If you’re involved in a custody dispute in Pennsylvania, you might wonder how much your child’s preferences matter. Is your child allowed to tell the judge which parent he or she wants to live with? The answer is (more…)
It is encouraging when parents involved in a custody dispute are able to reach an agreement amongst themselves. However, this is not (more…)
Custody proceedings can be difficult for all parties involved, especially the children. The best way to avoid the added stress of court appearances in a custody action is to resolve the matter through a custody agreement. A custody agreement is a (more…)
COVID-19 has affected nearly every aspect of our daily lives. For many of us, our regular routines have been drastically altered and we must find ways to adapt. However, if you are divorced or separated and sharing child custody with another parent, COVID-19 has possibly made your situation even more complex. You may be wondering how the current climate affects your custody order and how the courts will address disputes should an issue arise during this time.
First of all, you should continue to regularly follow all custody orders presently in place and continue to transfer custody. Do so even if your area has issued a “stay at home” order. Maintaining consistency for your children is key. If your exchange location is not at home, arrange to meet at an open-air public place, like a parking lot. Try to coordinate social distancing procedures and health practices with the other parent. Implement procedures that can be followed at time of transfers and during stays in both homes. Keep the other parent informed and keep the lines of communication open.
It’s also important during this time to be understanding that issues may arise that warrant a deviation from the current order. Many parents are being forced to adapt to a work from home environment, while others may be deemed an “essential employee,” still working at the office or working different hours than normal. Cooperate with the other parent to address any temporary changes that may be required to accommodate fluctuating job schedules or health concerns. Most importantly, always keep the best interests of your children in mind. If you have any health or safety concerns regarding the children, promptly address them with the other parent.
The short answer is yes, at least for emergency custody matters.
The Supreme Court of Pennsylvania has closed all courts to the public for non-essential functions through April 3, 2020. In response to this order, the county courts in our area have done a great job developing procedures to handle family law issues amidst COVID-19 while ensuring that employees and citizens stay healthy and safe. For example, here in Bucks County, all non-emergent trials and hearings have been continued through April 14, 2020. Attorneys and pro se litigants are directed to file all pleadings through the court’s online system. All custody related petitions can still be filed online. However, the judges have discretion on how to handle these filings. Judges can choose to set up telephone conferences to address a particular matter, or they can continue any non-emergent custody matters generally until the court is fully operational again.
Any custody issues deemed an emergency should be labeled as such on any court filings. Judges are available to promptly address any emergency custody petitions. Once the court does open as normal again, any continued matters will be rescheduled, with the most crucial matters being heard first.
For those parties presently involved in CCES (Court Conciliation and Evaluation Services) for custody matters, the court counselors are making every effort to conduct most interviews via video or telephone conference. However, interviews of children may be postponed so the counselors can observe in-person interactions between the children and parents. Additionally, the court is not holding its regular weekly Protection from Abuse (PFA) days until after April 15, 2020. The court will still hear temporary PFAs that are filed during this time period. Any PFAs set to expire before April 15, 2020 are automatically extended until at least April 15th. For more information on how the Pennsylvania courts are operating during this time visit https://bucksbar.org/covid-19-court-and-bar-association-updates/.
We are open! While our physical office locations are closed, we are still fully operational. We are accepting calls and are scheduling consultations and client meetings virtually by video conference through Zoom or Skype. Our firm offers flexible hours that can accommodate any schedule. We can still file all pleadings online and can exchange documents requiring client signature via e-mail. Most importantly, we are here to help you navigate custody and all other family law matters through these uncertain times. Give us a call at 215-345-8000 or email us at info@cooleyhandy.com.
If you’re involved in a custody dispute, you might wonder how much your child’s preferences matter. Is your child allowed to tell the judge which parent he or she wants to live with? The answer is it depends.
How much weight the judge places on the child’s preferences, however, will depend on the age and maturity of the child.
Child Custody in Pennsylvania is determined based on a variety of factors. The custody laws in Pennsylvania list 16 factors that courts are supposed to consider when making a custody determination. None of those custody factors are controlling by themselves. Judges look at all factors and try to reach a decision that is in the best interests of the children.
