purposes. When, however, communication has broken down and it is not possible to come to an agreement even on holidays, the court will often in both New Jersey and Pennsylvania have a routine method of determining holidays. In some counties, it is a pre-printed holiday list that the parties will receive. In others, it is a generally conceived concept. In most cases, the court will alternate holidays on an odd year/even year basis rotating the holiday every year so both parents will have time alternating years. For some holidays, such as Christmas, the court will usually break the holiday into two parts. One parent will have Christmas Eve until Christmas Day and the other parent will have Christmas Day until the Day after and this will alternate each year to allow both parents the opportunity to have Christmas morning every other year.

Some of the holidays that the Court often does not include are Halloween, birthdays of the children and birthdays of the parents. They often do not consider July 4th into the next day or after fireworks. They do not consider the Memorial Day or Labor Day as a full weekend. They usually do not split Thanksgiving in half which is possible if the parties agree to share the day. This is why it is so important that parents work together to communicate and agree to holidays rather than have a court decide how to divide the holidays. Sometimes one parent works on holidays and it makes sense the other parent should have the children but if you do not come to an agreement, this is not likely to happen. It is best if you are going through custody, not only to work out a schedule for your children but to really think about how your families structure and celebrate the holidays to make it best for the children.

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Ways to Stay Connecting in Custody Cases

One of the sad realities of divorcing when you have children is that there will be times when they will not be with you, sometimes, large periods of time if you are the parent with partial custody or even when you share joint physical custody. Sometimes, grandparents are also faced with separation from grandchildren due to divorce, death of their adult child, or incarceration of their adult child. Although you cannot always be with your child or grandchild, there are things that you can do to ensure that you are still connected to their life on a regular basis.

One of the greatest outcomes of improved technology is the ability to communicate in real time by way of video conferencing. If you and your loved one has an iphone, you can facetime over your phone. This allows you to see the other person over your phone which provides as greater sense of connection. Just today, I was able to facetime with my sister who was on a mountain skiing and I was able to watch my six year old niece ski with her dad for the first time. Although I was miles away, I was able to witness this event at the time it was happening. How amazing is that? I realize that not everyone has an iphone or can afford an iphone. If you can, it is an incredible tool for staying connected. It is very easy to use, so much so that even my three year old son is able to pick up the phone and facetime with his grandmother without me doing anything. It may require a little bit of effort in placing a photo of the person next to their facetime number, but once it set up, it is ready to go.

Another option would be to SKYPE. This requires access to a computer on both ends and the program downloaded on each computer. This a popular way of videoconferencing in Europe and is equally valuable here. You can communicate by video with your loved one but you will have to coordinate so that you are both online at the same time.

If you are not able to communicate through video, you can stay connected through other ways such as text messaging, phone calls,  facebook, other social media applications, sending letters in the mail, showing up for public events that the child may be involved in.  These are the traditional ways of communicating and they work great as long as you put the effort in to staying connected.

There are many opportunities to connect if you make the effort. If the other parent is placing obstacles in your path, you may need to get the terms set forth in writing in a custody order as to your rights on using these means to stay connected. If you work together, you can, however, create an opportunity for both parents to be very involved and connected regardless of where the child physically lives.

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Living Together During Divorce

Sometimes when parties are divorcing, they continue to reside together under one roof while the divorce is pending. This can be the situation for many reasons. One reason may be that neither party has sufficient income to live on their own. It may be that all their funds are tied up into the house and they do not have a significant payment to put down on another residence. Sometimes, they both want to keep the house in the divorce. In others, it may be that neither wants to move out when there are children involved. Whatever the reason, it can be very difficult to live together while the you are divorcing and setting some ground rules may be in order.

When you have children and are in the process of divorce, it is best that you try to maintain a stable home environment for the children. Do not start dating and bringing your new partner into the home to visit while you are still living with your spouse. It can be confusing for the children and can lead to conflict. Likewise, do not bring other families into the home to live unless your spouse agrees. This can lead to an action in Special Relief to try to evict you and your unwanted guests. In addition, keep your arguments out of the earshot of the children. If you need to address things that stir emotions, put it in writing to your spouse or create a space in your home away from the children where you can go to talk.

Sometimes when you are living together while divorcing, it is not a bad idea to try to create a custody schedule if you have children. This allows you to test out what may work or not work in the future when you eventually do separate. It does not mean you have to leave or not see your children when you are in the home together but you may want to set up rules on responsibility for the children on particular nights and weekends, which may involve all the care for the children, from cooking, to dressing, feeding, bathing, etc. so you have a trial run before you actually physically separate.

Financially, many parties who live together while they are divorcing continue to manage their household expenses as they did when they were not divorcing. This seems to lead to less conflict in the home. You can still and should establish your own separate account so that any excess funds you generate from your own work can be deposited into that account. You may want to deposit your earnings in your separate account and transfer money into your household account to pay the bills. Any money you earn after separation that you keep separate will not be considered in the divorce. You definitely want to close joint credit cards unless they are used strictly to pay household expenses.

While it may not be ideal to be getting divorced and still living together, it can be easier when you set up rules that both parties follow.

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Dating During and After the Divorce

When you are going through a divorce, you may wonder whether you should be dating and if you do how it will impact your case. Once you are separated, even though the divorce is not yet final, you are permitted to date without it being considered grounds for adultery in the legal arena. While adultery is a factor in the consideration of an award of alimony, it refers to relationships that began prior to a separation not after. Once a divorce complaint is filed you are clearly separated and for some that may now involve the choice to date. If you are entitled to support or alimony, you may date both during the divorce or afterwards. As long as you do not cohabitate, it will not affect your alimony award. Cohabitation can be found even if the other person has their own residence if they spend significant overnights with you.

