Articles Posted in Custody

The United States Supreme Courts’ landmark decision in Obergefell v. Hodges, recognizing same sex couples’ right to marry is only the beginning of the journey through the world of Family Law for same sex couples and their families. Depending on the state and the domestic relations laws of the jurisdiction, adoption, assisted reproductive technology, custody among other issues remain to be decided.    Just recently, the Supreme Court  issued a stay blocking the Alabama Supreme Court from implementing a ruling which refused to recognize a second parent adoption, completed in Georgia, by a lesbian mother of the three children she shares with her ex-partner.

V.L and E.L. were in a long-term same-sex relationship in which they planned and raised three children together, using donor insemination. To ensure that both had secure parental rights, V.L., the non-biological mother, adopted the couples’ three children in Georgia in 2007, with E.L.’s support and written consent. When the two later broke up, E.L. kept V.L. from seeing the children, fighting her request for visitation, and arguing that the Georgia adoption was invalid in Alabama, where they live. On September 18, 2015, the Alabama Supreme Court issued an order refusing to recognize V.L.’s Georgia adoption and declaring that it is “void.” Even though both women participated in the adoption hearing and consented to the adoption, the Court broke with more than a century of precedent requiring states to honor court judgments from other states.  Under the United States Constitution’s Full Faith and Credit Clause, states are required to respect court judgments, including adoption orders, issued by courts in other states. Disregarding this clear precedent, the Alabama Supreme Court ruled that Alabama can treat the adoption as void based on the Alabama Supreme Court’s view that the Georgia court should not have granted the adoption in 2007.

In Pennsylvania, any individual can become an adopting parent. The court process used by the unmarried heterosexual, gay, lesbian, bi-sexual, or trans-gendered partner who is not the biological parent to adopt their partner’s minor child is called a Second Parent Adoption. This is different from the adoption of a minor child by their stepparent , which is called a Step Parent Adoption. Continue reading

Partial Physical Custody and Proactive Contact

Divorce is a challenging event in the life of a family. Children and parents see and experience divorce differently. While parents are coping with the emotional, psychological and financial disruption they may be experiencing, children, no matter their ages and emotional maturity, experience disruption and confusion. As everyone navigates new territory, children look to their parents for guidance and security as they process the often conflicting feelings they experience.

In every divorce involving children, legal and physical custody is established based on the best interests of the children. More often than not, parents retain joint legal custody and have an equal interest and voice in medical, educational and religious decisions. While a growing number of families successfully share physical custody, most parenting plans still involve primary and partial custody in some form.

Pennsylvania Court Rules that Schools Must Provide Transportation to Homes of Both Parents

When separated or divorced parents enter into a child custody arrangement, numerous issues may be addressed. The terms of a particular arrangement may dictate which parent’s home is the child’s primary residence. This designation may impact other issues. A matter that often can get overlooked is the school transportation for children living within the agreed-upon arrangement. Until recently the designation of one home as primary, even in cases of shared custody, could lead to issues regarding parent’s rights to receive transportation to school for their children. This could create unwanted litigation and expense, as exemplified in the recent case of Watts v. Manheim Township School District, No. 935 C.D. 2013.

sc.jpg In the Watts case, a father (Watts) and his ex-wife shared equally-divided legal and physical custody of their child, C.W., who spent alternating weeks with each parent. Both parents resided within Manheim Township School District, where C.W. attended middle school, but their homes were located on different school bus routes. In accordance with a new district policy aimed at reducing expenses, the school informed Watts that, while it would continue to provide transportation for C.W. to and from his mother’s house, it would no longer transport C.W. between Watts’s home and the middle school. Despite the fact that a bus with unassigned seats could accommodate C.W. without adding an extra stop, Watts had to hire someone to transport C.W. to and from school when CW was living with in the custody of his father.

The Odds are Evened Between Parents

The standard for determining child custody is what is in the best interests of the child. However, before Pennsylvania enacted a major change to its’ custody statute, which can be found at 23 PA C.S. A. section 5328, how best interests was determined could vary significantly from one county to another or from one judge to another. The enactment of the Custody Guidelines was a legislative attempt to provide a gender neutral, fact specific, roadmap for custody court judges.

Under the Pennsylvania Child Custody Guidelines there are 15 factors that a court must consider when it is asked to determine the custodial status of a child. (for a discussion on custody status generally see blog post Child Custody 101). Under recent caselaw it is clear that trial courts must evaluate each factor individually, and weigh it in the context of all the facts before ruling on custody.