One of the custody factors in Pennsylvania is “the well-reasoned preference of the child, based on the child’s maturity and judgment.” However, there is no set age when child’s preference becomes applicable to a custody case. Although, obviously, greater weight is placed on the preference of older children. This is because the older a child gets, the more intelligent and informed their views and opinions become and the easier it is for them to articulate their feelings.
A judge will consider a custody evaluation done in your case by a psychologist or other professional that discusses your child’s preferences. The judge will almost certainly take this into consideration instead of interviewing the child directly. If no such report exists, or if there is a dispute over the report, the judge will typically interview the child at the request of one of the parties. The interview is usually informal and takes place in the judge’s chambers. This process is less stressful for the child than being examined in open court.
It’s not a good idea to question a young child about his or her preferences. Young children may not understand the process or may feel obligated to just make an arbitrary choice of one parent over the other. This could result in a custody situation that is not truly in the best interest of the child.
You also should be careful about having a child talk to a judge or testify in court. Children usually do not say what you expect them to say. They want to stay neutral and will almost always tell the judge that they want the custody schedule to be equal (even if that is not what they actually want), because they don’t want to hurt their parent’s feelings. Judges also do not like it when parents ask their children to testify in court and will often hold it against the parent that does.
If you are experiencing a custody issue, get in contact with us. The experienced and knowledgeable attorneys at Cooley & Handy can help you navigate this delicate area of family law.
In extreme cases, when a child is refusing to visit with a parent and the court is threatening the primary custodial parent with contempt or other drastic sanctions, one tactic that can help deflect blame for the child’s failure to abide by the custody order is for the custodial parent to request an attorney be appointed to represent the child.
Rule 1915.11 states as follows:
(a) The court may on its own motion or the motion of a party appoint an attorney to represent the child in the action. The court may assess the cost upon the parties or any of them or as otherwise provided by law.
There is little case law interpreting when an attorney should be appointed for a child, and the court is granted broad discretion in these matters.
A strong case for appointing a child his or her own attorney can be made, however, where the custodial parent alleges that an older child refuses to visit the other parent due to alienation or psychological distress. Once appointed, the child’s attorney is supposed to advocate for the child’s preferences, as opposed to the theoretical “best interest” of the child. Thus, this type of representation is decidedly different than when a court appoints a guardian ad litem to argue for the “best interest” of a child.
In advocating for the child, the child’s attorney will likely need to present evidence that it is the child who refuses to follow the custody order (as opposed to the custodial parent trying to impede the custody order), and that the child’s mental well-being (and perhaps physical well-being) is in danger if the child is forced to abide by the order. Indeed, in most cases the evidence will reflect that the custodial parent has actually attempted to force the child to follow the order and visit with the other parent, but that the child resisted.
We believe legitimate concerns on behalf of a child should not be ignored. Rather than attempting to enforce unworkable and potentially injurious custody schedules where a child refuses to visit with a parent, children would be better served if the courts focused on attempting to rehabilitate the child’s damaged psyche through counseling or other means. Of course, the ultimate question is whether such relationships, once damaged, can be rehabilitated or repaired so long as the child remains an unwilling participant. Parties in the midst of custody litigation and/or divorce often have had volatile relationships that inevitably adversely affected their children and their relationships with one or both parents. These concerns cannot be ignored.
PREVIOUS: AVOIDING CONTEMPT WHEN A CHILD REFUSES TO VISIT WITH A PARENT
When it comes to custody, every county does it a bit differently. If you are initiating a child custody action or modifying a current custody order in Bucks County, here is what you need to know:
After you file your initial child custody petition or petition to modify, you will be scheduled for a conference with a Bucks County family Master. A family Master is a full-time employee of the court, as well as a licensed attorney. At this stage of the proceedings, there are a few possible outcomes. Option 1: the parties reach a full and final custodial agreement and are finished. That is the outcome the Masters aim for, when possible. Option 2: the parties reach an interim agreement, pending a custody evaluation or a hearing. Option 3: the parties go straight to a custody evaluation, which can be done with a private evaluator or with the Court Conciliation Custody Evaluation Service of Bucks County (aka CCES). Option 4: (also the most unlikely) the parties go straight to a hearing before a judge. This option is unlikely because in Bucks County, there is a push for parties to obtain evaluations before going to a hearing. If you go straight to a hearing without an evaluation, the judge will likely just order you to go to an evaluation.
