Tag Archives: custody

Grandparent Rights to Custody & Visitation in Pennsylvania

I recently had a client who called to inquire about the rights of her in-laws (child’s grandparents) to see her child.  She originally thought that she did not have to let them see her child.  Yes, a grandparent can file for a custody order in certain circumstances.

First of all, grandparents can seek visitation and partial custody under the “Grandparent’s Visitation Act.” 23 Pa.C.S.A. § 5321, et al.  This grants visitation or partial custody to a grandparent with the condition that this would be in the child’s best interest. In addition, the visitation or partial custody must not unduly interfere with the child’s engagement with his/her parents.

Secondly, the grandparent, who is not currently acting “in loco parentis” can file for full legal and physical custody if a number of criteria are met. These criteria are:

1. One of the parents permitted the grandparent to establish a relationship with the minor child, or the court ordered that such a relationship be allowed to form, and

2. “The grandparent is willing to take care and responsibility for the child;” and

3. When one of the following criteria is established

a. The custody court decides that the child is at risk because of abuse, drug and alcohol use, or

b. Under the ‘child abuse and neglect laws’ the court finds that the child is ‘dependant,’ or

c. The minor child has resided with the grandparent for twelve months in a row, but is later removed from the grandparent’s home by the parents. In this unique case, the grandparent has 6 months in which s/he must file for cusody.

A grand parent or a great-grandparent may further file for partial physical custody or “supervised physical custody” if:

1. The original parent died

2. Or, the child’s parents have not lived together (i.e., they have been separated) for 6 or more months, or the parties have entered a divorce proceeding,

3. Or, the child has lived with the grandparent for 12+ months in a row and is removed by the parents (similar to above.) In this particular case, the grandparent is required to file for custody within 6 months.

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Custody & Moving…What you need to know

Many of my clients ask me what is required when they move from one county to another, and even from state to state regarding the custody of their children.  In Pennsylvania, the process is called relocation and is almost as involved as custody itself.

It is clear that when a parent who does not have primary custody relocates, that parent bears the responsibility of maintaining regular contact with the child and must seek modification of the existing order to accommodate the move and to arrange the partial custody schedule for the convenience of the parties and the child.

Where a primary custodial parent relocates, that parent should bring the move to the attention of the court and modify the order to accommodate the move. The process moves faster than a custody action.  Depending on the county, the parent looking to relocate must file a Petition to Relocate and must serve the non-moving party.  With the Petition, the Parent must also include a form that allows the other party to either accept the move or not accept the move and request a hearing.  This hearing is given a “fast track” for scheduling, since most people move for work, which start dates happen quickly.

Certain questions must be answered before the court will modify the order to permit relocation.

1. The potential advantages of the move and the likelihood that the move will significantly improve the quality of life for the custodial parent and the child, and is not the result of a momentary whim on the part of the custodial parent.

2. The integrity of the motives of both the custodial parent and the non custodial parent in either seeking the move or opposing the move.

3. The availability of alternative, realistic substitute visitation or partial custody arrangements must be explored. An ongoing, positive relationship between the non custodial parent and the child should be maintained.

However, in most cases, unless it can be established that the motivation for the move is to deny a relationship between the non custodial parent and the child, the courts are unlikely to stop a relocation.

Where there is a shared custody arrangement (for instance, a near equal sharing of custody) the positive aspects of the relocation must strongly outweigh the negative effects of disrupting the existing arrangements.

Don’t let the process fool you.  This is just as involved, if not more so, than a custody matter.  You are asking the Court to take the child(ren) out of the court’s jurisdiction.  The court must do it’s due diligence to make sure the best interests of the child(ren) are being sought.  Make sure you consult with an attorney before beginning the process.  There are many pitfalls that can cause not just delay, but even the loss of custody rights when not followed.

