Securing custody agreements parents can live with
By Erin Komada of Scaringi Law posted in Family Law on Friday, May 1, 2015.
One of the most complex and emotionally difficult issues when parents separate is how to manage custody of their children.
Custody plans the force of law. But when parents first separate, many may
try to manage the housing and care of their children by working out a
plan of their own.
An unfortunate reality is that when the inevitable arguments arise during a prolonged separation or divorce, it's not unusual to see these unofficial custody agreements fall apart. It's especially common when one of the parents begins seeing someone who then begins spending time with the children.
As an attorney at Scaringi Law, where I focus my practice on family law, divorce and child custody, I always give these parents the same warning: Should the other parent ever fail to hold up his or her end of the unofficial child custody arrangement, there will be no legal recourse to enforce it.
Types of custody
"Physical custody" addresses where the child will physically be present, i.e. in whose home will the child reside. Physical custody can be shared, or one parent can be awarded primary physical custody, or partial physical custody. Additionally, "legal custody" addresses which parent makes decisions that are important to the child's development.
Shared physical custody: The parents equally split the time that they have the child in their respective homes. There is give and take over the exact calendar for dividing the time, and parents can choose a schedule that best fits their needs and the needs of their children.
Primary and partial physical custody: One parent is granted primary physical custody, while the other parent is left with partial custody, which amounts to visits by the child, usually every other weekend and, perhaps, a weekly dinner. The exact schedule is subject to some leeway.
Legal custody: This covers the right of one or both parents to have a say over key decisions made for and about the child such as education, medical care and permission to play sports and the like. Legal custody can be shared, but in certain circumstances, one parent may be awarded sole legal custody.
I always urge parents to never waive their right to legal custody over their child, even when the other parent is granted primary physical custody. This preserves the right of both parents to have some say in their child's life.
Determining the right custody order
In Pennsylvania, there are statutory factors that guide the courts when determining custody arrangements.
These factors include, but are not limited to:
- Proximity of the parents' residences
- Current role either parent is playing in the emotional, educational and developmental growth of the child
- The child's other relationships with any nearby extended family.
Of course, the suitability of each parent is also at issue. If there is evidence of past domestic abuse or if parent has had issues with drug or alcohol abuse, this will influence the final custody order.
If one parent has any established abuse or character issues, or plans to move far from where the child goes to school and has his or her friends and relationships with other family members, then this parent is on a path toward partial custody. A shared custody agreement is more likely between parents who are closely matched in terms of their physical location and their positive involvement in the child's life.
Parents put to the test
The path toward a custody order begins with filing a custody complaint with the county Court of Common Pleas. This filing can be done at any time, but many parents do this as the first step in a separation.
This order will affect other issues, such as child support. Even a parent with shared physical custody can receive child support if the child's other parent has greater income.
Within a few weeks of filing for a custody order, a court conciliator - typically an attorney - is assigned to work with both parents on a custody agreement. If an agreement is reached, it goes before the judge for the official custody order. When the parents cannot agree, the case heads for a hearing.
In most cases the judge will want to talk with the child, either in court or privately in the judge's chambers, should the child be old enough to give meaningful input on his or her domestic situation. From the facts presented at the hearing, and after weighing the statutory factors, the judge issues a custody order that is in line with Pennsylvania's guiding legal principle of putting the best interests of the child first.
Custody orders can change
No one is at his or her best when a relationship is ending and the family is being fractured. But parents must keep their cool in these situations, or they risk having their custodial time diminish.
The saving grace is that no custody order is permanent. Under state law, a parent can request a judge's review of a custody order at any time. However, it is best for a parent to wait to request a revision until he or she can point to new circumstances that merit a change.
If your family is undergoing a transition that could require a custody order to protect your children and your relationship with them, don't hesitate to call. We fight for families such as yours every day.