Bucks County gives great weight to child custody evaluations and, in most cases, requires it. If you are starting a new custody action, expect to be ordered to do a custody evaluation, which will most likely be conducted through CCES.
What happens in an evaluation? The evaluation procedure consist of a series of meetings, first with each parent individually, then with the parents jointly, and then with the children. In these meetings, the evaluator gathers any necessary background information and an understanding of what the parents want and what the children want. The evaluator also interviews collateral people. Collateral people are generally other people that the parents live with, such as grandparents or boyfriends/girlfriends. Once the entire evaluation process is complete, the evaluator reviews all the data and submits a recommendation to the court and, if retained, to the attorneys.
Why does the Bucks County court generally require child custody evaluations? Well, custody evaluations provide the opportunity for a professional psychologist or social worker to use their skills to evaluate what custodial arrangement would be in the best interest of the child or children. It also gives the parents the opportunity to discuss co-parenting, and to get a better idea of how their children are affected by the process. Additionally, once the evaluator’s recommendation is issued, most parties begin to consider settlement. The recommendations promote negotiations and, if successful, usually result in an outcome that works best for both the parties and, especially, for the children.
Why do most parties go through CCES and not use a private evaluator? First, private evaluators can be expensive. It can cost up to $10,000 for a private evaluator. However, private evaluations are also more extensive. Private evaluators will do psychological testing, home studies and intensive counseling sessions with the parents and the children. For certain cases requiring a greater analysis, a private custody evaluation may be the best decision. It just depends on the facts and circumstances of the case, as well as the financial resources of the parties.
If you have been to the conference and through the evaluation and have been unsuccessful in negotiating a custody agreement, the next and last step is a hearing before a judge. A majority of custody cases do not reach this level. The parties either negotiate an agreement at the conference level or reach an agreement based on the custody evaluator’s recommendation. However, if no agreement can be reached, then your only option is to go to court and let a judge decide.
When you go to a custody hearing, it is important to know that, in most situations, you are not the only case on the judge’s list for that day. A lot of your day could be spent waiting around in the courthouse or attempting to negotiate with the other side. When you get in front of the judge, the judge may have you put on your case or he/she may decide to conference your case.
If the judge decides to conference your case, he/she has likely reviewed your case and believes that there is the potential to move you and the other party towards an agreement. At these conferences, the judge generally lets you know what resolution he/she believes is best, motivating you and the other party to start working out an agreement. Conferences with the judge only occur when the parties are represented by counsel, as the parties themselves have too much at stake when it comes to custody, making the conferences too emotionally charged and thereby unproductive.
Conferences can also be requested. If your case has reached the hearing level and the only issue at stake is custody over the Christmas holiday, for instance, it would make sense for your attorney to conference the matter with the judge and reach a resolution. However, if you are at hearing because you are fighting over primary custody, then a conference will likely not prove fruitful and you just have to go forward with a hearing.
There are a variety of different outcomes when it comes to custody, but Bucks County tends to prefer a 50/50, equally shared custodial arrangement whenever possible. This arrangement is generally considered when the parties live within a reasonable distance of each other, such as 20 minutes or less. However, the trend towards 50/50 arrangements has led courts in Pennsylvania to begin entering equally shared arrangements even when the parents live at greater distances, up to 45 minutes apart. It is possible that Bucks County could start entering similar orders
There are situations where 50/50 custody does not work. For example, if one party has a drug or alcohol problem. That party might need to have supervised physical custody. If one party does not have the availability to have physical custody half of the time, then another arrangement would have to be considered. The typical partial physical custody arrangement is that the partial physical custodian has the child or children every other weekend and for at least one dinner visit a week. That’s the standard arrangement, but it can always be tweaked or amended to create a schedule that works best for you and the other party.
