A Quick Understanding of Pennsylvania Child Custody Laws
                     A Quick Understanding of Pennsylvania Child Custody Laws
In  2011,  the  Pennsylvania  legislature  passed  Act  112  of  2010.  This
legislation significantly  changed  the  child  custody  law  in  Pennsylvania.
Parents who find themselves in a fight for custody of a child should know the
basics of the Pennsylvania child custody law and how the law is applied in
Montgomery County, Pennsylvania.
PHYSICAL CUSTODY AND LEGAL CUSTODY
Child  custody  consists  of  physical  custody  and  legal  custody.  Physical
custody is the actual possession and control of a minor child. Generally, the
court will determine whether a parent should have primary physical custody,
partial  physical  custody,  joint  physical  custody,  or  visitation.  Primary
physical custody means that one party gets to spend most of the custodial
time with a minor child. Shared or joint physical custody generally means
that  both parents  will  share equally  in the overnight  periods of  custody.
Partial physical custody is the right of one parent to have possession of the
child that may include overnights, but the other parent is exercising primary
physical custody. Visitation refers to designated times and conditions under
which the noncustodial parent sees the child apart from the custodial parent.
Legal custody is the right to make important decisions that affect the minor
child.  These  decisions  include  medical  care,  education,  dental  care,  and
religious instruction.
Pennsylvania courts often grant shared legal custody to parents unless the
circumstances prevent the parents from being able to cooperate with each
other regarding these important decisions. Physical custody, on the other
hand, is often subject to legal scrutiny and litigation.
DETERMINING PHYSICAL CUSTODY
All child custody cases are unique, and attention must be given to specific
factors established in the child custody law when determining how a court
will  most  likely  determine  physical  custody.  Generally,  the  paramount
concern  is  the  best  interests  of  the  child.  Courts  often  face  the  difficult
decision of rendering primary physical custody to one parent or ordering a
shared  physical  custody  arrangement.  The  “best  interests  of  the  child”
standard requires a case-by-case assessment of  all  the factors  that may
legitimately affect the physical, intellectual, moral and spiritual well-being of
the child. Of course, this can be a subjective opinion and people can have
different views on how this standard is to be applied. For example, should
the courts  consider that a parent seeking primary custody has a greater
income and can give the child access to better schools and medical care?
Should the courts consider religion, race and ancestry? Should the courts
only look to maintain the intimacy and security that the child has with one
parent that may have been a closer caregiver to the child at a young age?
The Pennsylvania legislature established factors in the child custody law to
help  parents,  conciliators  and  Judges  evaluate  a  physical  custody
arrangement that is  in the best interest  of the child.  The factors can be
summarized as follows:
 which parent is likely to encourage frequent contact between the child and
the other parent;
 any instances of abuse and any continued risk of harm to the child;
 the parental duties performed by each parent on behalf of the child;
 the need for stability in the child’s education, family life and community life;
 the availability of extended family;
 the child’s sibling relationships;
 the preference of the child, based on the child’s maturity and judgment;
 any attempts of a parent to turn the child against the other parent;
 which  parent  is  more  likely  to  maintain  a  loving,  stable,  consistent  and
nurturing  relationship  with  the  child  adequate  for  the  child’s  emotional
needs;
 which  parent  is  more  likely  to  attend  to  the  daily  physical,  emotional,
developmental, educational and special needs of the child;
 the proximity of the residences of the parents;
 each party’s availability to care for the child;
 the ability of the parents to cooperate with one another;
 the history of drug or alcohol abuse of a parent;
 the mental and physical condition of a parent; and
 any other relevant factor.
Prior  to  the  2011  revisions  to  the  child  custody  law,  Courts  historically
granted  primary  physical  custody  of  the  child  to  the  mother  and  partial
custody or visitation to the father, unless the circumstances were obvious
enough to require a different arrangement. Courts would rarely interrupt this
pattern unless the mother was deemed unfit or when the parents proved
that they could cooperate with one another in the parenting of the child.
After  the  custody  law  changed  in  2011,  Judges  and  conciliators  made
decisions with less bias and presumptions against the father. Courts began
to apply the “best interest of the child” factors with an eye towards an equal
involvement by both parents when practical.
CHILD CUSTODY PROCESS IN MONTGOMERY COUNTY, PA
Filing the Child Custody Complaint. In Montgomery County, Pennsylvania, a
parent who wants to establish physical and legal custody must file a Custody
Complaint. The Complaint must identify the parents, the child or children
and the type of custody sought. The Complaint is filed with the Montgomery
County Office of the Prothonotary and then served on the other parent.
1. Filing the Child Custody Complaint. In Montgomery County, Pennsylvania,
a  parent  who  wants  to  establish  physical  and  legal  custody  must  file  a
Custody Complaint.  The Complaint must identify the parents,  the child or
children  and the type  of  custody sought.  The Complaint  is  filed with the
Montgomery County Office of the Prothonotary and then served on the other
parent.
