Child Custody in Pennsylvania
Child custody is used to define the legal guardianship in the everyday relationship that exists between a child and his or her parent. This relationship varies from the parent, the guardian’s duty to care for the child, and the right of the parent to make decisions on behalf of the child. Dating back to 1813, the courts of Pennsylvania have resolved child custody by a well-known standard; the “Best Interest of the Child.” This standard used by many states, gave the Pennsylvania courts the ability to evaluate each case individually and decide where the child would be best placed. In every case, the courts would start by analyzing four basic presumptions. However, effective January 24, 2011, the new child custody laws will provide the court with a blank slate in determining where it would be best to place the child.
Filing for Child Custody in Pennsylvania
In the following scenarios, any individual listed below may file an action for any form of physical or legal custody under Pennsylvania’ child custody laws. If they are found to meet any of the criteria listed, then the party will be determined to have standing. They are defined in the statute as followed.
- A child’s parent.
- A person, who is not biologically the mother or father, but acts as such.
- A child’s grandparent who is not biological to the child:
a. Whose relationship with the child began either with the consent of a parent of the child or under a court order;
b. Who assumes or is willing to assume responsibility for the child; and
c. When one of the conditions is met:
i. The child is significantly at risk of parental abuse, neglect, drug or alcohol abuse, or incapacity;
ii. Concerning juvenile matters, the child has been determined to be a dependent child, or
iii. If the child has for at least twelve months consecutively resided with, the grandparent despite temporary brief absences and the child was removed from the grandparent’s home by the parent(s). This action must be filed within six months of the parent’s removal of the child from the home.
If the proper party brings the case before the courts, they must then establish jurisdiction. Establishing jurisdiction can be done in the following scenarios:
- The home state of the child is Pennsylvania as well as the party having to have sufficient contact within the state. The child must live within the state goes to school in the state. The parent may establish having sufficient contacts by working, voting, living or paying taxes in Pennsylvania.
- The state of Pennsylvania was previously within the prior six months the home state of the child and the party who is filling for custody maintains their residence in the state. The child is not present within the state due to another person taking them out of the state claiming custody.
- At least one of the parents and the child has an association within the state with records and witness that provide sufficient evidence of the child’s present and future well-being, protection, educating, and personal relationships.
- The child was deserted and is physically present within the state or emergency protection was essential. Mainly concerning if the child was subjected or threatened with abuse or neglect
a. If one through four is proven then no other state will be able to have jurisdiction to hear the case. - Another state has determined that Pennsylvania has jurisdiction.
- If the Uniform Child Custody Jurisdiction Act (see below for a further definition) is not applicable, the child is removed from Pennsylvania, and no other state has declared jurisdiction then Pennsylvania will only have jurisdiction if:
a. If the parents are currently separated or divorced, but Pennsylvania is where they where married, lived, paid taxes, voted, etc.
b. One party is a resident and maintains their residency in Pennsylvania.
c. The court has determined that they have jurisdiction over the party who has removed the child from Pennsylvania.
i. The Uniform Child Custody Jurisdiction Act allows jurisdiction to be given for custody cases where the child has the most association. This Act has been adopted in Pennsylvania as well as forty-nine other states.
Factors in Determining Child Custody Laws in Pennsylvania
When determining who shall be awarded custody of child in the state of Pennsylvania, the courts will not allow any party to receive preference based on gender. Instead, the court shall determine the best interest of the child by weighing sixteen relevant factors.
These sixteen factors include the following:
- Which party is more likely to facilitate contact with the other party.
- Whether the child has been or is in likelihood of being abused by a party or which party is able to provide a safer environment for the child.
- The parental duties performed by each party.
- Which party is able to provide continuity and stability in the child’s education, family, and community life.
- The availability of extended family for the child.
- The child’s sibling relationships.
- If the child has been deemed not be mature in his judgment, then the well-reasoned decision of the child.
- Unless a domestic violence has occurred in which is necessary to turn the child against the other party, it will be taken into account the attempts to try and turn the child against the other parent.
- Which party is able to maintain the loving, stable, and consistent relationship with the child’s well-being.
- Which party is more likely to attend to the child’s physical, emotional, developmental, and educational needs.
