KAYDEN’S LAW: SEVEN NEW ENUMERATED OFFENSES ADDED

There have been significant changes to the custody statutes. When making a determination in custody, the court will consider whether either party (or member of their household) has enumerated offenses under Section 5329 of the custody statutes.  The court will determine to what extent the party (or household member) poses a risk to the child.  As a result of the amendments to the custody statute to focus on the safety of the child, the legislature has added seven new offenses to the list of enumerated offenses:

1. Simple Assault (18 Pa.C.S. Section 2701)

2. Recklessly Endangering Another Person (18 Pa.C.S. Section 2705)

3. Interference with Custody of Children (18 Pa.C.S. Section 2904)

4. Cruelty to Animals (18 Pa.C.S. Section 5533)

5. Relating to Aggravated Cruelty to Animals (18 Pa.C.S. Section 5534)

6. Relating to Animal Fighting (18 Pa.C.S. Section 5543)

7. Possession of Animal Fighting Paraphernalia (18 Pa.C.S. Section 5544)

A criminal conviction under Section 5329, is not, by itself, determine the outcome of a custody award.  The court must consider the totality of the circumstances when issuing a custody order.  

The amended rules will go into effect on August 13, 2024. To read all of the changes to the custody statutes, click HERE.

CHANGES TO SUPERVISED PHYSICAL CUSTODY IN ABUSE CASES

Pennsylvania legislature has made significant changes to the custody statutes as they pertain to safety of the child.  These changes were based on efforts related to a nation-wide campaig regarding Kayden’s Law. One of the largest changes is regarding supervised physical custody as it pertains to risk of abuse of the child.  

If a court finds by a preponderance (more likely than not) of the evidence that there is ongoing risk of abuse of the child, there is a rebuttable presumption that the court shall only allow supervised physical custody between the child and the party.  A rebuttable presumption means that the court will lean toward supervised physical custody, but a party or the parties may argue that or present evidence that supervised physical custody is not required to insure the safety of the child.  

When determining abuse, an “indicated” report from a child protective agency for physical or sexual abuse is a basis for a finding of abuse under the custody statutes, but only after a new (de novo) review of the circumstances in the finding.  An indicated report is not the only way to determine abuse.  

If the court decides to award supervised physical custody under this section, it shall favor professional supervised physical custody.  Professional supervised custody is “custodial time during which a professional, with education and training on the dynamics of domestic violence, sexual assault, child abuse, trauma and the impact of domestic violence children, oversees the interaction between the child and the individual with those custody rights and promotes the safety of the child during their interaction.”

However, the court can award non-professional supervised physical custody if the court determines that the professional supervised physical custody is not available within a reasonable distance of the parties or the court determines that the party requiring supervised physical custody is unable to pay for the professional services AND the court designates an adult to supervise the custodial visit.  This adult must appear in person before the court, sign an affidavit of accountability, and the court must make a finding, on the record, that the individual is capable of promoting the “safety of the child.” 

It’s important to note that “safety of the child” is a new definition in the revised custody statute.  “Safety of the child” includes, but is not limited to, the physical, emotional and psychological well-being the child. 

To read the full revised statutes, click HERE. You can also read more about Kayden and how her death after a judge allowed unsupervised visitation has spurned the changes in the custody statute.

IS YOUR EX’S NEW FIANCE’S INCOME A DECIDING FACTOR IN A RELOCATION CASE?

IS YOUR EX’S NEW FIANCE’S INCOME A DECIDING FACTOR IN A RELOCATION CASE?

There are several factors a court must consider in deciding whether to permit a party to relocate with the child.  A recent non-precedential Superior Court case, Manning v. Eledge, J-A01049-22, an appeal from The Court of Common Pleas of Perry County, considered whether the calculation of a Mother’s fiancé’s income resulted in an error by the trial court in granting Mother’s petition to relocate.  

The parties are the biological parents of a child born in 2013.  The parties lived together for about a year after the child was born and before their split.  In 2015, there was an award of custody, granting Mother primary physical custody of the child, and Father, partial custody with some supervised and unsupervised custodial time.  After the parents’ split, the child resided with Mother and Mother’s fiancé, and fiancé’s infant son who was born in 2020.  At the time of the relocation hearing, Mother was also pregnant with a second child from her fiancé.  

On June 16, 2021, Mother submitted a notice of proposed relocation to South Carolina.  Mother provided the following explanation:

“Mother and [ fiancé ] have been offered an opportunity to purchase maternal grandparents’ home in Little River, South Carolina.  Said home will be larger for the growing family, in substantially better condition, and significantly cheaper than their current residence.  Fiancé has secured multiple job offers in Little River, which will result in higher, more steady income than he earns at his current seasonal job.”

Father filed a counter-affidavit objecting to relocation or the modification of the custody order.  A hearing was held on August 13, 2021.  The court also conducted an interview with the child and the guardian ad litem (the GAL had been appointed upon the petition of Mother in February of 2020).

The court granted Mother’s request to relocate with the child.  It modified the custody order and provided Father with partial physical custody one weekend each month, from Friday evening until Sunday at noon.  Father would also have six (6) weeks during the summer and certain holidays.  Mother and fiancé also were willing to escort the child from South Carolina to Pennsylvania on a monthly basis.  Father filed a timely notice of appeal. 