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Child Custody – What parents should know in a nutshell

Many times I have clients asking how best to protect their child, or how to stop their ex from taking the child out of the county, state, or even the country.  The clients want their ex’s to have a relationship with the child, but not at the expense of their own relationship.  This brief article I recently came across gives you a beginning point to understand custody, who can get it, what it means, and how it can affect the parties involved.

When parents do not live together, their most difficult and serious disagreements often involve their children. It is usually best, for both the parents and the children, if the parents can agree on their own about custody and visitation, without involving lawyers and the courts.
It is important for parents to remember that their problems are not the fault of their children. When trying to solve a disagreement about custody, the most important thing for parents to keep in mind is the best interests of the children.

Custody agreements

It is usually best if the parents can agree on custody. An agreement can provide for several different arrangements about where the children will live. Here are two examples.

  • The children live with one parent, who has primary custody. The other parent may have partial physical custody (the right to take the children away from the custodial parent’s home for a limited period of time).
  • The children live with each parent for part of the time, for instance, on alternate weeks. This is called shared physical custody.

Most custody agreements also say who will make major decisions about the children for things such as medical care, religious training and education. This is called legal custody, which may be shared by the parents or exercised by just one of them.

It is very, very unusual for a parent to be denied all contact with his or her children. A parent who does not have primary physical custody will generally have the right to partial physical custody.

What if parents can’t agree?

They should try again to work out a solution that is fair to both of them, but most of all best for the children. Some communities have mediation programs or counseling services that can help parents reach an agreement. If they still can’t agree, either parent may go to an attorney for help in reaching an agreement. If that doesn’t work, custody may have to be decided by a court.

Should a parent see a lawyer even if she or he agrees with the other parent on custody?

This is usually a good idea for two reasons. First, a parent may want to make sure what his/her rights are before reaching an agreement. A fair, lasting agreement can be reached when both parents understand their rights. Second, if both parties agree, a lawyer can have the agreement entered as a legally binding court order, which can be enforced through court action if either party doesn’t obey.

What if there is no court order?

An agreement about custody is fine as long as both parents are willing to follow it. The advantage of turning a custody agreement into a court order is that the court can force the parties to follow it.

If there is no custody order, both parents have an equal right to custody, and either can lawfully take physical possession of the child at any time. However, taking the child away without the other parent’s consent can be held against you in court if that action was not reasonable. If the other parent takes the child and you cannot work out an agreement for the return of the child, you can file a custody case and ask the judge to order the child returned.

What happens in the court?

Either parent can begin a custody action in court. Either before or after a hearing is held, the judge may require the parents and the child to attend counseling sessions to try to work out an agreement, and the judge may consider the counselor’s report in reaching a decision.

If the parents still cannot agree, a hearing will be scheduled. At the hearing, each parent will be able to present his or her side of the story. Each parent can submit evidence and have witnesses testify.

How will the judge make a decision?

The judge will make a decision based on the best interests of the children and will consider everything which affects these interests. The judge will consider factors affecting the child’s safety. A judge will also consider which party is more likely to encourage and permit frequent and continuing contact between the child and the other party.

You should know that as long as you have enough income to provide for the children’s basic needs, a low income alone will not prevent you from getting custody.

The law requires that mothers and fathers be treated equally. Neither parent has an automatic advantage because of their sex.

Can a custody order be changed?

Yes. A judge, at the request of either side, may change a custody order at any time if it appears that a change would be best for the children.

Can grandparents get custody?

Grandparents (great-grandparents also in some circumstances) can ask for supervised physical custody or partial physical custody

  • If the child has lived with them for a period of 12 months or more; (if action is filed within 6 months of removal)
  • If the parent to whom they are related has died; or
  • If the parents are separated at least 6 months

In some cases a grandparent can ask the court for physical/legal custody of a child:

If the relationship began with the consent of a parent under a court order and the grandparent assumes or is willing to assume responsibility for the child and one of the following conditions is met:

  • The child is dependent
  • If the child is at risk because of abuse, neglect, drug or alcohol abuse, or mental illness on the part of the parents; OR
  • If the child resided with the grandparent for at least 12 months and is removed from home by parents( if grandparent files for custody within 6 months of removal)

As always, the court will make its decision based upon the best interest of the child.