Whether you choose to date during or after the divorce is a personal choice. It is also a personal choice as to whether you want to disclose it to your former spouse. Sometimes it may help your former spouse accept that the relationship is over and in other cases it may add such fuel to the fire that it makes an amicable settlement impossible. In the latter case, you may want to wait until the divorce is final. If you have children with your former spouse, you should consider disclosing it to them at the point that you are ready to introduce your children to that person. Oftentimes, this is where conflict occurs. It is only natural for your spouse to have concerns about some third party around their children that they do not know, especially if this person is going to spend significant time with your children. If you really want avoid litigation in custody, you may want to provide as much information or even an introduction to your former spouse depending on the circumstances in order to avoid unnecessary litigation in custody. If you consider how you would want to be treated if you were in the situation, it may help to guide you in how to approach the situation with your former spouse.

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When a Parent withholds custody

As detrimental as it is to the children of a separation or a divorce, sometimes one parent chooses to withhold the children from the other parent. They may feel they are the better parent and are protecting the children. They may just be angry and want to use the children as pawns to get back at the other parent. They may feel they have the right to determine the custody schedule for various reasons. Regardless of why a parent is withholding the children and keeping them from the other parent it is not something that either parent should take into their own hands. If you are the parent who is not seeing your children, you need to immediately file for emergency custody in the county where the children reside if they have been there for at least six months. If the children have not bee in that state or county for six months, then you need to file emergency relief in the state or county where they last resided for six months. If your ex moved out of state with the children less than six months prior, you will want to also seek relief that includes returning the children to the state, and possibly alerting the authorities if the other parent did not disclose their whereabouts. Waiting to file with the court can impact your case as the court will question why something was not done sooner. In addition, you should record all attempts that you make to contact the children both before and after you file. This could be text messages, letters sent to the house, phone calls made, and attempts to visit. You should be careful, however, in remaining calm as sometimes the other parent will then allege harassment or file a Protection from Abuse in an attempt to further gain control in custody. As difficult as it will be waiting to get into court, the sooner you file the sooner the court can remedy the situation.

If you are parent withholding, you should very careful that there is a legitimate reason which usually is only in the event the child is in serious physical bodily harm. In the event that you have chosen to withhold, the court will look at attempts to alienate the other parent as a factor in deciding to whom to award custody. If you feel your child is being abused, you should contact the Child Service Protective agency in your area to conduct an investigation as well as quickly file your petition for custody. Withholding out of spite or under the belief that you are the better parent can not only have serious consequences in the custody schedule that ultimately gets decided but can do serious damage to your children. Children should never be placed in the center of a custody dispute. The Courts favor a relationship with both parents, and in circumstances where it is warranted will place one parent under supervision.

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Stepparents and Custodial Rights

Under the custody laws, when parents split up, both parents often will go to court or come to an agreement on a custody schedule. What happens, when a parent and a non-biological parent separate? Oftentimes, the non-biological parent may have been very involved in the child or children’s lives. If that non-biological parent did not adopt the child, they can still sue for visitation and/or custody of the child or children under in loco parentis. This means that they have the right to go to court to seek scheduled time with the children, be that primary custody, partial custody or visitation even though they are not the biological parent and even if both biological parents have their own custody schedule.

In some instances, one or both of the biological parents may object and say that they did not act in loco parentis and therefore they cannot bring a case. This, however, is often, if not always overcome in a stepparent relationship. To establish in loco parentis, the stepparent has to show that they discharged parental duties with the permission of a parent. Given that in a household both the parent and stepparent usually handle matters together such as paying the bills, driving children around for activities, going to school functions, helping with homework, it is not difficult to see why it would be difficult to say a stepparent did nothing for the child or children.

The standard that the court uses to determine the custodial schedule for a stepparent is no different than the standard used to determine custody for the child generally and that is the best interest of the child. There are instances where a stepparent ends up with primary custody if the circumstances warrant it. Generally, however, a stepparent, should anticipate that the court will give more preference to the biological parents as primary or joint custodians with the stepparent getting some time carved in there if it is in the child or children’s best interest.

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Custody and Incarceration

What happens to a child when their parent goes to prison? If a child is placed with the state agency, such as Children and Youth, a parent may still be able to visit with their child during the time that the parent is incarcerated. It is important for an incarcerated parent to do everything possible to maintain contact with their child and to be active in order to protect their parental rights. Failure to maintain contact or interest can result in a termination of parental rights and adoption if the child is in agency care. Even if visits do not occur, it is important to write, request information about the child, attend hearings and take parenting classes while in prison. If drug and alcohol abuse is an issue, it is important to seek help while incarcerated through the programs offered through the prison.

If a child is with the other parent, oftentimes, the Court does not enter a visitation schedule. Perhaps the Court does not feel compelled to make a parent who is not incarcerated bring a child to visit the prison whereas if the child is in foster care, an agency worker usually brings the child to the prison. Studies show that maintaining family relationship usually helps with the rate of recidivism. If you do choose to bring a child to the prison, you may wonder what those visits look like and what happens during the visits.

If the inmate is in Bucks County, they will be either housed in the prison or the community center. You must contact the prison to find out days and times that there are visitation hours. You should arrive early as they only have limited number of visitors and if it fills up, you will not get in. Your child must be accompanied by an adult and both the child and adult must be on a pre-approved list in order to get it. The visits last approximately a half hour and you will be herded in through security to a room with windows and a telephone. Your child’s parent will be brought into a large gym and they will find you at the window with the phone where you can speak through the glass via a phone. There is no physical contact.

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