The Custody Process

February 11, 2014

It's important to understand the basic procedure when a new custody case starts. If you understand the steps, it's not as unreasonable when you realize that you may have to go to court more than once. *This only applies in Luzerne County, as other counties have other requirements when beginning the process and schedule hearings and conferences differently.

 

Complaint

Generally a custody proceeding will start with a complaint, whether it's filed pro se (without a lawyer) or by a lawyer. The complaint sets out who both parents are, who the children are, and in basic terms what you're looking for. With the complaint will come a rule returnable or order scheduling the initial hearing.

 

Custody Conciliation Conference

The initial conference is held before a Master, who is an attorney acting as a quasi-judge. The conference is extremely informal and there is no evidence and no record made. If the parties can't agree who should have primary custody, the Master will forward the matter to the next step. If primary and partial custody can be agreed upon, the Master can help resolve the schedules, holiday schedules, vacations, and other incidental issues.

 

Record Hearing

If the matter isn't resolved at the custody conference, or, if either party doesn't agree with what the Master decided at the custody conference, the matter proceeds to a record hearing. This hearing is before another Master, but it is much more formal. Both parties testify on the record and evidence may be introduced, along with witnesses. The Master uses the record to determine what a reasonable order should look like.

 

Exceptions

If either party is dissatisfied with the Master's recommendation, they may file exceptions. This results in a hearing before an Orphans Court judge. The hearing is limited to what exceptions were filed, meaning that the person asking for the hearing must state in list form what he has a problem with, and the court will limit the hearing to testimony on those specific matters. This hearing is on the record and both parties testify.

 

Custody Trial

If either party is completely dissatisfied with the recommendations of the Masters, they may petition the court for a custody trial. This is the most in-depth and lengthy procedure in custody law. It is exactly what it sounds like: a trial before the judge to determine who should have primary custody, what the partial custody schedule should be, who should exercise legal custody, and every other issue necessary to form a complete custody order. The parties testify on the record, evidence is introduced, witnesses testify, and any experts who have generated reports or recommendations are also called to explain their positions. At the end of the trial the judge makes a decision as to every aspect of the order, and generates a final order. Again, exceptions may be filed to this order. Also, if either party believes a serious error has been made by the judge, an appeal may be filed to the Superior Court of Pennsylvania. 

 

Contempt

Once an order is in place both parties must follow it. If either party decides he or she doesn't need to do what it says and refuses to follow its direction, the recourse is contempt. Withholding the child for a scheduled period of physical custody, consistently being late to exchanges, saying nasty things about the other parent to or in front of the children; these things are all actions that can result in a petition for contempt. Basically the party filing contempt is asking the court to punish the other party for not following the order. Sanctions include make up days, fines, attorneys fees, loss of periods of custody, and even the loss of licenses or jail time. Obviously the more severe penalties are rarely utilized, but the court will do everything in its power to make sure both parties are abiding by all of the terms that have been set.

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