Father’s issues for review are as follows:

1. Whether the trial court abused its discretion and/or committed an error of law in considering all relevant factors of 23 Pa.C.S. Section 5337(h) when it entered an order of court which allowed the minor child to relocate to another state.

2. Whether the trial court abused its discretion and/or committed an error of law in improperly calculating the financial benefit to the relocating party and subsequently relying heavily on the financial factor.

3. Whether [Mother] presented evidence sufficient to establish that the relocation was in the best interest of the minor child.

Is negative impact the correct test?  Father asserted that the court erroneously changed the language of the Section 5337(2) which requires the court to consider the age, developmental stage, and needs of the child, as well as the likely impact relocation will have on the child’s development.  Father states that the court focused on whether the relocation “will not negatively impact” the child.  

Fiancé’s income the determining factor?  Father also asserted that the court erred in its evaluation of Section 5337(h)(6), which requires the court to consider whether the relocation will enhance the general quality of life for the party seeking relocation.  Father argues that his calculation of fiancé’s income differed from the court’s calculation and that fiancé’s income would not increase thereby failing to meet the requirement of demonstrating an improvement in the general quality of life of the party relocating.  

Relocation is defined as a “change in residence of the child which significantly impairs the ability of a non-relocating party to exercise their custodial rights.” 23 PaC.S.A. Section 5322(a). There are 10 factors a court must consider when determining relocation:

1. The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child’s life.

2. The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.

3. The feasibility of preserving the relationship between the non-relocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

4. The child’s preference, taking into consideration the age and maturity of the child.

5. Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.

6. Whether the relocation will enhance the general quality of life for the party seeking the relocation, including but not limited to financial or emotional benefit or educational opportunity.

7. Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.

8. The reasons and motivation of each party for seeking or opposing the relocation.

9. The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.

10. Any other factor affecting the best interest of child.

The court determined found that the only special needs the child might have would be that she might be deemed gifted and would need some extra support and education.  It did not believe that was necessary at that time, but might be in the future.  The court also found the child to be in a very good developmental stage and that the relocation would “not negatively impact her educationally, emotionally, or physically.”  Father’s argue that the focus on whether there would a negative impact changed the language of the second relocation factor.  However, the  appellate court found that the trial court adequately considered Factor 2 and did not rely upon whether there was a negative impact.  

With regard to the fiancé’s job offers, the trial court considered his current income and the income for that would be earned from one of the job offers in South Carolina.  Mother, was not employed at the time of the hearing and her fiancé worked as a landscaper.  Their current residence was a two bedroom, one bathroom home in the middle of nowhere.  The new home would be near the beach, was four bedrooms and three bathrooms.  The family had saved money for the down payment and they were pre-approved for a mortgage on the property.  She also testified that they paid rent in PA at $975 a month and that the mortgage in South Carolina would be roughly $600 a month.  Fiancé’s new job would provide $40 an hour working 9-5 Monday through Friday.  His current job paid him $25 an hour working Monday through Saturday, sun up to sun down.  The court states that the fiancé’s income would be roughly $80K in South Carolina and $62K in Pennsylvania.   The court used a 50-hour week to determine the income for each job offer. The new job would also offer full benefits.  

Father argued that the court should not have based the income analysis on a 50-hour week for both jobs.  The appellate court dismisses father’s “hyper-technical analysis” of the facts of record.  The new job offered a higher hourly wage, fiancé would be able to work fewer hours, and provide full benefits.  The court found that ultimately, there was not enough evidence to show that the trial court abused is discretion in finding that the relocation would enhance the overall general quality of of life for Mother and the child. 

While Father does not argue in this case that the court erred in focusing on the fiancé’s income changes, it is important to note that the opinion suggests significant and substantial ties.  The opinion notes the facts that the parties are engaged and that Mother, fiancé, and the child had lived together since Mother and Father separated.  It also indicates that the couple is bound by a child they already have another that was on the way at the time of the hearing.  Mother was not employed and relied on the income of the fiancé and that would likely continue upon their move to South Carolina. The couple would also be purchasing her family home.  These facts suggest that court may have considered how strong the ties are between Mother and fiancé and that the likelihood of a separation of Mother and fiancé, unlikely.  

Is Your Own Technology Working Against You in Your Divorce or Custody Case?

Photo Description: Person holding a phone with an open laptop on a desk showing a Facebook homepage.

The convenience of smart phones, computers and the internet are fantastic tools for modern times. However, when contemplating a divorce or going through a custody battle, you may want to consider steps to be taken to protect yourself and your privacy. Here are a few tips to consider. 

Text Messages: You words may be used against you.  However, the opposite is also true, the text messages and emails that your spouse sends you can also be used against him/her.  It goes without saying that you should never threaten any type of violence.

You also want to keep any incriminating text messages and emails.  Also, note that your spouse may try to bait you into saying something that you will regret later. Consider whether you need to respond and whether your response can be limited.  

