Custody definitions: clarifying the legal terms

If you are involved in a custody action in Pennsylvania, it is helpful to understand the terms that go along with it.  First, there are two types of custody in Pennsylvania – legal custody and physical custody.

Legal custody means the right to make important decisions about your child.  The types of decisions that are considered legal custody decisions are educational, medical and religious ones.  Additionally, having legal custody means that you have access to medical, dental and school records and other such information about your child.  Legal custody can be shared by the parties or one parent may have sole legal custody. 

Physical custody is defined as having physical control and possession of the child.  Physical custody may be shared by the parties, one party may have primary physical custody and the other having partial physical custody or one party may have sole legal custody.  Periods of physical custody may also be supervised (supervised physical custody).

-          Primary physical custody occurs when one parent has more than one-half of the overnights with the child.  The other parent, in this situation, has partial physical custody.  It is important to note that the primary/partial distinction is defined by who has a greater number of overnights over the course of a year. 

-          Shared physical custody (commonly referred to as 50/50) occurs when the parents have an equal number of overnights. 

-          Sole physical custody is when one parent has the child 100% of the time.

-          Supervised physical custody is when one parent is required to be supervised by a responsible adult or an agency designated by the court. 

Custody Frequently Asked Questions (FAQ)

CUSTODY FAQ

When can my child decide where she wants to live?

In Pennsylvania, there is no age at which a child can decide where to live; the decision is up to the judge (or the parents, if they can agree).  However, one of the factors that a judge will consider in deciding a custody case is the preference of a child.  The older and more mature the child is, the more weight the judge will afford the child’s preference. 

Can I decide what activities to register my kids since I have primary custody?

Assuming you and the other party share legal custody, the decisions for extracurricular activities and other such decisions should be joint decisions, made after consultation with the other party.  Typically, the only way one parent can unilaterally make these decisions is if that parent has sole legal custody, which is unusual.

Does the person who files for custody first get an advantage?

No.  Regardless of who files the custody action, the process and procedure is the same.  Both parties are afforded the opportunity to be heard before any custody order is entered. 

Are mothers given a preference in custody actions?

No.  In Pennsylvania, there is no preference afforded to either parent.  Rather, the law requires that all of the factors outlined in the statute be considered and weighed to determine what is ultimately in the best interest of the child.

Do I have to pay child support if I’m not seeing the child/the other parent is not letting me see the child?

Yes.  Child support and custody are dealt with separately. The obligation to pay child support exists separate from the right to see the child.   This also means that a parent can see their child even if they are behind or delinquent on their child support payments.

Do grandparents have custody rights?

Yes; however, grandparent or third party rights can be complex.  If you are a grandparent or any third party (non-parent) who is seeking any type of custody of a child, you should contact an attorney.

When can I modify my custody order?

You can file a petition to modify a custody order any time.  Typically, changes in custody orders will occur if there is a change in circumstances or the parties agree to a change. 

 

Note: These are all general answers and your case may be different.  In almost every case, there are specifics of a situation that will complicate the result in a custody action.  Custody situations are incredibly personal and individual.  It is important to have a knowledgeable attorney guide you through this process and to answer all of your custody questions.   Contact The Law Office of Angela Flouras Rieck for your questions about custody in Lancaster County, PA.

The Child Custody Process in Lancaster County, PA

While child custody laws are the same throughout Pennsylvania, the legal process for a custody action can vary greatly from county to county. In Lancaster County, PA, a custody action is started by the filing of a Custody Complaint.  That complaint then is served on the other party or parties involved in the custody action.  Approximately six weeks after the filing of the custody complaint, a custody conciliation conference is held.  At that conference, all of the parties and their attorneys meet with a custody conference officer to discuss the custody situation.  If the parties can agree to a custody schedule, a Custody Order will be entered.  If there is no agreement at that initial custody conference, there will either be a follow up conference or a custody hearing will be scheduled.

A custody hearing (sometimes referred to as a custody trial) is where each party has the opportunity to present evidence (witnesses and exhibits) to show why he/she should be granted custody.  These hearings are in front of a judge and are more formal judicial proceedings.

It is important to have a knowledgeable attorney guide you through this process and to help you protect your family.   Contact The Law Office of Angela Flouras Rieck to discuss your custody action in Lancaster County, PA

Third Party Standing in Custody Cases: Recent Cases

As a result of a recent Superior Court decision, it appears the rights of third party custody litigants have been further tightened.  Earlier, I discussed the Supreme Court’s ruling that impacted standing of grandparents.  This decision, issued on March 6, 2017, tackles situations of custody participants who assert standing under the in loco parentis section of the statute.