2. Mediation  Orientation. When  a  Custody  Complaint  is  filed,  the
Prothonotary’s Office will assign a Mediator to the case. Mediation Orientation
is generally mandatory. The parties must contact the Mediator within seven
(7) days of filing the Complaint. The Mediation Orientation session must be
conducted within twenty (20) days of the filing date. Attorneys for the parties
are not  permitted to  attend and the  Orientation is  kept  confidential.  The
Mediator must have a post-graduate degree in law or a mental health field
such as psychiatry, psychology, counseling or family therapy. The Mediation
Orientation lasts up to two (2) hours. The Mediator will report the parties’
attendance and compliance via the filing of a Certificate of Compliance. The
cost for mediation must be equally divided between the parties. The objective
of Mediation Orientation is to establish an environment of fairness, establish
a positive discussion with the parents, and provide a reality for both parents
for the future co-parenting of the child.  The Mediator will  try to help the
parents resolve the custody matter, educate the parents as to the custody
process,  and  screen  for  abuse.  If  the  Mediator  can  help  facilitate  an
agreement,  then  the  parents  can  sign  a  Memorandum  of
Agreement/Understanding.
3. Educational  Seminar. The  Montgomery  County,  PA  local  rules  of  court
require  parents  to  attend an approved education  seminar  on the  general
responsibilities of separated and divorced parents. The seminar is taught by
licensed  mental  health  professionals  who  have  experience  working  with
children and families.  The seminar objective is to educate parents on the
needs of the children and help the parents focus on those needs.
4. Custody Conciliation Conference. When an agreement cannot be reached
with the Mediator and the parents have completed the education seminar,
the case will proceed to a Conciliation Conference. The parents will receive
notice in the mail of the date of the Conciliation Conference. The conciliator is
an attorney appointed by the Court to resolve the custody dispute. In 2019,
custody conciliators were permitted to issue interim custody orders for cases
that do not have an existing order. This was a significant change because
children  and  parents  can  now  receive  immediate  certainty  about  a  child
custody schedule. The parents also have the benefit of receiving insight into
the conciliator’s thoughts and analysis of the situation that led to the interim
order. With this increased role and function of the custody conciliator, it is
now more important than ever for parents to be represented by an attorney
at  this  stage.  If  the  case  is  resolved  at  the  Conciliation  Conference,  an
Agreed Order will be submitted to the Court for the Judge to sign.
5. Short  List  Hearing. If  the  case  is  still  not  resolved  after  the  Custody
Conciliation,  then the parents will  receive a notice of  the scheduling of a
short list hearing before a Judge. Judges will emphasize the need for parties
and their attorneys to attend an in-person hearing to discuss settlement and
to  narrow  the  issues  for  trial.  Attorneys  should  be  prepared  to  identify
witnesses who will be called for trial, whether there is a need for a home
study  or  other  expert  intervention,  and  other  unique  matters.  After
discussion and careful  consideration of  the matters before the Court,  the
Judge will schedule a protracted custody hearing.
6. Custody Hearing. When a case goes to a child custody hearing, the case
will take place in a courtroom and the Judge will serve as the trier of fact.
Ultimately, the Judge will hear testimony and consider evidence to render a
decision based on application of the evidence to each of the child custody
factors. Experienced child custody lawyers will prepare and present a case
on the parent’s behalf. Testimony from the child’s parents, other witnesses,
family members, experts (counselors, therapists, behavioral specialists, etc.)
and possibly the child, will almost certainly be presented in any custody trial.
Documentation can also be key evidence. Experienced child custody lawyers
will know the questions to ask on direct examination and how to effectively
cross examine the other parent and other witnesses.
CHILD CUSTODY AGREEMENTS
Disputes for child custody can be resolved at any stage of the process by
agreement. In addition to the factors for determining custody as described
above,  there  are  practical  considerations  for  determining  custody.  These
practical considerations include each parent’s  work schedule,  whether the
children are in school, where the parents live in relation to each other, and
so on. Regardless if a parent has primary, joint, or partial physical custody,
both parents should agree on a schedule of each of the parent’s custodial
time. The schedule will specify the days of the week and the times that the
parents have custodial time, including overnights.
While  most  child  custody  agreements  revolve  around  the  day-to-day
schedule of the children,  it  is  important to have a separate schedule for
holidays,  vacations,  and  special  events.  While  parents  typically  agree  to
alternate annual holiday schedules every year, each family is different, and
parents can structure their holiday schedules as they see fit. Similarly, these
agreements should state whether parents will be allowed to take children on
extended vacations, and if so, for how many days each year and whether it
must be done during their scheduled custody time.
By  having  a  written  physical  custody  agreement,  parents  can  establish
physical custody rights which they can rely upon and which they can enforce
in Court, if necessary. An established custody schedule will also add stability
to the child’s development and his or her relationship with both parents. If a
modification of the written agreement is needed or wanted, then the parents
can re-negotiate a modification to the written agreement. Or, if the parents
are amicable,  they can modify the agreement as necessary as situations
arise without necessarily having to modify the written agreement.
HIRING A MONTGOMERY COUNTY, PA CHILD CUSTODY LAWYER
A  parent  involved  in  a  child  custody  dispute  in  Montgomery  County,
Pennsylvania  should  consider  hiring  a  child  custody  lawyer  who  has
experience with the Montgomery County< PA court system. A child custody
lawyer can assist the parent with guidance and advice, drafting the Custody
Complaint, preparing the case for trial, and presenting the witnesses and
evidence to the Court on the parent’s behalf.
Fighting  for  custodial  rights  of  a  child  is  perhaps  the  most  important
situation  that  a  parent  will  ever  be  involved  in.  Nothing  can  replace
preparation  and  diligence,  except  being  a  good  parent.  Parents  should
always be encouraged to set their differences with the other parent when
decisions are made concerning the child. A parent should never take their
custody time for granted and should always make the most of it.
If you are involved in a child custody dispute, please call the Martin Law Firm
today at 215-646-3980 and speak with a child custody lawyer.