PA Custody and Visitation Laws
Jurisdiction to Determine Pennsylvania Custody Cases
Before any court can make a custody determination, the court must have jurisdiction to enter the custody order. Jurisdiction is another way of saying that the court has the authority to enter an order on a particular case. Pennsylvania has recently adopted the Uniform Child Custody Jurisdiction & Enforcement Act, the UCCJEA, that sets forth the rules regarding which court has jurisdiction to enter a custody order. The UCCJEA provides that the court in the county and state where the minor child has lived for the six month period of time preceding a custody action is generally the court that has jurisdiction to determine the appropriate custody order. The UCCJEA also provides that if there has been a prior order regarding custody, the court that originally entered the order will be the court to modify the prior order unless that court decides that another county court would be the more appropriate forum.
Who Has Standing to Pursue a Custody Action?
Generally speaking, only a child's biological parents can file a Custody Complaint and seek custody rights with regard to their minor child. In very, very limited circumstances, third parties are granted the rights to seek partial or primary custody of a minor child. Third parties are generally only permitted to seek partial or primary custody if said rights are specifically set forth under state statutes such as the Grandparent Visitation Statutes or if the third parties are granted standing under common law principles such as when the person has acted like a parent to a child whose parent did not reside in the same household. The later type of standing is called "in loco parentis" meaning acting like a parent.
PA Laws regarding Physical Custody
Physical custody is the actual physical possession and control of a minor child. Pennsylvania statutes further define physical custody based upon the amount of overnights each parent or third party spends with the minor child or children. A parent or third party may have sole physical custody, primary physical custody, partial physical custody, shared physical custody, or visitation. Visitation is the right to spend time with a minor child or minor children, but not the right to remove the child or children from the custodial parent's control. Partial custody is the right to take possession of a minor child or minor children away from the custodial parent and may include the right to have overnight custody with the child or children. Shared physical custody (sometimes referred to as joint physical custody) is the term used to designate frequent and continuing contact between the child or children and his or her parents and is the term generally used when both parents have almost equal overnight periods of custody. Primary custody is the right of one parent to have the majority of custodial time with a minor child or minor children. Sole physical custody is rarely awarded. Sole custody is the award of custody rights to one parent with no custody rights to the other parent.
PA Laws regarding Legal Custody
In Pennsylvania, legal custody is the right to make important decisions that impact children including decisions regarding education, religion, and medical care. If PA parents are able to cooperate in any minimal fashion, legal custody is often shared between the parents. Under a PA shared legal custody arrangement, the parent who has physical custody on a given day makes routine day-to-day decisions impacting a minor child and the parties share the responsibility for making major decisions.
How is custody decided in Pennsylvania courts?
Most of the time, parents are able to come to an agreement on the best type of custody arrangement for them and the children. After all, isn't it better for the parents to decide what is the best custody arrangement for their children rather than a judge who doesn't know the parents or children? Even when the parents are angry at each other, hopefully they can step back from their anger (read article) and realize that both parents play an important role in their children's lives.
However, in some cases, the parents are not able to speak to each other without fighting let alone come to an agreement regarding custody. If the parents are not able to agree on a custodial arrangement, court action may be necessary. The formal legal process begins with the filing of a custody complaint. Generally, the complaint is filed in the state and county where the child has lived for the past six months.
After filing the PA custody complaint and prior to any scheduled court dates, some counties require that the parents and children over a certain age attend a seminar that explains the court process, the emotional impact upon the children of the parents' separation and the legal process. In Allegheny County, the parents in a custody action must also attend a mediation session with a court appointed mediator. If the custody problems are not resolved by mediation or if no mediation program exists, usually the initial court hearing involves a conference with a court-appointed custody master or hearing officer. The custody master or hearing officer is not an elected judge; he or she is a court employee who is assigned to try to assist parties in resolving custody disputes.
If an agreement cannot be made at the conference before the custody master or hearing officer, home studies and/or psychological evaluations of the parents and children may be ordered. Once the psychological evaluations are completed and a report is issued, a hearing is then conducted and the court will determine the custodial arrangement that is in the best interests and welfare of the children. The PA best interests of the child analysis includes consideration of all factors which have an effect upon the child's physical, intellectual, moral, and spiritual well-being. The best interests of the child analysis generally includes consideration of any prior custody arrangements including the amount of time each parent has spent with the child in the past; the involvement of each parent in the child's school, religious upbringing and medical care; whether there are other siblings or half-siblings in either parent's residence; the child's preference if the child can articulate a justifiable reason for the preference; the school district where each parent resides and the distance between the parents' residences; whether either parent or the children suffer from any psychological or physical conditions; whether either parent abuses prescription or illegal drugs or alcohol; whether the parents are able to communicate and cooperate with each other regarding the children; whether either parent has attempted to undermine the other parent's custody rights; and any other factors that may impact the minor children's best interests.
