When a mother and father divorce, child custody issues must be resolved. Preferably, these issues are settled through an agreement before the parents reach the courthouse.
Michael T. Malarick is an experienced Delaware County child custody attorney in Boothwyn, PA who handles child custody cases in a sensitive and compassionate manner. The law office of Michael T. Malarick handles child custody matters in and around Delaware County, Boothwyn, Philadelphia, Upper Darby, Springfield, Marcus Hook, Drexel Hill and more. Call for a free initial child custody consultation today.
The first issue to resolve is who has legal custody and who has physical custody. Legal custody is the right to make major decisions for the child such as medical, religious, and educational decisions. Sole legal custody is vested in one parent. Shared legal custody is vested in both parents and requires them to confer with each other before making major decisions regarding the child.
Physical custody is the right to have the child in your care and to make everyday decisions for the child. In Pennsylvania, there are 5 types of physical custody. Sole physical custody is where one parent has exclusive physical control of the child. Shared physical custody is where two or more assume physical control of the child with each having significant periods of actual custody. Primary physical custody is where one has control of the child the majority of the time. Partial physical custody is where one has control of the child less than a majority of the time. Supervised physical custody is where an agency or adult, designated by the court or agreed upon by the parties, monitors the interaction with the child.
How is Child Custody Awarded
Ideally, child custody issues are resolved through agreement or mediation. Otherwise, the court will make custody determinations which are in the best interest of the child. When making custody determinations, the court will consider 16 factors. These factors are:
1) who is more likely to permit frequent and continuing contact between the child and the other;
2) present or past abuse committed, whether there is risk of harm to the child, and who can better provide supervision;
3) the parental duties performed by each for the child;
4) the need for stability in the child’s education, and family and community life;
5) the availability of an extended family;
6) the child’s sibling relationships;
7) the well-reasoned preference of the child based on maturity and judgment;
8) any attempt of a parent to turn the child against the other;
9) which parent is more likely to maintain a loving and stable relationship with the child;
10) which parent is more likely to attend to the daily needs of the child;
11) the proximity of the two parent’s households;
12) each parent’s availability to care for the child or make child-care arrangements;
13) the level of conflict between the parents and their ability to cooperate;
14) any history of drug or alcohol abuse;
15) the mental and physical condition of the parents; and
16) any other relevant factor.
When making a custody determination, no parent shall receive a preference based upon their gender. However, when making a custody determination regarding primary physical custody, the Judge may make the following presumptions:
1) between parents–there shall be no presumption that custody should be awarded to a particular parent;
2) between a parent and a third party– there shall be a presumption that custody should be awarded the parent which may be rebutted by clear and convincing evidence; and
3) between non-parents– there shall be no presumption that custody should be awarded to a particular party.
How is Custody Enforced
Once an agreement or judicial determination as to custody has been entered, there must be compliance with that order. A parent who willfully fails to comply with any custody order may be found in contempt of court. The penalties for such contempt may be:
1) imprisonment for not more than six months;
2) a fine of not more than $500;
3) probation for not more than six months; and
4) an award of attorney fees and costs.
Modification of a Custody Order
A custody order may be modified through a stipulated modification agreement. Such an agreement upon stipulation should be presented to the court for approval.
If an agreement can not be reached, then a petition for modification must be filed. If the modification is in the best interest of the child, the court can issue a revised order. The petition should allege a substantial change in circumstances such as where a parent begins drug use or heavy alcohol use, or a change in work schedule which jeopardizes the safety of the child.
Child Custody and Relocation
Generally, people are able to relocate for any reason or for no reason at all. However, when a parent who is subject to a custody order wishes to relocate, the relocation must be done by agreement or court approval, and with notice to everyone with custodial rights. The statute simply states that “No relocation shall occur unless” everyone with custodial rights consents or the court approves the proposed relocation. 23 PA CS 5337.
The individual proposing the relocation must notify everyone with custodial rights by certified mail, return receipt requested, no later than 60 days before the relocation or 10 days after learning of the relocation if within the 60 day period. This notice must include:
1) the new address and/or mailing address;
2) the names and ages of those to be living at the new address;
3) the new telephone;
4) the new school district and school;
5) the date of the proposed relocation;
6) the reason for the proposed relocation;
7) the proposed revised custody schedule;
8) a counter-affidavit with which to oppose the proposed relocation; and
9) a warning to the other that if no objection is filed within 30 days after receipt of the notice, an objection to the proposed relocation is foreclosed.
If the other party objects to the proposed relocation or modified custody order, an expedited hearing will be held.
What is Child Support
While both parents have a financial responsibility to support their children, the non-custodial parent is usually required to pay child support until the child is 18 years old. A prenuptial or postnuptial agreement may extend child support through the college years.
The amount of child support may be made by agreement or by filing a complaint for support. The amount of child support is base on the income of both parents and the number of children involve.
For more information, call our experienced child custody attorney today for a free initial consultation.