Tag Archives: child custody

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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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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Attorney Hovey Secured Major Victory in International Child Abduction Case

We at Prince Law Offices, P.C. are proud to announce a major victory secured by Attorney Matthew T. Hovey in an International Child Abduction case arising out Montgomery County, Pennsylvania.

Attorney Hovey represents the father in the matter, a resident of Montgomery County for several years, but still a Peruvian citizen.  The father’s wife, who is the mother of their child, is also a Peruvian citizen.  In the fall of 2010, father and mother traveled with the child on a holiday to visit family back in Peru.  At the planned conclusion of the vacation, father returned to Montgomery County to resume work, but mother decided to remain behind with the child and visit family.  Return tickets were purchased for the mother and the child with a new set return date.  Mother, however, never returned with the child and then disappeared for a few months.  After several return trips to Peru, the father finally tracked down the mother and the child, but could not secure their return.

Attorney Hovey in coordination with the Department of State of the United States filed dual actions in both Montgomery County and Peru.  Mother challenged Montgomery County’s jurisdiction.  Recently, the Court of Common Pleas of Montgomery County dismissed mother’s challenge to jurisdiction and found that mother wrongfully withheld and hid the child from the father and ordered the immediate return of the child to Montgomery County.

The return of the child, however, is contingent on the second half of the action filed under the Hague Treaty on International Child Abduction and led by the United States Department of State in coordination with the Central Authority of Peru.  Under the Hague Treaty on Child Abduction, if a child is wrongfully held in a foreign jurisdiction, that participating country is to return the child to the home country for determination on custody.  Here, the Montgomery County decision bolsters the case in Peru.  A decision on the Hague case is expected March 2012.

Earlier this year, Attorney Hovey secured the return of two children abducted by their mother to Texas.  If you, a family member, or friend are victim of domestic or international child abduction, please contact our office immediately.  Time is always of the essence in these type of cases.  Free initial consultation are available.

DISCLAIMER: THE OUTCOME OF A CASE DEPENDS ON A NUMBER OF CASE-SPECIFIC FACTORS; ATTORNEY MAKES NO GUARANTEE AS TO THE OUTCOME OF ANY PARTICULAR CASE; CASE RESULTS MAY VARY.

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Attorney Hovey Secures Return of Children Abducted to Texas

In the fall of 2010, two young children were surreptitiously taken by their mother from Montgomery County, Pennsylvania to Texas. This move was initiated while the father was at work and done without his knowledge or consent. The father retained Matthew T. Hovey, Esquire of Prince Law Offices.

We at Prince Law Offices, P.C. are proud to announce that, following the initiation of an Emergency Custody action and a subsequent trial, Attorney Hovey secured the return of the children to Montgomery County and obtained substantial physical custody for the Father. In addition, the Order of Court included protections to prevent against future abduction of the children.

DISCLAIMER: THE OUTCOME OF A CASE DEPENDS ON A NUMBER OF CASE-SPECIFIC FACTORS; ATTORNEY MAKES NO GUARANTEE AS TO THE OUTCOME OF ANY PARTICULAR CASE; CASE RESULTS MAY VARY.

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