Apps: Another major factor to consider is your spouse’s access to location services. Some people have apps for their phone or vehicle that allow certain people access to their current location. Some of these apps have seemingly innocuous functions, like helping you find a misplaced phone or laptop. However, just like social media tracking services, anything and everything that can be used to track your current or previous locations (including GPS logs in your car), needs to be disabled if possible.

Social Media: You may want to change your social media passwords so that your spouse cannot access your accounts and post as you. Besides that first step, here are some extra security measures and tips that can help you maintain your privacy on social media sites like Facebook.

Consider whether you may want to make it more difficult for your spouse to view your posts by unfriending them and anyone who might help them view your profile. Review your account privacy setting to make sure only the people you want viewing your profile are able to do so. However, understand that this doesn’t mean your social media posts can’t be used against you; your spouse’s attorney may still be able to access them through discovery and other measures and present them in court. Because social media posts are never truly private, you should always be careful what you post. 

Email: You should consider getting a new email address and a new password. One of your first priorities should be ensuring that your spouse cannot see communications like emails and text messages to your lawyer. Also consider changing the passwords for any email accounts and the unlock codes for your phone and other devices.

While we are on the email topic: Work emails (especially if you own a business that your spouse may have an interest in) could be ‘discovered’ through requests. In other words, your spouse and/or his/her attorney could end up having access to emails you’ve sent from this address.  Here are some steps you could take to ensure your online security:

1. Create a new email address to communicate with your lawyer.

2. Change the passwords to all of your existing email accounts.

3. Check the connections to the cloud.

4. When you consult or hire an attorney, let them now if it is ok to send mail addressed to you to your home address.

Additional Security: At the same time you are changing passwords, you should consider setting up an extra layer of security known as two-step verification. This setting makes it so that any new logins or password changes will require a code (usually sent by text message to your mobile phone) to complete the login. This prevents makes it harder for someone to guess a password for a site and getting in without you knowing.

Passwords: Consider using a secure password manager such as 1Password, LastPass, or BitWarden. Not only do these password managers store your passwords securely, but many will generate secure passwords for you. 

It is important that you keep yourself, your identity and your accounts safe.

Custody and Child Support Beyond the Age of 18

How long your responsibilities (and rights) to the custody and financial support of your children will depend on the statute that you are looking at. The rules are different for the child custody, child support, and dependency (aka child services) statutes.

A recent Superior Court appeal decision highlights the importance of a child’s age during a custody matter.  In M.B.S. v. W.E., 2020 PA Super 118, mom filed an appeal of a trial court opinion that gave sole physical custody of the couple’s then 16-year-old child with mental impairments to father.  While the appellate court ultimately found that the trial court had erred in granting father’s reconsideration without a hearing or finding on the custody factors, it noted that due to child turning 18 in the same month it was making its decision would render the issue moot. It is also worth nothing that the child would be in the 10th grade and still in high school.  There could be no relief at the lower court if the case were to be remanded back to the trial court because the child would be 18 and the court would not have subject matter jurisdiction of the case.  

This opinion allows us to discuss what is a child or an unemancipated individual and how this is different under the custody, support, and juvenile statutes.  

The PA child custody court defines a child as an unemancipated child younger than 18.  This is contrast to the PA child support statute when it considers liability for support.  PA C.S. Section 4321(2) provides that parents are liable for the support of their children who are uemancipated and 18 years of age or younger.  Section (3) also provides that parents may be liable for the support of their children who are 18 years of age or older.  

Generally, the courts have held that a duty of support continues until a child reaches the age of 18 or graduates from high school, whichever occurs later.  There are exceptions this rule.  While the statutes do not provide a definition of emancipation, caselaw does indicate that circumstances to be considered include “the child’s age, marital status, ability to support herself or himself, and the desire to live independently of his or her parents.”’ Nicholason v. Follwiler, 735 A.2d 1275 (Pa. Super. 1999).  Emancipation is a question of fact.  Therefore, a parent could be responsible for support of their adult children.  While the court may order ongoing support for a child who has physical or mental impairments as it did Geiger v. Rouse, 715 A.2d 454 (Pa. Super. 1998), the court will not order a finding of custody.  The parents must seek other remedies when it comes to “custody” (such as guardianship).  

However, contrast this with a child who has been adjudicated dependent by State (in the control of child protective services). In these situations, a child can also be an individual who is under the age of 21 who committed an act of delinquency before reaching the age of 18, is under the age of 21 and was adjudicated dependent before reaching the age of 18 years, who has requested the court to retain jurisdiction and who remains under the jurisdiction of the court as a dependent child because the court has determined that the child is:

(i) completing secondary education or an equivalent credential; (ii) enrolled in an institution which provides post secondary or vocational education; (iii) participating in a program actively designed to promote or remove barriers to employment; employed for at least 80 hours per month; or incapable of doing any of the above; or (iv) due to a medical or behavioral health condition, which is supported by regularly updated information in the permanency plan of the child.  

Finally, with regard to post-secondary education, courts have recognized the obligation of a parent to continue to the college education of a child as indicated under a marital settlement agreement.  Although 23 Pa C.S. Section 4327 provided that a parent whether married, divorced, or unmarried may be responsible for the education of the child. The PA Supreme Court found the statute to be unconstitutional in Curtis v. Kline 542 Pa. 249, 666 A. 2d (1995), The Supreme Court held that Section 4327 violates the equal protection clause  of the Fourteenth Amendment and is thus unconstitutional. PA Legislature has not yet repealed the section.  

