Child Custody and the New PA Custody Law
With more than half of America’s children living in one-parent households, and with more than half of all marriages ending in divorce, it is not surprising that many people will be involved with child custody legal proceedings. For many, it will be their only contact with the legal system. Moreover, child custody disputes may occur numerous times, until the children reach the age of 18, requiring parents to continually communicate and cooperate as it relates to raising their children.
On November 23, 2010, Governor Rendell signed Act 112 of 2010 into law, becoming effective on January 24, 2011. Although Act 112 rewrites much of the custody law in Pennsylvania, it is not intended to dramatically change the existing custody law; rather, it is intended to “reform” current law, including provisions that strengthen current practices and confirm judicial decisions. These changes are intended to simplify and organize the process so that it makes more sense to the parties
and keeps the focus on the children.
One important change in the law is the provision which requires judges to provide an explanation of their custody decisions, either verbally, on the record, or in a written opinion. Currently, judges’ decisions can range from no explanation at all to very detailed explanations. With this change, litigants will be better assured of having a clear idea of why a particular decision was made.
Another important change involves “Parenting Plans.” In contested custody actions under the new law, judges can order both parents to submit “Parenting Plans” prior to trial. This is a practice that is used in other states - Florida, Colorado, Oregon and New Hampshire - to name a few that have standard plan guidelines. Parenting plans have also begun being used in several counties in PA, as well. The Parenting Plan will set forth each parent’s detailed proposal for custody arrangements,
including a regular and vacation and holiday schedules as well as who will make specific, enumerated decisions on behalf of the children (either or both parents) and on what bases those decisions will be made. It will also include such matters as transportation and custody exchange and how changes to the schedule will be proposed to the other party and within what time-frame. The Plan will also include suggestions for resolving disputes that arise under the agreement without having
to return to court. The Plan format will provide parents with options and alternatives to consider, with emphasis always on the ages and needs of the children as well as their family’s particular preferences and practices. These plans will require both parents to focus simultaneously on both the necessary, minor details and the “big picture” of co-parenting while recognizing that both may change as the children get older and as the parents’ circumstances change. It is this writer’s
hope that parenting plans will be used in custody cases not just when required by court order but as a valuable tool for resolving custody disputes without the necessity of litigation. Far more than just a tedious exercise, thinking these issues through and committing them to paper will undoubtedly lead to creative solutions to benefit the family without the emotionally-draining, lengthy and expensive option of litigation.
Although the standard for custody determinations continues to be ‘the best interests of the children”, the new law requires that judges consider a comprehensive list of factors in making custody determinations, including:
- Which parent is more likely to encourage and permit frequent contact with the other parent
- Parental duties of each parent
- The need for stability and continuity in the child’s education, family life, and community life
- Assuring access to siblings and extended family
- Protection for victims of domestic abuse
Another provision of the new law is that, between parents, “there is no presumption that custody should be awarded to a particular parent.” That is, there is no preference based on gender. This is not a change from the current law; however, there also was not added a presumption of “shared” custody between parents.
Finally, another significant change in the law relates to factors that must be considered and procedures that must be followed when a parent wishes to relocate. Again, these changes will, hopefully, provide the basis for more negotiated settlements and fewer court proceedings.
Below are definitions of frequently-used custody terms that have specific meanings under Pennsylvania law:
- Legal Custody: The right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.
- Shared Legal Custody: The right of more than one individual to legal custody of the child.
- Physical Custody: The actual physical possession and control of a 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.
- Partial Physical Custody: The right to assume physical custody of the child for less than a majority of the time.
- Primary Physical Custody: The right to assume physical custody of the child for the majority of time.
- Visitation: The right to visit a child. The term does not include the right to remove a child from the custodial parent’s control.
If you or a family member is involved in a contested custody matter or other family law matter, you should consult an experienced family law attorney who practices in your home county.
Beginning of Year Review Time
The beginning of the year is not only the time to start thinking about taxes, it also the time to make sure your estate plan is in order. It is a great time to review your Wills, Powers of Attorney, Life Insurance and Retirement accounts, to name a few things.
If revisions are needed you should contact your professional advisors, including your attorney, accountant and financial planner.
Read Legal Ease every other Sunday in the Pottstown Mercury.
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David A. Megay, Esq., and James C. Kovaleski, Esq., speaking at SCORE business planning seminars on 4/25/11, 9/12/11, and 11/7/11 (contact SCORE at 610-327-2673).