Tag Archive for: custody

New Custody Rules for Chester County

Chester County has just approved a number of changes to their local rules regarding custody matters. For all custody orders, it must be stated within the order that neither party will relocate with minor children without proper consent or court approval as required under Section 5337. For all initial complaints for custody or petitions for modification, the criminal history affidavit must be included. The non-moving party should file their criminal history affidavit within 10 days following service. After filing of the complaint or modification petition, the parties must attend an approved parenting class and provide proof of their attendance. Presently, the court approved parenting program is “Children in Between.” In some instances, the parties may also be ordered to attend a mediation session.

All temporary orders for custody should include language that it will become permanent in 180 days after filing of the underlying petition or 90 days after a conference, whichever is earlier, unless a demand for trial is filed including a certificate of trial readiness and pretrial statement. The pretrial statement must include a summary of the issues, concise statement of facts, list of all potential witnesses, exhibits that may be offered, a proposed final order, and an updated criminal history verification. An interim order shall be entered at the conference. Objections to the interim order shall be put in writing and filed with the prothonotary to be scheduled for a hearing. If the interim order would result in a change in primary custody, a request for a stay must be filed within 5 days.

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Pre-Trial Conferences in Custody

A number of changes to the Pennsylvania Rules of Civil Procedure regarding custody took place this summer. One change, Rule 1915.4-4, provides the opportunity for a pre-trial conference in a custody matter. Either party may request the conference by written request in the form of a praecipe. Alternatively, the court can schedule one on its own motion. The timing of the pre-trial conference is after the parties have made their initial appearance at a custody conference but prior to the hearing scheduled before a Judge. The Rule provides the pre-trial conference should be scheduled at least 30 days prior to the start of a custody hearing. The Judge will preside over the pre-trial conference in chambers if both parties are represented.

 

At least 5 days prior to the pre-trial conference, each party must submit a statement to the court as well as the opposing party. The statement must include the name and address of all anticipated witnesses, including expert witnesses, along with their relationship to either of the parties, if any. The statement should also include a proposed custody order setting forth the schedule sought. Finally, all exhibits and/or reports that may be referenced in a hearing must be served on the opposing party but not submitted to the court. The goal of the pre-trial conference is to narrow and/or resolve any issues remaining for trial and encourage settlement of the case. At the conclusion of the conference, the court will enter an order outlining any agreements reached and limiting the issues for trial to those not already resolved. Hopefully this new procedure will be useful and reduce the likelihood of unnecessarily contentious custody battles in open court.

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Service Members Civil Relief Act

The Service Members Civil Relief Act (SCRA) was signed into law by President Bush in 2003. It was an overhaul of the SSCRA which had been law since 1940. The main purpose of the SCRA is to protect service members from civil lawsuits while they are on active duty and unable to adequately defend themselves. The protections of the SCRA, accordingly, apply to family law matters such as divorce, custody and support. Divorce complaints must either include a statement that neither party is a service member on active duty or be accompanied by an affidavit of non-military service. The service member has the right to waive their protection under the SCRA and still proceed if they desire to. Any waiver of rights under the SCRA must be in writing.

The SCRA provides for a mandatory stay of civil proceedings if the case does involve a service member in active duty. The stay period may be extended if necessary. An application for a stay should establish that the present active duty impairs the ability of the service member to appear and defend themselves in the civil action. The application should also indicate when the service member expects to be available to participate. A statement by the service member’s commanding officer needs to be provided corroborating the facts alleged by the service member in the application. An SCRA website is available where inquiries can be made into the active duty status of any individual.

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Morality Clauses in Family Law

Some states routinely include a morality clause as part of a divorce case. A morality clause would prevent the parties from doing certain things following separation. In family law, the clause usually prevents either party from having a new partner stay overnight while minor children of the former marriage are present. Texas is one of the states that still routinely uses morality clauses in divorce actions. A recent decision in Collin County, Texas upheld a morality clause from a 2011 divorce ordering that the wife’s new partner vacate the home where two children from the marriage resided.