Can other relatives get custody?

Yes, but only in special cases. Non-parents, such as aunts, uncles, or friends, can sue a parent for custody if they raised the child. If the child is dependent (neglected, abandoned, or without proper care or control), a court may give custody of the child to an agency such as Children and Youth Services, or in some cases to a non-parent.

What if a custody order is violated?

A person who disobeys any custody order may be held in contempt of court or charged with a crime and may be fined and/or jailed. The judge may also take away custody rights from someone who has disobeyed the court order. In some cases, particularly in emergencies when the child’s safety is in danger, the police may be able to help.

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Does New Pre-Birth Paternity Test Begin to Open the Door for Child Support Before Birth of Child?

By Matthew T. Hovey, Esquire

The New York Times printed an article today highlighting a new paternity test that can determine the paternity of an unborn child through a relatively noninvasive blood test. The test raises the question of whether the door is opening for financial support for unborn children. The goal of this article is to review the potential impact of pre-birth paternity tests on child support in Pennsylvania, as well as the rights of a father.

In Pennsylvania, paternity directly creates rights for a father with respect to child support and custody. As a result, its importance cannot be understated. Typically, paternity is agreed upon and not disputed. The reality, however, is that there are times when paternity can be murky. Paternity can be resolved with court intervention, usually through the child support case after the mother files against the putative father or through a legal action for paternity. Once paternity is established the father can file for custody of the child, but he may also become liable for child support. Currently, the obligation to pay support lasts from birth until at least the 18th birthday, as long as the child remains unemancipated.

The consequence is that under the current law, unless the father is known and agrees to provide support, the mother is financially on her own during the pregnancy. She will be solely responsible for the healthcare costs, including hospitalization for the actual birth. Fair or unfair, the law in this area dates back a long, long time and, at least in principal, predates paternity tests. Science is rapidly progressing, however, and a revision of the child support code may be on the horizon. If paternity can now be determined pre-birth, then it may be appropriate to ensure that the father bears the burden of the pregnancy.

Nevertheless, this potential change raises other questions and advocates for this change should consider the ancillary impact. Just as paternity of a born child gives rise to both the obligation to pay support and the benefit of custody, will the obligation of support for an unborn child also give rise to custodial or similar rights? As of now, if the mother wants to have an abortion, the father, legally speaking, is powerless to stop the abortion. Could a legally recognized pre-birth paternity test also open the door to the father having rights during the pregnancy? Could the father obtain a court order to force the mother to take certain vitamins? Or follow certain medical recommendations?

There are no answers to these questions yet, but, because of the rapid evolution of technology, now may be the time to start the conversation. Prince Law Offices wants to hear from you! Please share your thoughts in the comment section below or on our Facebook page.

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Free Knux! — but not in Pennsylvania. Can you file for custody of a pet?

By Matthew T. Hovey, Esquire

A story in the national headlines this week raises the interesting question of whether you can file for custody of a pet in Pennsylvania.  According to msnbc.com, Craig Dershowitz of New York, reportedly, spent over $60,000 in legal fees attempting to gain custody of the dog he shared with his ex-girlfriend, who now lives in California with the dog, Knuckles, a pug/beagle mix.  The case is still pending and Mr. Dershowitz is now fundraising to continue his legal cross-country legal battle, which has allegedly drained his life savings.

Fortunately for Mr. Dershowitz, the case is limited to New York and California and not Pennsylvania.  In Pennsylvania, you cannot file for custody of a pet.  To the shock of most pet lovers, in Pennsylvania, an animal is treated under the law as property, the same as your kitchen table or 401k.  If you are married, the pet would be dealt with by the court during the divorce as part of equitable distribution. If you are dating and break-up with your significant other, you would be limited to general civil actions, which may including an action for replevin.  Your remedies may be limited to money damages, which would likely be based on the retail value of the dog and will not take into consideration sentimental value.

