Changes to PA Custody Law
Some significant changes were made to the Pennsylvania Child Custody laws on January 24, 2011. While the standard used by the court remains the "best interests of the child," the analysis of that standard was modified. The court will examine 16 factors in making its decision as to the best environment for the child to succeed.
Act 112 of 2010 controls A copy of the actual law can be seen by clicking here.
Some of the important highlights:
DEFINITIONS
"Child" - an unemancipated individual under 18 years of age
"Legal Custody" - the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions
"Parental Duties" - includes meeting the physical, emotional and social needs of the child
"Partial Physical Custody" - the right to assume physical custody of the child for less than a majority of the time
"Physical Custody" - the actual physical possession and control of a child
"Primary Physical Custody" - the right to assume physical custody of the child for the majority of time
"Relocation" - a change in a residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights
"Shared Legal Custody" - the right of more than one individual to legal custody of the child
"Shared Physical Custody" - the right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child
"Sole Legal Custody" - the right of one individual to exclusive legal custody of the child
"Sole Physical Custody" - the right of one individual to exclusive physical custody of the child
"Supervised Physical Custody"- custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights
PARTIAL CUSTODY
Gone is the term "visitation." Instead, the law now reads as "partial custody." Essentially this is the same concept, but the language may make people feel better. Instead of telling someone you only have visitation with your children you can now say you have partial custody. Other than changing the words there is no discrenible difference in the exercise of custody.
WRITTEN OPINION
Whenever a court awards custody, it must state its reasons for the decision that was made. This must be done either in an Opinion or on the record in open court, so that a transcript may be acquired. By forcing the court to commemorate its opinion, the law allows a party not satisfied with the ruling to appeal that ruling based on specific findings. It also prevents the court from coming back later and presenting a different reasoning for its decision in hindsight.
PARTIES LIVING TOGETHER
The law allows parents living separate and apart but in the same residence to petition the court for custody, but any Order will only be effective after one of the parties leaves or one of the parties is given exclusive possession of the residence by the court.
STANDING
Slight modifications allowing: a parent; a person in loco parentis; a grandparent not in loco parentis who has had a relationship with the child by parent consent or court order and the child is dependent, at risk, or has lived with the grandparent for at least 12 months.
GRANDPARENT STANDING
Grandparents or great-grandparents can file for partial custody or supervised custody when the parent they are related to passes away, when the parents are separated or in the process of divorce for at least 6 months, or when the child has lived with the grandparents for at least 12 months.
EFFECT OF ADOPTION
Grandparents who receive any sort of custody of a child lose such custody if the child is adopted and also lose the ability to seek custody if they have not up to that point.
PRESUMPTIONS
Neither parent is presumed to be a better caretaker for the child because of gender. Without clear and convincing evidence, a parent is always presumed to be the better caretaker for a child as opposed to a nonparent. If custody is disputed by two nonparents, there is no presumption for either.
CUSTODY FACTORS
1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
2. The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
3. The parental duties performed by each party on behalf of the child.
4. The need for stability and continuity in the child's education, family life and community life.
5. The availability of extended family.
6. The child's sibling relationships.
7. The well-reasoned preference of the child, based on the child's maturity and judgment.
8. The attempts of a parent to turn the child against the other parent, except in cases of domestic violence
where reasonable safety measures are necessary to protect the child from harm.
9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
10. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
11. The proximity of the residences of the parties.
12. Each party's availability to care for the child or ability to make appropriate child-care arrangements.
13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
14. The history of drug or alcohol abuse of a party or member of a party's household.
15. The mental and physical condition of a party or member of a party's household.
16. Any other relevant factor.
CRIMINAL CONVICTIONS
Every party to a custody case must fill out an affidavit detailing any criminal history and the specific offenses if any that led to convictions or guilty pleas. The court may take those convictions into account when determining the award of custody to that party.
GUARDIAN AD LITEM
The court of a party may appoint a guardian ad litem to represent a child in a custody proceeding. The guardian represents the legal and best interests of the child in the proceeding. The guardian may conduct an investigation into the proceeding, interview any person related to the custody matter, review all related paperwork, participate in the proceedings, make a written report to the court with recommendations, explain the proceedings to the child as best as possible, and advise the court as to the child's wishes as well as possible.
RELOCATION
For any relocation the other party must consent or the court grant the relocation. Written notice must be served upon the non-moving party with forms necessary by rule. The non-moving party may object to the relocation by filing a form and the court must then decide at a hearing whether the relocation should be granted. The burden is always on the parent seeking to relocate.
The hearing for a relocation focuses on the following factors:
1. The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child's life.
2. The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child.
3. The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
4. The child's preference, taking into consideration the age and maturity of the child.
5. Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
6. Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
7. Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
8. The reasons and motivation of each party for seeking or opposing the relocation.
9. The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party.
10. Any other factor affecting the best interest of the child.