In Bucks County, custody can be a long, arduous process. However, it doesn’t have to be. With the use of both conferences and custody evaluations, there is ample opportunity to try to settle the case. The recommendations from the custody evaluators carry great weight with the court, motivating the parties to settle at that point, instead of spending the additional time and money going to a hearing.
Unfortunately, for some cases, a hearing is the only way out. If your case does go to a hearing, it is important to have the right attorney by your side so you can get through the process with the least expense and the least stress. If you have questions about your custody case, contact the experienced custody attorneys at Cooley & Handy, Attorneys at Law and get some peace of mind.
In Pennsylvania, as in most states, child custody battles are something of a crapshoot. Theoretically, courts are supposed to enter custody orders that are in “the best interest” of children based on a loose set of factors ranging from parental cooperation to history of abuse to who is adjudged the most emotionally nurturing parent. In practice, however, decisions are mostly entered based on the personal opinion and biases of the judge overseeing the case, which can be based on anything or nothing at all. As a result, decisions can vary widely, even in similar cases. Decisions are certainly not based on any empirical research into what sorts of arrangement are actually in the best interests of children.
They want to see “presumptions” of child sharing time and duties established nationwide. In other words, parents should enjoy equal time with and responsibility for their children. The International Council on Shared Parenting, which held its first conference in Germany last spring, is the latest to join the field of time-sharing boosters.
The Council’s consensus held that shared parenting “is optimal to child development and well-being, including for children of high conflict parents.” The group also set a minimum of one-third time as the lowest threshold to maintain a positive parental relationship.
But through the strength of groups like the National Parents Organization (formerly Fathers and Families) and the International Council, the shared parenting movement has gained traction. Arkansas last year passed a law calling for “approximate and reasonable equal division of time” in child custody cases. A similar bill passed in Florida, but was vetoed by the governor. Massachusetts, Maryland, and Connecticut have all formed commissions to look into the matter.
It is difficult to find impartial and disinterested evidenced-based research. Many “studies” turn out to be funded by the very groups promoting their research. There is, according to Psychology Today columnist and Psychology Professor Robert Emery, a general, even-handed agreement that very young children of divorce thrive when they have one primary parental relationship, bolstered by a strong secondary relationship (one that is, however, secondary); and that older children do well when their time is shared out more evenly.
That is unlikely to settle the ball on the contentious issue of the “best interests” of the children standard. In Pennsylvania, custody is still a roll of the dice, and the odds probably remain in your favor if you are a mother. But the issue is still swamped by debate. Shared parenting is an idea whose time has not quite arrived.
For adults, the holidays are an opportunity to try to recapture some of the magic and wonder of their childhoods. Children, however, are just forming their memories and feelings about the holidays. Imagine that if, instead of associating the holidays with joy, you associated them with stress and fights. That is the reality of the holidays for many children of divorced or separated parents, although it doesn’t have to be that way.
There are a number of simple steps that divorced or separated parents can take to minimize conflict during the holidays.
The most important step that divorced or separated parents can take to minimize conflict during the holidays is to have a clear written holiday custody schedule in place. A written schedule is important so there are no misunderstandings and each parent can plan his or her holiday activities accordingly. The children should be told the schedule in advance so they also know what to expect.
Once a written holiday custody schedule is in place, parents should make every effort to follow that schedule. Be on time or early for all custody exchanges. Being late for a custody exchange is probably the number one source of conflict between separated parents. The potential for conflict is higher during the holidays, when time with children is coveted and events are planned.
Even the best-laid plans can go awry due to unexpected traffic, illness, or other unforeseen events. Make sure you have your cell phone charged and with you at all times during the holidays and a number where the other parent can be reached. If you do encounter a problem that may cause you to be late, call immediately, apologize and offer to give the other parent make-up time.