In K.W. v. S.L & M.L. v. G.G., Mother apparently did not inform Father of her pregnancy.  Rather, approximately 5 months prior to the child’s birth, Mother contacted Bethany Christian Services to place the child for adoption.  With Mother’s help, BCS did conduct a search for Father, which included letters to his last known address and some Facebook messages and friend requests.  Meanwhile, two days after the child’s birth, the child was placed with S.L. and M.L. as prospective adoptive parents.

Father received the letters from BCS on September 19, 2015, approximately one month after the child’s birth and placement with S.L and M.L.  Father contacted BCS to set up a meeting and, on approximately October 14, 2015, Father informed BCS that he did not want the child to be adopted.  Soon thereafter, Father filed a custody action in Centre County, naming only Mother and Father as parties. He also requested that BCS be ordered to disclose the whereabouts of the child.  The Court granted primary custody to S.L. and M.L. and awarded partial custody to Father.  In addition, the action was transferred to Lycoming County (Father’s home).  S.L. and M.L. filed a separate custody action in their home county, York and, in a separate filing, challenged Centre County’s transfer of the action to Lycoming County.  The end result of all of these filings is that the matter continued in York County.  Based on one of the arguments made by Father, the York County Court heard the issue of whether S.L. and M.L. had standing in the custody action. 

Generally, the only non-parent, grandparent or great-grandparent who has standing to seek custody of a child is one who stands in loco parentis to the child.  In loco parentis literally means “in the place of a parent.”  More specifically, a person is considered in loco parentis if he assumes the obligations incident to the parental relationship without going through the formality of a legal adoption.  There are typically two considerations in a determination of “in loco parentis”: (1) assuming parental status and (2) discharge of parental duties.  Importantly, you cannot be in loco parentis of a child without the consent and knowledge of a parent.

The York County court found that S.L. and M.L. did have standing (that they were in loco parentis).  The Superior Court, however, reversed that decision and held that Father did not consent to the placement through BCS and, therefore, S.L. and M.L. could not be in loco parentis of the child.  As such, they did not have standing to pursue any custody of the child, even though the child had been with them, in their home, for the entirety of her 18 months of life.

The court focused on whether Father gave “implied consent” for placement with S.L. and M.L. through BCS.  Essentially, the inquiry was into whether, by waiting one month to affirmatively object to the placement, Father “consented” to the placement.  The Court found that Father’s objection was prompt and, therefore, not consistent with consenting to the placement and adoption.  The Court compared that to a prior case where a father failed to be involved in his child’s life for a year.  In that case, the father’s conduct was consistent with consent to placement with another.

The Superior Court here indicated it was cognizant of the impact this decision would have on this child and S.L and M.L, who have “parented” this child for a year and a half.  This decision legally cuts them out of the child’s life.  However, the court felt that a parent’s fundamental constitutional right to care for a child (and the legal presumption that a parent is fit) outweighs the sympathy felt for the prospective adoptive parents and, as such, Father has a right to parent this child absent interference from a third party.

There are two practical implications of this decision – one to foster or prospective adoptive parents and the other to a parent who has minimal or no contact with the child.  For these third party individuals (whether foster parents, uncle or aunt or any other who may care for a child for any length of time), doing so without clear consent of both parents could result in a situation where the child is taken and that person is left with no legal recourse, unless he can prove that the parent is unfit.  On the other hand, a parent should be conscious of not waiting too long to object or assert parental rights.  The court  here was careful not to establish a bright line rule about what length of time tips the scale from consistent to inconsistent with consenting to placement, however did give some guidelines for attorneys and litigants to follow.

K.W. v. S.L. and M.L. v. G.G. (2017 PA. Super 56), March 6, 2017.

The Individualized Nature of Child Support

So often I hear how a particular outcome in a custody, divorce or support matter is “unfair” because my client “knows a guy” who didn’t have to give up as much or got a better custody arrangement or had a significantly different support order.  A client will often compare her situation to a relative, a friend or a co-worker and wonder why things turn out differently for her.  As attorneys, we try to give clients the best advice given the circumstances of each client’s situation, but that will not necessarily be the same as your sister, friend or coworker.  This series of blog posts will attempt to shed some light onto some of the reasons for the differing outcomes in family law cases.

Support

Perhaps the most common “but I know a guy” conversation I have is in child and spousal support situations.  Support calculations/orders are extremely individualized as they deal with the parties’ incomes, above all else.  The legislature has dictated how a support obligation is to be calculated.  Most simply, the monthly incomes of the parties are combined (with some deductions for income taxes and other variables).  The legislature has assigned a basic support obligation based on the parties’ combined net income and the number of children to be supported.  This basic support obligation amount is found in a chart in Rule 1910.16-3 of the Pennsylvania Rules of Civil Procedure.  Once the number on that chart is identified, a percentage of that number is assigned to each party as their monthly contribution toward the support of the child(ren).  Then, typically the non-custodial parent, will pay his or her percentage to the other party. 