It is important to note that each statute has its own definitions which often are further defined or clarified by case law.  An understanding of those definitions, clarifications, and rule applications are essential to planning your strategy and getting an appropriate result.  

Coronavirus, Custody Exchanges, and Emergency Filings

A recent order by President Judge Idee C. Fox addresses custodial exchanges during the Governor’s Stay-at-Home Order. It also addresses emergency custody petitions. Both are addressed in this video, but a link to the Order is provided. below.

Here is a link to the documents referenced in the video:

First Judicial District of PA Admin. Governing Board Order No. 18 of 2020

Emergency Petition, Domestic Relations Information Sheet, Criminal History Verification Form

Email to Send Petition and Attachments: custodyemergency@courts.phila.gov

Kayden's Law: Proposed Senate Bill Addressing Domestic Violence in Custody Matters

A new bill has been introduced on the Senate level. SB 868 focuses on the issues of domestic violence and its potential effect on children in child custody situations. Kayden, whose parents never married, lived with her mother and stepfather in Langhorne. She was visiting her father at his Manayunk home as part of a court-approved custody arrangement in August of last year when he fatally beat her with a 35-pound dumbbell, then hanged himself. Jeffrey Mancuso had not been violent with Kayden but had been abusive to others. Bucks County Judge Jeffrey Trauger was aware of Mancuso’s violent or aggressive behavior toward Kayden’s mother, his own mother, and other adults when he granted Mancuso unsupervised weekend visits with his daughter in May 2018.

Under the Kayden’s Law, a court would have to impose “safety conditions” to protect a child, including supervised custody visits in a “therapeutic setting” in cases in which a parent has a history of abuse. The measures would broaden the definition of abuse to include threatening behavior, such as harassment and stalking. And they would recommend education and training programs about child abuse and domestic violence for judges and others involved in custody matters.

The bill further provides for award of custody, for factors to consider when awarding custody, for consideration of criminal conviction, for guardian ad litem for child, for counsel for child and for award of counsel fees, costs and expenses; in Administrative Office of Pennsylvania Courts, providing for child abuse and domestic violence education and training program for judges and court personnel; and, in depositions and witnesses, further providing for rights and services.

This is a proposed bill at this time and will likely have significant revisions. However, if some version of it is implemented there is the potential for the change in law with Kayden’s Bill.  For information as to the proposed bill, visit the Pennsylvania General Assembly website at: www.legis.state.pa.us

https://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2019&sessInd=0&billBody=S&billTyp=B&billNbr=0868&pn=1229

Gag Orders in Custody Cases: Is It Your Right to Speak to the Media?

In a child custody case, do the parents have the right to talk to the media? Is that right protected by the First and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution? These are the big questions that the Pennsylvania Supreme Court will be considering. The Supreme Court has agreed to hear a case of a mother and her attorneys who were subjected to a gag order for talking to the media about her child custody battle, in which she accused the father of sexual abuse of the child.

In this case, the mother’s attorney held a press conference in which he disclosed the identity of the mother and restated the child’s in-court testimony, which included allegations of sexual abuse by the father. Additional sectors of the media picked up on the story. Father then filed a motion for sanctions against the mother and her attorneys. As part of his motion, father requested that all documents relating to the case be removed from public access. While the Court denied the father’s motion for sanctions, the Court did prohibit the mother and her attorneys from speaking publicly about the case in any way that could cause the child to be identified. 

Mother asserted that her free speech rights have been violated by the gag order.  The trial court considered the following when issuing its decision as to the speech of the mother and her attorneys: 

(1) tended to identify child; 

(2) was harmful to child; 

(3) whether child’s right “to be free from undue scrutiny, ridicule, and scorn” outweighed the right of mother and her attorneys to engage in public discourse.

The trial court also noted that the child attends a school “where teachers, parents and students are likely to know each other and that the identification of a parent would naturally identify the child.”

The Superior Court noted that the trial court’s order is not concerned with the content of mother and her attorneys’ speech, but with the target of the speech (the child). The court seeks to protect the child’s identity and privacy. It is the identification of child that triggers the application of the gag order. The Superior Court also noted that the mother’s unsubstantiated allegation of sexual abuse by the father warrants confidentiality of the proceedings and that the child has suffered emotional trauma because of the strife between the parents. 

According to the court, the gag order does not prevent mother and her attorneys from speaking publicly about child abuse and parental alienation generally. The order limits mother and her attorneys from communicating anything that would tend to identify and harm child. Additionally, the order does not bar the media from any of the proceedings in the case, nor does it prohibit the media from reporting on the matter. 

What does this mean for you? 

Be careful of your use of media of any type when involved in a child custody matter. If you have questions regarding this very sensitive issue and the use of media, call Kinchloe Law at 215-301-9783 so that we can assist you in the assessment of your current situation and to discuss your options.

Does the Court Have to Reconsider the Custody Factors with Each New Hearing?