- The proximity of the residences of the parties.
- The availability of the parent to care for the child or make appropriate child-care arrangements.
- The level of conflict that is in existence between the parties and their ability to cooperate with one another.
- The history of drug or alcohol abuse of a party or member of a party’s household.
- The mental and physical condition of the party or anyone residing in the party’s household.
- Moreover, any other factor deemed relevant.
Child’s Decision in Pennsylvania
A child’s wishes is one of the factors when determining child custody in that the older the child becomes, the more likely a judge will take his opinion into consideration when making the decision. The child will never solely get to decide on their own which parent they choose to live with.
Presumptions in Cases Concerning Primary Physical Custody
In any action between the parents regarding custody of the child, there shall be no existing presumption that custody should be awarded to a particular parent. When between a parent and third party, a presumption shall exist in awarding custody to the parent. However, this presumption may be rebutted by clear and convincing evidence. Lastly, when there is an action concerning the custody of the child between third parties, there shall be no presumption of awarding custody to a particular party.
Parenting Plan in Pennsylvania
When a contested custody proceeding exists, the court may request the parties to submit parenting plans for the care and custody of the child to help the court resolve the issue. However, the parental plan as well as the position of the party as defined in the plan will not be admissible as evidence by another party. The parenting plan shall include the following on a form provided by the court:
- The schedule for personal care and control of the child. This will include parenting time, holidays, and vacations;
- The child’s education and religious involvement if any;
- The health care for the child;
- Child-care arrangements;
- Transportation arrangements;
- The procedures in which proposed changes, disputes, and alleged breaches in the custody order in which can be brought through court may be solved through mediation, arbitration, or other means.
- Any matter specified by the court; and
- Any other matter that is serving the best interest of the child.
Safety Conditions in Pennsylvania
If a party has been awarded primary physical custody, but the court finds any reason for an on-going risk of harm to the child by the party awarded custody or any household member of the party awarded custody, the court shall award custody to the other party and order safety conditions designed to protect the child.
Consideration of Criminal Conviction in Pennsylvania
The court will take into consideration when a party who is seeking custody who has been or has a member of that party’s household has been either convicted, pled guilty, or no contest to any of the following offenses as well as an offense in another jurisdiction which is substantially equivalent to any of the offenses listed: A criminal homicide; an aggravated assault; a terroristic threat; stalking; kidnapping; unlawful restraint; false imprisonment; luring a child into a motor vehicle or structure; rape; statutory sexual assault; involuntary deviate sexual intercourse; sexual assault; aggravated indecent assault; indecent assault; indecent exposure; sexual intercourse with animal; conduct relating to sex offenders; arson and related offenses; incest; concealing death of child; endangering welfare of children; dealing in infant children; prosecution and related offenses; obscene and other sexual materials and performances; corruption of minors; sexual abuse of children; unlawful contact with minor; sexual exploitation of children; contempt for violation of order or agreement; driving under influence of alcohol or controlled substance; and lastly, driving after imbibing alcohol or utilizing drugs.
Temporary custody may be awarded against an existing custody order if it is shown that the party has a charged filed against them.
If either a parent has been convicted, pled guilty, or no contest to any of the following offenses, the court will evaluate whether the party or the household member of the party poses a threat to the child; and if counseling is necessary for the party or the household member of the party. If the court has determined that counseling is necessary, they will appoint a qualified professional who has specialized treatment relating to the particular offense. The counseling could include a program of treatment or individual treatment. During anytime during the counseling or after the treatment has been completed, the court may mandate another evaluation to be completed to see if further counseling is necessary. If it is found that the offending individual poses a threat of physical, emotional, or psychological harm to the child, the court may schedule a hearing to modify the custody order. In addition, the court has the ability to order a party to pay all or just part of the costs of the counseling and evaluations. Lastly, the court will never award custody to a parent who has been convicted of murdering other parent unless the child is of suitable age and is able to consent.
Parties in Same Residence in Pennsylvania
Parties who live in the same residence, but who are separated may seek relief by filing a custody order; however, the custody order shall only be effective upon one party physically vacating the residence or an order that awards one party the exclusive possession of the residence.