As a result, if you and your spouse/significant other own a pet, the best protection is a written agreement that clarifies ownership and includes a provision for the resolution of any dispute over possession of the pet.  You will want to consider who owns the pet or, if you both own the pet, how is the ownership interest divided between the two of you (e.g., 50/50, 75/25).  Likewise, you will want to consider how any disputes should be resolved (e.g., private mediation, money damages to one party, right of one party to buyout the others interest).

If you and your spouse/significant other own a pet and would like to discuss a written agreement concerning the pet, please contact our office for a free initial consultation.  Our office also handles pet trusts, to provide care for your pet upon your passing, and matters of equine law.  We can be reached at 610-845-3803.

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What is Legal Custody?

By Matthew T. Hovey, Esquire

Many are surprised to learn that in Pennsylvania there are two types of custody: physical and legal.  Physical custody is how the time with the child is divided.  What then is legal custody?

23 Pa.C.S. § 5322 defines legal custody.  “Legal custody” is defined as “the right to make major decisions on behalf of the child, including but not limited to, medical, religious, and educational decisions.”  As a result, legal custody also grants the individual the access to all relevant documents for the child, including, but not limited to, medical records, report cards, and the ability to attend doctors’ visits and parent/teacher conferences, so that the individual can make informed decisions for the child.

Legal custody can be divided one of two ways: solely or jointly.  Sole legal custody is “the right of one individual to exclusive legal custody of the child.”  Shared legal custody is “the right of more than one individual to legal custody of the child.”

If legal custody is shared and the parties cannot agree on a decision, either party may petition the court for resolution.  For example, if a child requires braces, but one parent refuses to consent, then the party attempting to obtain the braces can file for court intervention.  Typically, the court will conduct a hearing in order to obtain testimony on evidence on the issue, then issue an order resolving the dispute.

If you or a family member require legal representation to help establish, effectuate, or exercise legal custody rights, please contact our office at 610-845-3803 for a free initial consultation.

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Can the Non-Custodial Parent Ever Claim the Children on Federal Taxes After a Separation or Divorce?

By Matthew T. Hovey, Esquire

It’s tax season again and the April 15th deadline is quickly approaching!  As a result, as a family law attorney, a lot of tax related questions are coming in from my clients.  A common question is: can the non-custodial parent ever claim the children on federal taxes after a separation or divorce?

The answer is yes, with the cooperation of the custodial parent (the parent with 51% or more custody).  If you and the other parent are separated or divorced, then, as long as either of you had primary custody of the child or children for the taxable year and either of you provided a majority of the support for the child or children for the taxable year, the custodial parent can transfer the claim to you, the non-custodial parent.  In order to effectuate the transfer, the custodial parent must execute IRS Form 8332 and you, the non-custodial parent, must attach the signed/executed form to your tax return.

A natural follow-up question is: why would the custodial parent agree to transfer the tax claim?  Often the transfer is part a negotiated property or custody settlement.  If the non-custodial parent is also the primary financial provider, the credit can be very valuable to them.  Additionally, those benefits can be long lasting because the children can be claimed for years and years.  As a result, it becomes a valuable bargaining chip and the custodial parent may find it beneficial to transfer the tax credit to the non-custodial parent in exchange for a larger immediate payment in a property settlement.

Lastly, what tax benefits are gained by claiming the children?  To answer this question, I’d point you an excellent article posted online by Bill Bischoff of the Wall Street Journal: Child-Related Tax Breaks After Divorce.  The article provides a breakdown of the available tax benefits.

If you are currently involved in negotiations for a property or custody settlement, please contact our office at 888-313-0416 to schedule a free initial consultation!

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