In a recent case, the Superior Court of Pennsylvania Ordered that the Court of Common Pleas of Cumberland County erred in its child custody order. The trial court incorporated by reference its consideration of some §5328(a) factors from a prior order. The Superior Court indicated that the incorporation by reference of an outdated analysis of factors was not appropriate. 

Here is a brief background of this very extensive case. A final custody order from 2016 awarded shared legal custody of child, primary physical custody to mother and partial physical custody to father on certain days and weekends. Mother filed for special relief requesting the court order the parties to participate in custody evaluation. Trial court deferred a decision on mother’s motion. In the meantime, father requested shared primary custody of child. In December 2017, trial court followed the GAL's recommendation and entered an interim order awarding father partial physical custody on an alternating two-week schedule. 

At a 2018 custody hearing, the trial court gave father partial physical custody every other weekend and granted mother's requests for preschool attendance and to designate a child counselor/play therapist, among other decisions. Both mother and father appealed that order. Mother argued that the trial court failed to consider all of the §5328(a) factors. Mother also argued that the trial court incorporated by reference a portion of a previous outdated analysis from an earlier order. The Superior Court agreed with mother that the trial court must analyze all of the §5328(a) factors any time that the trial court makes a change in a custody award. The Superior Court also agreed that incorporation by reference of a previous and outdated analysis of the factors was not sufficient and vacated the order.

As a result, the Superior Court vacated the trial court’s order and sent the matter back to the trial court for a complete analysis of the §5328(a) factors, followed by the entry of a new custody order. 

What does this mean for you? 

If the court has failed to evaluate all of the §5328(a) factors in your case or you have a modification hearing pending call Kinchloe Law at 215-301-9783 so that we can assist you in the assessment of your current situation and to discuss your options.

Parent Granted Relocation- Review of a Recent Relocation Case.

Mom Can Move

 In a recent order issued in the Court of Common Pleas of Monroe County in the case of Song v. Valderrama, Judge Stephen Higgins discussed the standards and factors that must be applied in a case where mother was looking to relocate with her 5-year-old child from Pennsylvania to Florida. In this case, the relocation was granted.   Both the relocation and the custody factors along with a review of the findings of each of the factors is provided below.

In a relocation case, the party wishing to relocate has the burden of proving that the relocation is in the best interest of the child.  In addition, “each party has the burden of establishing the integrity of that party’s motives in either seeking the relocation or seeking to prevent the relocation.” 

23 Pa.C.S.A. 5337(h) provides the 10 relocation factors that a court must consider in a relocation case:

1).The nature, quality, extent of involvement and duration of he child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.   The court weighed this factor slightly in favor of Mother.  The child has no siblings.  Mother has been the primary caregiver for the child since he was born. She proposed a schedule where Father could enjoy holidays and summer vacations, as well as unlimited time with him in Florida.  She also testified that she co-parents with Father very well.  Father raised concerns over Mother’s abuse of cocaine and that she would have less support in Florida.  According to the court, Father would not be in a position to enjoy primary physical custody of the child. 

2).The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.  This factor was found to be neutral. 

3). The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties. This factor was weighted in favor of Father.  The relocation would be difficult.  Mother testified that Father saw the child only once in a six week period but hat Father has alternating weekends with the child.  The relocation would cause a financial hardship for Father and he would not be able to maintain the current custody agreement.  

4).The child’s preference, taking into consideration the age and maturity of the child.  The court did not interview the child and thus found that this factor did not favor either party. 

5).Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.This factor did not favor either party because the court found that there was no evidence suggesting that either party has attempted to thwart the relationship of the child with either party. 

6).Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but no limited to, financial or emotional benefit for educational opportunity.  The factor was found in favor of mother in that it would generally enhance Mother’s financial opportunities and quality of life.  She testified to a financial benefit by obtaining a property management position in Orlando.  Her brother and his wife lived there and could assist in child care.  She also testified to other ties (a cousin and friend) who lived nearby including Father’s grandmother and step-father.  

7). Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.  This factor was found to be in favor of Mother. She presented a letter from the doctor that indicates that he has to stay indoors in the winter due to acute asthma attacks. In Florida, he would be allowed to play outdoors. Mother found a school that would be a good fit for him. Although she did not offer any additional information, the court found that the child’s general quality fo life would improve.

8).  The reasons and motivation of each party for seeking or opposing the relocation.The court believed that Mother’s reasons for seeking to relocate where genuine and that Father’s reasons for opposing the relocation were sincere.  

9).  The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party. Under this factor, the court considered Father’s concerns over Mother’s past abuse of cocaine.  She said she is no longer using though she has struggled with addiction. The court notes that Father did not seek to modify the custody for the child’s well-being and no was there evidence of present abuse by Mother or any risk of harm to the child. This factor was found in favor of Father. 

10).  Any other factor affecting the best interest of the child.  The court believes that both parents are good parents.  The decision notes that Mother has been financially providing for the child and that is Father has not been providing child support and is in contempt of his financial obligations. Mother also provided that the relocation would help with the child’s asthma and health issues.  The support system and family members who reside near the proposed relocation would benefit mom. After considering these factors, the court found that Mother met her burden and then turned to the custody factors. 