Grandparent Rights in Pennsylvania
Grandparents and great-grandparents may file for partial physical custody or supervised physical custody in any of the following situations:
- When the parent of the child is deceased;
- When the parents of the child have been separated for at least six months or have begun and continued the proceedings to dissolve the marriage; or
- When the child has resided with the grandparent or great-grandparent for at least twelve months, excluding brief temporary absences, and is removed from the house by the parents. The action has to be filed within six months after the removal from the home.
1. The amount of personal contact that exists between the child and the party prior to the filing of the action;
2. Whether the award is interfering with any parent-child relationship;
3. Interferes with any parent-child relationship; and
4. Is in the best interest of the child.
Grandparents and great-grandparents may file for sole legal and physical custody through a petition to intervene when they are able to prove that they are acting as the parents, in loco parentis.
Modifying Child Custody Order in Pennsylvania
Child custody orders are viewed as temporary in their nature and can always be subject to change if new circumstances affect the welfare of the child. Therefore, upon a petition being filed, a court is allowed to modify a custody order as long as it is in the best interest of the child. The petition for the modification of the child custody order may be filed at any time even when there is no evidence of substantial change in the circumstances. With degrees of custody being temporary, the finality of the order is subject to the modification of changing conditions. In other words, the newest order will be effective in regards to custody of the child.
Noncompliance with Child Custody Order in Pennsylvania
When custody is awarded, the court shall specify the terms and conditions and enable a party to enforce the court order through law enforcement authorities. If a party fails to comply with any custody order, they may be regarded as being in contempt and can be punished in the following ways:
- Imprisonment for a period of not more than six months;
a. If the party is ordered for imprisonment, they shall also be released when the specific condition is fulfilled. - A fine of not more than five-hundred dollars;
- Probation for a period of not more than six months;
- An order for nonrenewal, suspension, or denial of a driver’s licenses; or
- Counsel fees and costs of the other party.
Relocation in Pennsylvania
Relocation is any change in the child’s residence, which will considerably worsen the ability of the non-relocating party to see the child. This includes moving between counties within Pennsylvania. Therefore, any party who seeks to relocate must always provide notice to any other individual who has rights to the child.
The notice must include the address of the intended destination, the date of the proposed move, the name of the new school and district, reasons for relocating, and most importantly a proposed revised custody schedule. In addition, the relocating party must provide the non-relocating party with what is termed Counter-Affidavit Regarding Relocation. This document is a tool which allows the party to agree or object to the relocation. Once receiving this document, the non-relocating party only has thirty days to object to the relocation by filing the document with the court. If the non-relocating party fails to proceed then the court will presume that the party has consented.
If the non-relocating party fails to file the document or consents to the relocation, then the relocating party may obtain through court approval the relocation and modification of the custody schedule by filing certain documentation, thus avoiding the necessity for a court hearing. However, if the party does object then a court hearing will be necessary before the relocation. If the party was to relocate before the full hearing, there will not be a presumption in favor of the relocation. Actually, the relocating party who relocated before the hearing may receive sanctions by the court and receive a denial of the relocation.
Guardian Ad Litem for Child in Pennsylvania
The court may on its own accord appoint a guardian ad litem to represent the child in the action. For example, if during the proceeding the court is able to find that substantial allegations of abuse of the child, then the court may appoint a guardian ad litem for the child only if counsel has not been appoint or if the court is convinced that the relevant information will be presented only with such an appointment. The court will assess the cost upon the parties either to pay part or all of the costs when such appointment is made. They are mandated to conduct further investigation in which it may be necessary to gather relevant facts for presentation to the court. This may include interviewing potential witnesses such as the child’s parents and caretakers. The guardian ad litem is allowed to examine as well as cross-examine witnesses and evidence if it is in the best interest of the child.
The guardian ad litem must be an attorney at law. They are charged with the representation of the legal interests and the best interests of the child during all proceedings. They are deemed with the task of meeting with the child as soon as possible after the appointment is made as long as it is appropriate to the child’s age and maturity. They will have access to all relevant court records, reports of examination of the parents or other custodian of the child, and medical, psychological and school records.