Even if you dislike your ex-partner, in all likelihood your children still love and want to spend meaningful time with him or her during the holidays. Facilitating that time will make your children respect you. Interfering with that time will make your children resent you for spoiling their holidays.
You wouldn’t want your ex-partner to tell you how or with who to celebrate the holidays, so don’t try to tell him or her how to celebrate them. Even if you dislike your former partners’ traditions, in-laws or new significant other, keep your mouth shut unless they pose a real danger to your children.
Finally, remember that the holidays should be about creating wonderful memories for your children. Avoid the temptation to make the holidays about you and your needs.
Cooley & Handy, Attorneys at Law focuses its practice in all areas of family law, including divorce, custody and support.
Becoming a grandparent is a special event in one’s life, and grandparents often form close and meaningful bonds with their grandchildren. In many families, grandparents spend a great deal of time with their grandchildren and play an important and active role in their lives. The separation, divorce or death of a parent, however, can throw a grandparent’s relationship with their grandchildren into disarray and potentially disrupt or even sever the grandparent’s relationship with the grandchildren, particularly where the grandparent does not have a good relationship with the other parent. Fortunately, however, grandparents have rights to seek visitation or custody of their grandchildren in Pennsylvania.
The family law attorneys at Cooley & Handy can provide you guidance when seeking rights as a grandparent when seeking some form of custody of your grandchildren.
Under the old custody law, the term “visitation” referred to the right to visit a child and did not include the right to remove the child from the custody parent’s control. The new custody statute does away with that term and instead uses the following terms to describe periods of physical custody: primary physical custody, partial physical custody, shared physical custody, sole physical custody, and supervised physical custody. Depending on the circumstances, grandparents can pursue primary or sole physical or legal custody, partial physical custody, or supervised physical custody.
To pursue some form of custody of your grandchildren, you must have “standing,” which is the legal right to initiate a lawsuit.
In the context of custody, under the new custody statute, a person has standing to pursue any form of physical custody or legal custody if he or she is (1) the parent of a child, (2) a person standing in loco parentis (that is, a person who has acted as though they are the parent or in place of the parent of a child), (3) a grandparent who did not act in loco parentis, but whose relationship began with the consent of a parent or court order AND who assumes or is willing to assume responsibility for the child, AND either (a) the child is deemed dependent, (b) the child is at risk due to parental abuse, or (c) the child resided with the grandparent for at least 12 consecutive months, excluding brief temporary absences of the child from the home, and is removed from the home by the parents (* in this instance, the case must be filed within 6 months of the child being removed from the grandparents care).
If these requirements are not met, a grandparent may still be able to pursue partial or supervised physical custody of a grandchild, as explained below.
If you are a grandparent that is seeking primary custody of your grandchildren and the children are currently in the care of his or her parents, you must be aware that the court is required to make a presumption that custody should be awarded to a parent. However, this presumption can be rebutted by clear and convincing evidence, which means that the evidence you provide the court indicates that it is highly probable or reasonably certain that it is not in the child’s best interest for custody to be awarded to the parent(s).
A grandparent or great-grandparent has standing to pursue partial physical custody or supervised physical custody (1) when the parent is deceased, (2) when the parents of the child have been separated for at least six months or started an action for divorce or (3) when the child has resided with the grandparent for at least 12 consecutive months, excluding brief temporary absences of the child from the home, and is removed from the home by the parents (* in this instance, the case must be filed within 6 months of the child being removed from the grandparents care).
If a grandparent or great-grandparent seeks partial custody in cases of death of parent of separation or divorce, the court will consider (1) the amount of personal contact between the child and the party, (2) whether the award interferes with the parent-child relationship, and (3) whether the award of custody is in the best interest of the child. If the child has lived with the grandparent for 12 consecutive months, the court will only consider (1) whether the award interferes with the parent-child relationship and (2) whether the award is in the best interest of the child.
It is important to note that any rights to seek physical custody or legal custody rights and any custody rights that have been granted under the framework set forth above to a grandparent or great-grandparent prior to the adoption of the child by an individual other than a stepparent, will be automatically terminated upon such adoption.
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