In addition to the relocation factors, the court also considered the 16 Custody Factors:

1).Which parent is more likely to encourage and permit frequent and continuing contact for the child with the other parent?In this case, the Court favored the Mother. The Mother presented evidence that Father only saw the child one time in six months. The Mother indicated that the child needed his Father. Court felt that the Mother would be more likely to encourage contact.  

2).  Was there present or past abuse or a continued risk of harm to the child? In this case, there was no evidence of abuse making this factor irrelevant. 

3).  Parental duties performed by each party on behalf of the child. In this case, the Mother had provided the majority of the child’s care since birth.

4).  Need for stability and continuity of child’s education, family life and community life. Again, this factor was favored to the Mother. The Father in this case had not contributed to the child’s support. 

5).  Availability of extended family. This factor was awarded to the Father in this case. Most of the extended family for both Mother and Father were in Pennsylvania. However, Mother did have family in Florida. 

6).  Child’s sibling relationships.In this case, there were no siblings, making this factor irrelevant. 

7).  Well-reasoned preference of child, based upon child’s maturity and judgment. In this case, the child was 5 years old and not interviewed by the Court, making this factor irrelevant. 

8).  Attempts of parents to turn child against each other, except in cases of domestic violence where reasonable safety measures are necessary.The Court was neutral in this case as it did not appear that either parent had attempted to turn the child on the other parent. 

9).  Which parent is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child adequate for child’s emotional needs?The Court again favored the Mother. The Father’s time with child was inconsistent; including a six month period of time that he only saw child one time. 

10).Which parent is more likely to attend to daily physical, emotional, developmental, educational and special needs?The Court believed that both parents would attend to the needs of the child in this case. Therefore the Court was neutral on this factor. 

11).  Proximity of residences of parties.The Court favored the Father in this factor as all of the extended family lived within Monroe County. The Mother was asking to move with the child to Florida. 

12).Availability to care for child or make child care arrangements. The Court was neutral on this factor as both parties have family close in Pennsylvania and Mother stated that she has family in Florida close to where she wanted to move to. 

13).Level of conflict and willingness of parties to cooperate with one another.The Court was neutral on this factor as it appeared that the parents had good communications.

14).History of drug or alcohol abuse.The Court was neutral on this factor. The Father suggested that the Mother had a previous drug habit, but she claimed that was no longer an issue. The Court noted that Father did not present any evidence to the contrary. Furthermore, the Father did not seek sole custody based on the Mother's alleged drug issues.

15).Mental and physical condition of part or other members of household.The Court was neutral on this factor.

16).Other relevant factors. The Mother was the primary care giver. Both parents co-parent very well. Both parents love and nurture child. 

The most important factor to consider is what is in the best interest of the child. In this situation, the Court held that the parents would continue with shared legal custody and shared physical custody, with the Mother being the primary custodial parent. The Father would have physical custody that worked with the child’s school calendar. The Mother had been the child’s primary parent since his birth. She was the parent who took him to his healthcare appointments. The Father had not been paying any child support, so the Mother had been solely providing for the child’s financial support. 

The Court further held that since the Mother wanted to make the move that she had to pay for travel arrangements for time for the Father to see the child for Christmas Break 2019 and Spring Break 2020. Beginning in summer vacation 2020, the parents would share transportation expenses equally. Furthermore, the Court ordered that the parents would have telephone access to the child that was reasonable. 

What does this mean for you?  

If you find yourself in the situation where a parent is considering a move, you will need assistance in presenting evidence to satisfy the factors as outlined by the Court. Call Kinchloe Law at 215-564-1580 so that we can assist you in the assessment of your current situation and to discuss your options.

How Remarriage or Cohabitation May Affect a Custody Case

New relationships can present a host of problems in custody cases.  They can also be the catalyst for modifications or new filings.  However, a loving, stable relationship between a parent, their new spouse or paramour, and the child can also be in the best interest of the child. 

When one parent remarries or is cohabitating with a new partner, the court may look at several aspects when determining the best interest of the children.  Among these may be:

1. The marrying parent’s relationship history.  Have they had a series of serious relationships/marriages that have ended quickly or badly?

2. What about the character of the spouse or paramour and their ability or desire to parent the child?

3. The bond between the parent’s new partner and the child.

4. The number of children coming into the relationship (step-children, half-siblings, etc.).

The court is ultimately tasked with determining what is in the best of interest of the child.  This means that a court should not automatically side in favor of a two-person household over a single-person household.   Testimony and evidence from the new partner to show a desire and ability to parent the child (or lack thereof) is important to any custody case.  Courts have even remanded cases where there was a lack of testimony from the spouse stating their willingness to parent the child as their own. See J.F.G. v. K.A.G., 278 (Pa. Super. 25, 419, A. 2d 13337 1980). 

Often the new partner’s presence may have an affect on the sixteen factors, such as the availability of extended family, siblings, ability to provide adequate childcare, and others.  To see a full list of the factors, click here.

What Can I Do If My Child's Mother/Father Talks About Me To My Child?

Dealing with Disparagement

Talking poorly about your child's other parent in front of them or to them can be harmful to them and detrimental to their relationship with that other parent.  It can also lead to parental alienation and the court does not take it lightly. If you are on the other side it can frustrating, depressing, and infuriating.  