Custody relocation cases in Pennsylvania
In this fast-paced world, parents often seek to move out of the county or state where they have previously resided with a minor child. It is oftentimes advisable to obtain written permission from the other parent or an order of court prior to relocating to another area, as the child may be required to be brought back to his or her former location if prior approval was not obtained. In Pennsylvania, a court hearing on whether the parent is permitted to move the minor children is called a "relocation" hearing or a "Gruber hearing", after the seminal case dealing with this issue. Whether or not a parent is permitted to relocate with the minor child or minor children depends on a number of factors including the extent of the relationship between the children and each parent prior to the request to relocate, the reasons behind the move, the reasons why the non-relocating parent wishes to prevent the move, whether the move would improve the quality of life for the children, and whether a realistic schedule for the other parent could be formulated if the relocation is granted. If an emergency exists requiring an immediate decision on a temporary basis regarding the relocation, a Plowman hearing may be scheduled for the entry of a temporary order pending the final Gruber hearing.
Modification and Enforcement of Pennsylvania Custody Orders
Once a PA custody order has been entered, the family courts expect that both parents will comply with the terms of the PA custody order. If a parent does not comply with the PA order, a contempt action can be initiated against them. If a parent is found to be in contempt for failing to comply with the custody order, the other parent can be awarded make-up time for the missed visits as well as other sanctions which could include payment of the other parent's attorney fees. The UCCJEA not only provides which court has jurisdiction to hear custody cases, the UCCJEA also sets forth methods to enforce custody orders in other counties, states and countries. Because of the potential for having sanctions imposed for violating a PA custody order, it is best to request a modification of the PA custody order if it is believed that a change in the order is in the children's best interests. A request to modify a PA custody order must be made to the family court that entered the most recent custody order even if the children no longer reside in that county. If the children have moved, the UCCJEA provides that the family court that entered the most recent custody order must decide whether it will transfer jurisdiction to the county court where the children are currently residing.
Our Pennsylvania custody lawyers
Our attorneys have litigated many child custody trials. We believe that our lawyers' efforts to fairly and objectively analyze custody cases in the early stages of litigation is one of the keys to the results our law firm has obtained for our Pennsylvania custody clients. Our lawyers often employ the use of independently retained child psychologists to assist in the preparation of a custody case and, if appropriate, to provide a critique of any court appointed child psychologist.
Contact our office by email or telephone at (412) 281-9906 for our Pittsburgh office, (724) 776-9906 for our Cranberry office, or toll-free at 1(866) PA-DIVORCE or 1(866) PA-CUSTODY for a consultation with a custody attorney regarding your child custody or grandparents' rights issues. Appointments are available in our Allegheny County offices located in downtown Pittsburgh across from the Allegheny County Family Division courthouse or in Whitehall Borough and in our Butler County office located in Cranberry Township. If you reside outside of Western Pennsylvania, our office offers consultations by telephone.
Our PA custody lawyers and staff regularly assists family law clients with custody issues in Allegheny County (Pittsburgh), Beaver County, Butler County, Washington County, and Westmoreland County (Greensburg). Our attorneys accept family law cases from Armstrong County (Kittanningy, Fayette County (Uniontown), Greene County, Indiana County, Lawrence County (New Castle), Mercer County, Somerset County and Venango County on a case-by-case basis. We welcome clients who reside in the Greater Pittsburgh and Butler areas and can meet with us in person as well as clients from other cities, states and countries. Schedule an appointment with our team of PA custody attorneys to assist you with your PA custody matter!
Appellate Cases regarding Custody including Grandparents' & Other Third Party Rights
Collins v. Collins - Custody relocation case under Gruber relocation analysis. Mother sought to relocate with the minor children to Utah to live with her parents, work part-time, and pursue a college education. After a hearing, Father, who had serious financial difficulties, had not held a full-time job for a prolonged period of time, and risked losing the marital home was awarded primary custody although trial court found mother had been primary caregiver prior to separation and court found children were more closely bonded with mother. Superior Court reversed family court and permitted mother to move out of state with the minor children to her parents' residence in Utah.
Fuehrer v. Fuehrer - Custody relocation case under Gruber relocation analysis. Mother who was married to father at time of "meeting" a man from the Netherlands via the internet sought to relocate with parties' two minor children to Netherlands were mother would be financially dependent upon the boyfriend. Superior Court reversed trial court's order permitting mother to relocate and directed that mother should maintain custody, but must exercise it in Pennsylvania. Mother was denied the right to move out of the country with the children.