The method of calculation outlined above occurs in situations where the parties have defined incomes and no circumstances which may warrant a change from the support amount in Rule 1910.16-3.  However, this is not often the case.  Custodial arrangement, childcare costs, private school tuition and medical insurance costs often result in adjustments of the calculation of support amount.  For example, the parent who pays the health insurance for the child(ren) will get “credit” for that payment, either in an increased child support payment (if the health insurance is paid by the parent who receives the support) or in a decrease in the child support payment (if the health insurance is paid by the parent who pays the support).

Additionally, Rule 1910.16-5(b) provides several ways that a court may deviate from the support calculation.  Some of the deviations that may be considered by a court include:

  1. Unusual needs and unusual fixed obligations of the parties;
  2. Other income in the household;
  3. Any other support obligations of the parties.

These deviations are at the discretion of the court and the court may decide to make a slight, large or no deviation from the calculation.  These deviations are separate from the adjustments that are discussed above (i.e. childcare, tuition, custodial arrangement).

In addition to deviations and adjustments, there are a few other circumstances that can change a support amount.  Sometimes, for example, one party argues that the income of the other is not up to his or her potential, given that party’s education or past work history.  If that is persuasive, the court can assign an earning capacity to that party which is higher than his or her actual earnings. 

The situations mentioned in this post are only a few of those that can be argued in a support matter.  The Pennsylvania Rules of Civil Procedure, which largely govern support matters, provide much information for the calculation of a support obligation and potential for deviation from that basic support obligation.  Family law attorneys are typically well versed in these matters and can advise clients on what potential deviations or factors may affect a child or spousal support order.

How Custody Factors can affect a Custody Schedule

So often I hear how a particular outcome in a custody, divorce or support matter is “unfair” because my client “knows a guy” who didn’t have to give up as much or got a better custody arrangement or had a significantly different support order.  A client will often compare her situation to a relative, a friend or a co-worker and wonder why things turn out differently for her.  As attorneys, we try to give clients the best advice given the circumstances of each client’s situation, but that will not necessarily be the same as your sister, friend or coworker.  This series of blog posts will attempt to shed some light onto some of the reasons for the differing outcomes in family law cases.

Custody

The legislature has outlined the factors that are required to be considered in a making a decision in a custody case.  There are a total of 15 concrete factors and a 16th which allows the judge to consider “any other relevant factor.”  Those factors, listed at 23 Pa.C.S.A. 5328 include the following: which party is more likely to encourage and permit frequent and continuing contact between the child and another party, the need for stability and continuity in the child’s education, family life and community life and which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs, and others.  Parents (or grandparents) in a custody action often point to one specific trait or issue of the other parent in defense of why that other parent should get no or minimal custodial time with the child.  However, typically no one factor is going to make the determination.  The law requires that all the factors (if applicable to the particular case) be weighed and considered in making a custody determination.  In other words, the fact that the other parent has three DUI's from 5 years ago or has a spotty work history or has a had multiple boyfriends and residences in the past 2 years may be persuasive, but are not the sole issues that a judge will consider. 

 In looking at these factors, the court is guided by the singular principle of custody law – doing what is in the “best interest of the child.”  While the legislature provided guidance in making this decision in creating the list of factors discussed above, ultimately it is up to the judge to weigh which factor or factors are most persuasive given the circumstances of your specific situation.  As in most areas of family law, there are exceptions to every rule and each situation is different, though on the surface it may appear the same. 

An example of the individualized nature of these decisions lies within one of the factors listed in section 5328 is “the well-reasoned preference of the child, based on the child’s maturity and judgment”.   Under the law, the child does not get to decide where he/she lives.  The age, maturity level and intellect of the child will often affect how much weight will be given to his/her preference, provided the child’s preference is “well-reasoned.”  However, there is no magic age, grade level or I.Q. where the child’s preference automatically rules the outcome.  Like all other factors, this is just one that the judge must consider and weigh among and against all of the other factors.

An experienced attorney, in preparing a custody case, will ensure that all relevant factors listed in section 5328 are presented to the judge, allowing the judge to make a reasoned and informed decision.  Remember that, generally, the only information a judge has about your situation is what is presented to him or her during the custody hearing.  If the judge does not have the evidence to consider on a particular factor, the judge cannot utilize that factor in making his or her decision and it could result in an undesirable ruling.