Understanding the ins and outs of child custody can be overwhelming to one who never had to think about the concept before. Most of us think of our children as “our own,” and that is it. But if separation and divorce become part of a family story the legal and emotional issues raised by custody can be scary and daunting.

Who and what are our children? Are they property? Are they a part of ourselves? Are they separate precious individuals who we take care of temporarily? Are they all of the above? What happens if parents are in conflict over the children? What happens if grandparents get into the picture and want custody? The answers to these questions are not obvious, and may raise intricate legal issues. If child custody becomes contested, the process can become complex.

If a custody case does not settle and ends up in Court, parents may feel like they are in a foreign territory. When entering a foreign land, having a guidebook with some common phrases often is useful to help calm the nerves. Today’s blog is a short introduction to the types of child custody, including important definitions and concepts.

Under the revised Pennsylvania Child Custody Act, which took effect in January 2011, the rules for re-location 23 Pa C.S.A. 5337 are specific. Relocation requires the consent of both parties or judicial approval. The process requires the parent who wants to re-locate to provide written notice by certified mail to the other parent sixty (60) days before he/she intends to re-locate. The definition of “relocate” can mean more than a move out of state. It appears to have expanded to include any residence change that significantly may affect the non-relocating parent’s custodial rights.

The notice provided to the other parent must provide specific information including the new address of the re-locating parent, phone number, persons who will live at the new address, ages of who will be living there, information about the new school, the reason for the re-location and a schedule of visitation. It behooves the moving parent to do as much research into the new location as possible before filing a notice so that the notice is thoughtfully presented.

The other parent then has thirty (30) days within which to respond by counter-affidavit in writing to the notice. He/she can agree or oppose. If a parent opposes, a formal hearing will be held at which each party can present evidence, testimony and experts. If the non-relocating parent does not file a counter-affidavit within 30 days he/she is foreclosed from objecting to the relocation.

When a child lives in one state and a parent files for custody of that child in another state a question of jurisdiction over which state can hear the custody case arises. The Pennsylvania Supreme Court has ruled that in such situations the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) 23 Pa C.S.A. § 5401 applies.

So, for example, if Father lives in Pennsylvania and Mother lives in Maryland and Father files for custody of the child in Pennsylvania and Mother wants the case to be heard in Maryland, and asks the Pennsylvania court to defer jurisdiction to Maryland, how is the proper forum determined? In cases such as this, Pennsylvania will use the Uniform Child Custody Jurisdiction Enforcement Act or the UCCJEA.

Under the UCCJEA a Pennsylvania court will look to the child’s “home state” to determine jurisdiction. The child’s home state is determined by the place that the child resided for six months consecutively immediately preceding the filing of the custody action. The UCCJEA provides that “the state with the closest connections to, and the most evidence regarding a child should decide a child’s custody.” If the child is very young, or has moved around a lot, and has no home state, then the courts use other factors to determine home state. Among those other factors are significant contacts the Child has with the jurisdiction, such as family contacts, medical contacts, school, etc. The Court also may consider which jurisdiction is more convenient for the child.

Alcohol and/or other substance abuse is a known factor in many domestic relations cases. If one party drinks to excess, or uses drugs it can have an significant impact on the marital relationship and on the children. Tensions build, it can lead to secrecy, alienation, breakdown in communication; there may be episodes of violence, the substance abuse may lead to economic problems if it impacts ability to work or sustain a job, and it causes numerous other problems. Oftentimes, the effects of substance abuse on a relationship take years to manifest because one or both parties may be in denial.

A happy, successful, outwardly stable family can become unstable through the pain of alcoholism. Regardless of what triggers the alcoholism, if this is a factor in your family dynamic, it is important to acknowledge it.

The Pennsylvania Courts take substance abuse very seriously. Because the best interests of the children are primary, Courts carefully will consider evidence of substance abuse in any custody determination. If there is any concern that the health or welfare of a child is endangered by being in the custody a parent who is an alcoholic or substance abuser, primary physical custody could be granted to the other parent , and the substance using parent might be denied physical custody or granted limited supervised partial custody.

In the Best Interests of the Child

When parents work cooperatively in divorce, children will fare better. 1187603_fun_with_bubbles.jpg

In an ideal world divorcing parents would be able to put their hurt, anger, grief, conflict and other emotions aside and put parenting their children first. Children may not need (or be able ) to live in a home with two married parents, but they do need to have the continuing contact, love and involvement of both their parents .