Hiller v. Fausey - PA Supreme Court held that the PA Grandparent Visitation Statutes which allow grandparents to seek partial custody or visitation with their minor grandchildren are constitutional and rejected the argument that such statutes are a violation of the Due Process rights under the 14th Amendment to the US Constitution. The Supreme Court held the statute constitutional even after consideration of a fit parent's rights regarding the care, custody, and control of their minor children.
JF v. DB - PA Superior Court refused to comment on validity of surrogacy contracts. Fetus was conceived through use of sperm donated by father that was used to artificially inseminate eggs donated by an egg donor. The appellate court determined that the gestational carrier of fetus lacked standing to challenge biological father's custody of triplets and also lacked standing to seek termination of the parental rights of the egg donor.
Lawrence v. Bordner - PA Appellate Court ruled that a Protection from Abuse (PFA) order may temporarily suspend a previously entered custody order if necessary to prevent abuse.
Little-Stepp v. Cancilla and Little-Stepp - Father's adoptive mother may seek partial custody or visitation of minor grandchild under PA Grandparent Visitation statutes.
Saintz v. Rinker - Pennsylvania Superior Court affirmed family court's order transferring primary custody of child from mother to father when child expressed a desire to live with father and felt emotionally burdened by helping to raise his half-siblings. Court ordered that separation of child from his half-siblings was appropriate since the children had the same partial custody schedules with mother on her weekends of custody.
Hogrelius v. Martin - Trial court's grant of mother's request to relocate from Pennsylvania to Virginia was affirmed by Superior Court when the mother sought to relocate to reside with her new husband whose income afforded mother the opportunity to not work and provided the mother and the child a greater standard of living. In addressing the third prong of the Gruber relocation analysis, the Superior Court held that the trial court's determination is not whether the alternative schedule would maintain the current level of the non-custodial parent's interaction with the children, but rather whether the substitute arrangements will foster adequately an ongoing relationship between the non-custodial parent and the children. Hogrelius v. Martin, 2008 PA Super 111
Ottolini v. Barrett - The Superior Court held that all interviews of children in child custody litigation must be done with a court reporter present and in the presence of counsel who shall be afforded an opportunity to question the children under the court's supervision. The Superior Court further held that it was an error for the trial court to consider the report of an expert who the court directed to perform a custody evaluation without the expert appearing for the purpose of cross-examination. Ottolini v. Barrett, 2008 PA Super 154
N.H.M. v. P.O.T. - The Pennsylvania Superior Court held that transfer of primary custody of child from mother in Pennsylvania to father in California was appropriate when child had suffered emotional harm as result of sexual abuse in mother's home. The fact that the child's interview by the judge was not transcribed was held to be harmless error since testimony from other witnesses including mother confirmed the sexual contact between the child and another child living in the residence. N.H.M.v. P.O.T , 2008 PA Super 90
A.J.B.v. M.P.B. - The PA Superior Court found that the trial court committed an error when it qualified an individual holding a doctorate degree in mass communications as an expert and allowed her to testify regarding the impact on the brain of watching pornography. The Superior Court held that the expert could not testify as to the impact of father watching pornography and any consequences it might have on his child rearing and thus the expert's information was irrelevant to the custody determination and should have be excluded from trial. A.J.B.v. M.P.B., 2008 PA Super 39
Billhime v. Billhime - The Superior Court held that where minor children had relocated to Florida, Pennsylvania did not maintain a significant connection to the children and that jurisdiction to hear a modification of the existing PA custody order should have been transferred to Florida for a determination. Billhime v. Billhime, 2008 PA Super 121
Hopkins v. Byes - The PA Superior Court held that the trial court did not err or abuse its discretion by imposing $500 attorney's fees as a sanction for the mother's failure to abide by a custody order, without first ascertaining mother's ability to pay the sanction. Hopkins v. Byes, 2008 PA Super 172
Learn more, read an article
Other references on divorced parenting, divorce therapy and parent coaching
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Emery, Robert E., Renogiating Family Relationships: Divorce, Child Custody and Mediation: 1994, Guilford Press.
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Wolfe, Anthony E., Why Did You Have to Get a Divorce? And When Can I Get a Hamster? A Guide to Parenting Through Divorce. 1998, The Noonday Press.
Disclaimer
The statements in this section are based on Pennsylvania law and have been issued to inform and not advise. The statements are general in nature and individual facts in a given case may alter their application or involve other laws not referred to here.