What You Can Do:

1. Ask for a non-disparagement clause to be included in your custody order.  If you are litigating or plan to modify your custody order, you can ask for a non-disparagement cause to be included in your order.  While it should go without saying that the other parent should not talk poorly about the other parent to their child, you may need to have this spelled out explicitly in your order if this has been an issue in your case. It the other parent continues to badmouth you to your child, it will make it that much easier to prove contempt of this clause and/or assist with a modification of custody in the future.
2. Get Proof.
   1. Written Evidence.  Text messages and emails that can be authenticated (proven to be from the person at a time and date and with context), can be very helpful. However, you have to think about what is in the message.  Just because your child's mother says terrible things to you, does not necessarily means she says them to your son or in front of him.
   2. Video and Audio Evidence.  It is very important to know the state and federal rules about recording third parties and obtaining consent/notice.  If the person submits to it voluntarily, like leaving a voicemail which they know is being recorded or some forms of social media messages, it may indicate that they have implied consent. Know the rules, but these can be some of the strongest forms of evidence.
   3. Testimony from your child. If your child is old enough, a judge or master may interview your child to determine whether disparagement is occurring.  Testimony from children is often done outside of the presence of both parents, though in some situations counsel may be present.
   4. Testimony from a third party.  A third party may be able to testify about your child's parent disparaging you to them in front of your child.
3. File for Contempt.  Where there is language in a custody order that prevents parents from disparaging the other parent, the parent may be in contempt if they continue to do so. The parent being disparaged can file a petition of contempt against the other parent and ask for attorneys' fees and sanctions
4. Requesting Modification.  If the disparagement is so bad that it has been affecting the relationship of the child with the parent being disparaged, a modification of the custody order may be warranted before it leads to complete parental alienation. Of course, a modification can be done at any time for any number of reasons. You can speak to a lawyer about requesting a modification of custody or do it yourself.  
5. Attend Co-Parenting Classes/Therapy.  When parties split or where a custody battle has made things ugly between the parties, co-parenting counseling can be very helpful.  An objective third party can help mediate issues, assist the parties with how to speak with each other, and get the family back on track.  Co-parenting counseling can also be made part of a custody order, with a judge also ordering how long the parties are to attend and who is to pay the cost.  

Speak with an attorney licensed in your state about the facts specific to your case.  This blog is for information purposes only and is not legal advice.  There is also no intent to create any attorney-client relationship by way of this or any other post on this website. 

What happens to a custody case if the other party has been charged with a crime?

A trial court must consider each party’s (and their household’s) criminal history.  Criminal convictions are often the focus of this review. However, 23 PA C.S. Section 5330 provides that if a party has pending criminal charges, the court must consider whether that party poses a risk of physical, emotional, or psychological harm to the child.  There are certain crimes, often referred to as “enumerated offenses” because they are specifically enumerated in the statute, that the court will review to determine whether a party poses such a risk.  These offenses, listed fully in Section 5239, include homicide, sexual assault, endangering the welfare of a child, driving under the influence, and more. See the full list of enumerated offenses here.

If a party has been charged with an enumerated offense under Section 5329, the other party may seek a temporary custody order or a modification of an existing order.  This hearing is to be held “expeditiously.” The court must consider whether the charged party poses a risk of physical, emotional, or psychological harm to the child as stated above. The court must consider any proof produced by the parties about the existence of criminal charges or abuse.

When do child support payments end?

When do child support payments end?  Do I have to do anything once my child turns 18 to stop the payments?

Technically support orders do not terminate automatically and a person paying child support was required to file a petition to terminate a child support order once the child is emancipated.  Subdivision (e) of Rule 1910.19 was implemented to prevent overpayments and to give parties notice.  Now, within the six months before the child turns 18, the court will issue an emancipation inquiry and notice to the obligee and a copy to the obligor asking certain questions to see whether the order shall remain in effect after the child turns 18 or graduates from high school (whichever is later). If there is no response after 30 days, the domestic relations section can administratively modify or terminate an order.

If you are receiving child support, you should complete and return the inquiry especially if there is a reason that the child should continue to receive support beyond age 18 or graduating high school.  If you do not return the notice, the domestic relations section may modify or terminate the order without further proceedings.  If there are other children on the court order, there may be a conference.

Three reasons why child support may continue even after the child reaches 18:

1. The child has special needs.
2. There is an agreement between the parties that requires support beyond age 18 or after the child has graduated from high school.
3. There are arrears.

Arrears.  If the person paying child support owes arrears, the arrears continue to accrue through the date of the termination.  The domestic relations section may continue to have child support deducted in the amount of the original order to cover the arrears.  In this situation, the arrears will be paid off faster.

If you object to paying support for your child beyond age 18 or their graduation from high school, you may request a hearing.

If you have questions about child support, contact us for a free telephone consultation.  You may also consult Pennsylvania Rule 1910.19.

Which parent is responsible for the cost of transportation when they share custody?

A custody agreement will create the need for transportation.  At times, the transportation may become significant in terms of time and money.  While there are no set rules for determining who bears the burden of the cost of transportation, a court may find that the parent moving away and creating the need for travel costs may be responsible for costs.  The courts will consider the financial ability of each party to incur the costs. Please also be aware of that Pennsylvania courts have found that where one parent is responsible for transportation costs in order to exercise their partial custody, they may be entitled to a reduction in child support to cover the cost of transportation.