While morality clauses are not commonplace in Pennsylvania, they can be negotiated as part of an agreement in custody matters. Pennsylvania custody law dictates that the adult household members of the parties should be examined as part of the best interests of the child analysis. In some circumstances there may be clear cut reasons for wanting to restrict new partners from being around minor children such as criminal history or drug and/or alcohol abuse. In other instances, the parties just don’t want new people introduced into their children’s lives too quickly or only for a brief period based on the argument that the children need stability. Where the parties are entering an agreement they can put whatever restrictions they both agree to, however, if left to a Judge a party is more likely to be successful if there is a justification for the restriction rather than just a preference of one of the parties.

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Custody Relocation Procedures

In a custody matter, court approval or permission of the parent is required prior to a relocation. A relocation would be any move that substantially interferes with the custodial rights of the other parent. 23 Pa CS 5337 lays out the specific procedures to be followed in the event of a proposed relocation. First, the party seeking relocation should give 60 days notice to the other parent by certified mail, return receipt requested. If not possible to give 60 days notice, notice should be given within 10 days of becoming aware of the relocation. The notice of relocation should include as much information as possible regarding the new address including names and ages of individuals who will be residing there, home telephone number, name of new school district and school, and date of proposed relocation. A counter-affidavit should also be supplied with the notice giving the other party the opportunity to object to the relocation.

If notice is properly given and no objection is received, it is presumed the other parent consents to the relocation. The party seeking relocation would simply need to file a petition for confirmation of relocation. If the other parent objects, a hearing would need to be held prior to the relocation. Section (h) goes into detail about the factors for the court to consider when making a custody determination pursuant to proposed relocation. The party proposing the relocation has the burden of establishing that the relocation will serve the best interest of the child(ren) under the factors listed. Both parties have the burden of establishing an appropriate motive in seeking to relocate or opposing the relocation.

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Court Conciliation and Evaluation Service

The Court Conciliation and Evaluation Service, or CCES for short, is a program in Bucks County that conducts custody evaluations for pending court cases. Parties to a custody matter would participate in a series of sessions with an assigned evaluator. The goal of the program is to facilitate an ideal co-parenting relationship that provides for the best interests of the child(ren) involved. The end result of the program is either an agreement on custody or a full clinical report including a recommendation which is then provided to the court. In addition to the parents and the children, additional parties can be interviewed as part of the CCES process based on their role in the parties’ lives or unique insight they may be able to provide. On average, it takes 6-8 weeks for the process to be completed with the report due to the court within 45 days of the final session. An expedited evaluation which is completed in a matter of days is possible only in emergency situations or when one or both of the parties live out-of-state.

As far as procedure, parties are generally referred to CCES following the initial custody conference if the parties are agreeable; otherwise, the parties may be ordered to participate following a hearing. A referral form is completed which includes contact information for both parties as well as case information. This form is submitted to CCES. Both parties are responsible to submit an application fee directly to CCES prior to the start of the sessions. Parties are each responsible for the fee for the evaluation at the first meeting with the evaluator. Parties should also bring any documents they want the evaluator to review to the first meeting. The CCES report is a confidential document and cannot be dispersed directly to the clients based on the sensitive information it contains. Represented parties can view the report at their attorney’s office. Unrepresented parties can make arrangements to view the report at the custody master’s office. A custody hearing can be requested after the report is received instances where an agreement could not be reached during the process.

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Implications of Rape in Custody/Parental Rights

Pennsylvania has some of the best protections nationwide in the instance of mothers who opt to have a child following a rape. First, there is the potential that the rights of the natural father/perpetrator of the rape can be terminated. Pursuant to 23 Pa CS 2511(a), which lays out the grounds on which a parent’s rights can be involuntarily terminated, paragraph (7) provides for termination where “the parent is the father of a child conceived as a result of rape or incest.” While it is a plus that the law specifically allows termination of parental rights in a rape case, a party petitioning for involuntary termination will still need someone willing to adopt the child simultaneously with the termination which may cause a dilemma.