In addition to costs, parents also want to know whose responsibility it is to transport between the parents.  This designation is not always considered, but can cause unnecessary headaches if not defined clearly.  Even if the parties are amicable, it is a good idea to establish who transports where and when, especially if there is considerable distance between the parents.

Will the courts keep siblings together?

In determining which parent will get custody, will the courts give greater weight to keeping siblings together?  What about half-siblings?

The main focus of the court is to determine the best interest of the child.  Whether the best of interest of the child is to be with their siblings primarily is to be determined.  In all cases, the courts use the 16 factors to determine what is in the best interest of the child or children.  The courts understand that the relationship a child shares with their siblings is an important one that can play a large role in their development.  As such, one of the factors the courts consider is which party is likely to keep siblings together.  The courts will also consider the requests of the child, depending on their age and reasoning.  This is includes if the child is requesting to live apart from their siblings.  

In Philadelphia, the courts have looked at a compelling reason standard.  This means that the courts will usually look toward keeping the child with their siblings unless there is a compelling reason not to do so.  However, if there is a substantial custody arrangement that can still satisfy the goal of significant relationship between the children, the courts will allow the separation of the siblings. These principals can also be applied to half siblings.

Grandparents and Great-grandparents and Custody

A grandparent or great-grandparent must have legal standing (legal right) to file a legal action for custody.  

A grandparent or great-grandparent may file an action for partial physical custody or supervised physical custody in the following situations:

1. Where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;
2. Where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage; or
3. When the child has resided with the grandparent or great-grandparent for at least 12 consecutive months, excluding brief temporary absences of the child from the home, and is removed from the home by the parents an action must be filed within six months after the removal of the child from the home.

While PA laws provide standing for grandparents or great-grandparents, as explained above, a grandparent may also have other legal standing to file for custody.

When deciding whether the grandparents and great-grandparents shall have partial physical custody or supervised physical custody, courts will consider whether the award interferes with any parent child-relationship and whether the award is in the best interest of the child. 

If you would like more information on seeking custody for your grandchild, contact us today.

Who Is Permitted to Sue for Custody?

The only person allowed to sue for custody is someone that has “standing” under the law.  In order to sue for custody you must prove that you have legal standing to do so.  The following individuals may file for physical or legal custody under PA law:

1. A parent of the child.
2. A person who stands in loco parentis to the child.  A person who stands in loco parentis of child is one who has stood in the shoes of a parent and has assumed responsibilities of caring for the child.
3. A grandparent of the child who is not in loco parentis to the child:
   1. whose relationship with the child began either with the consent of a parent of the child or under a court order;
   2. who assumes or is willing to assume responsibility for the child; and
   3. when one of the following conditions is met:
      1. the child has been determined to be a dependent child under the regulations
      2. the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
      3. the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home and is removed from the home by parents, in which case the action must be filed within six months after removal of the child from the home.

If you are curious about your right to seek physical or legal custody, contact us today.  

Read More About Standing for Grandparents and Great-grandparents.

The 16+ Factors That Family Courts Take Into Consideration When Deciding Custody

Pennsylvania family courts take into consideration the following factors to determine the best interests of a child:

1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
2. The present and past abuse committed by a party or member of the party’s household, whether there is continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
3. The parental duties performed by each party on behalf of the child.
4. The need for stability and continuity in the child’s education, family life, and community life.
5. The availability of extended family.
6. The child’s sibling relationships.
7. The well-reasoned preference of the child, based on the child’s maturity and judgement.
8. The attempts of a parent to turn the child against the other parent, with some exception.
9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
10. Which party is more likely to attend to the daily physical, emotional, developmental, education and special needs of the child.
11. The proximity of the residences of the parties.
12. Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.  
14. The history of drug or alcohol abuse of a party or member of a party’s household.
15. The mental and physical condition of a party or member of a party’s household.
16. Any other relevant factor.

All of these factors are to be considered and can be given varying amounts of weight.  If you have a question about how these factors may affect your custody case, contact us today.

The Types of Custody in Pennsylvania

Custody falls into two categories in Pennsylvania: physical and legal.  Physical custody is the actual possession and control of a child.  Legal custody is the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.

Within those two categories of custody, a court may award the following type(s) of custody based on the best interests of the child:

1. Shared physical custody.  This is 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.
2. Primary physical custody. The right to assume physical custody of the child for the majority of the time.
3. Partial physical custody. The right to assume physical custody of the child for less than a majority of the time.
4. Sole physical custody. The right of one individual to exclusive physical custody of the child.
5. Supervised physical custody. Custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.
6. Shared legal custody. The right of more than one individual to legal custody of the child.
7. Sole legal custody. The right of one individual to exclusive legal custody of the child.

What about visitation?  Visitation is no longer a term recognized by the state of Pennsylvania.  When term “visitation” is used in reference to custody it may be construed to mean: partial physical custody, shared physical custody, or supervised physical custody.

For more information about physical or legal custody, contact us today.