In addition to provisions regarding involuntary termination of parental rights, rape is also expressly addressed in Pennsylvania’s custody laws. Under 23 Pa CS 5329, the court is to consider criminal convictions, not just official charges, when making a custody decision. However, while the court must consider a rape charge, that doesn’t mean it can’t grant the father/perpetrator any custody time. Instead, the rape charge would just be one of several factors for the court to consider in determining what’s in the child’s best interests as is required for all custody decisions.

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Agreements in Family Law

Parties are often encouraged to try to reach an agreement to resolve whatever issues have arisen in any legal matter. In family law, agreements are especially encouraged due to the personal nature of the issues at hand along with the belief that it is better for the parties to draft their own agreement rather than allow a stranger to dictate their family dynamics going forward. Most agreements in family law will be treated as any contract would and the parties will be obligated to comply with the provisions or face an action for contempt. The family court will retain jurisdiction over all agreements entered that are subsequently submitted to the court to be made an order. As with any contract the court is generally only concerned that the agreement was entered into voluntarily and knowingly. The court will not necessarily be reviewing the content of the agreement before allowing it to become an order of court.

If a provision of the agreement needs to be enforced and one party seeks the court’s help in pursuing contempt, at that point the court would need to examine the content of the agreement in order to make a decision on a resolution of the contempt. Many agreements will include a provision that the party who breaches the agreement will be responsible for attorney fees if contempt must be sought through the court to gain compliance. The most comprehensive agreement in a family law matter is a marital or property settlement agreement. This type of agreement sets out to resolve all issues in a divorce matter including, but not limited to, how the divorce will be proceed to finalization, division of property, child and spousal support and/or alimony, and custody. One provision that will not hold up in court even if the parties agreed to it is the waiver of child support. The PA Supreme Court ruled in Knorr v. Knorr, decided in 1991, that a parent may not contract away a child’s right to support as the court views child support as an entitlement of the child rather than the parents.

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Reunification Counseling in Custody Cases

Reunification counseling is a process meant to rebuild a relationship. Often times, reunification counseling will be used in the context of a custody dispute to reintroduce and/or reinforce the relationship between a parent and their child. There are several reasons why reunification counseling may become necessary. It could be a situation where one parent was not involved in the child’s life for a long period of time and so some type of counseling becomes helpful in assisting both parties ease back into a normal relationship. Alternatively, a course of reunification counseling can be used after a sudden change in relationship has caused damage or anger. For example, a child may not understand why his or her parents have separated and may show anger or resentment towards the parent who moved out of the home. Or perhaps, it is not even the child initiating the feelings of resentment or anger, but the other parent who then projects those same feelings onto the child.

Reunification counseling can be viewed as a more collaborative approach to re-establishing a relationship as opposed to just having the court force certain periods of visitation when the child may not be willing or emotionally ready. This is especially a concern when dealing with teenagers. A custody order forcing visitation with the other parent may serve a temporary goal but ultimately result in lifelong resentment once the child is over 18 and free to make his or her own choices. It may be more beneficial to be patient on the front end in exchange for a healthy relationship that has the potential to last past their “childhood” years. It is the role of the reunification therapist to facilitate the process with the end goal of repairing the relationship going forward. If you are facing a high conflict divorce or separation or have been inactive in your child’s life for a certain period of time and feel you may need help rebuilding the relationship, consider reunification therapy as an option to get the relationship back on the right foot again.

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Holiday & Vacation Time in Custody

In the midst of the holiday season, it may become necessary to consider where children will spend the holidays if they have separated or divorcing parents. A holiday schedule can be included as part of a custody order. Frequently seen provisions include alternating holidays so that one party has even years the other has odds or splitting the holidays so that each party has a certain time allotted on the holiday itself. Ultimately, it is up to the parents and/or guardians in any given case to make a schedule that works best for them. It may be a schedule where the parties will always have the same holidays every year and won’t alternate or share. In some instances, a custody order may state that holidays will be shared as mutually agreed upon by the parties without the need to lay out specifics. There may be unique family traditions that don’t occur on the actual holiday that a party will want the kids to be involved in.

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. As a practical matter, parties should try to be as civil and cooperative as possible when discussing holiday time. The holidays can be an especially difficult time for families that are going through separation and divorce and everyone involved will benefit from a process that is as amicable as possible.

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