The custody of minor children frequently is a major, if not the paramount and most contentious, legal issue in family law litigation. The custody, welfare and best interest of minor children is a primary concern not only of parents, but the Commonwealth of Pennsylvania as well. On November 23, 2010, after more than two decades, the Commonwealth of Pennsylvania overhauled its custody statute and the factors that are regarded as relevant in determining the best interest of the child and who is to be awarded child custody.
At Charles Law Offices, we are all about family. We recognize that child custody and related family law issues often are emotionally charged, exact a heavy psychological toll upon litigants and their families, and can be a time of great sadness, anxiety, and distress. Resolving legal issues involving the custody of children at times may seem overwhelming and intimidating. But it doesn’t have to be that way. The lawyers at Charles Law Offices are here to help you through this difficult time.
For nearly 40 years, Attorneys Fredrick E. Charles and Dennis G. Charles of Charles Law Offices have successfully represented clients in child custody and related family law matters, helped them to negotiate and resolve difficult legal issues, and turned contentious situations into amicable and optimum outcomes. At Charles Law Offices, we will stand by you throughout the child custody litigation process, keep you informed of relevant legal issues, and help you make the decisions that are right, and most beneficial, for you and your family. And on those occasions when an amicable resolution of child custody issues cannot be reached, it helps to have on your side attorneys each with nearly 40 years of legal experience, preeminent and distinguished legal reputations, and an impressive track record of success in child custody litigation.
Child custody litigation involves questions concerning many legal and factual issues. The following are some questions that litigants in a child custody case typically ask:
“Physical custody” is the actual physical 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.
“Child” is defined as an unemancipated individual under 18 years of age. 23 Pa.C.S. §5322.
The court may award any of the following types of custody if it is in the best interest of the child:
Pursuant to 23 Pa.C.S. §5324, only those individuals who have “standing” are permitted to file an action in the Commonwealth of Pennsylvania for any form of physical custody or legal custody of a child. Individuals with standing to pursue physical custody or legal custody of a child in the Commonwealth of Pennsylvania include:
(i) whose relationship with the child began either with the consent of a parent or the child or under a court order;
(ii) who assumes or is willing to assume responsibility for the child; and (iii) when one of the following conditions is met:
(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
(C) 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 the parents, in which case the action must be filed within six months after the removal of the child from the home.
In addition to the factors set forth above, grandparents and great-grandparents 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 for partial physical custody or supervised physical custody of the child;
(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, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, 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. 23 Pa.C.S. §5325.
The court considers the following factors in determining whether to order physical custody or supervised physical custody to a grandparent or great-grandparent:
(i) the amount of personal contact between the child and the party prior to the filing of the action;
(ii) whether the award interferes with any parent-child relationship; and
(iii) whether the award is in the best interest of the child. 23 Pa.C.S. §5328(c)
In ordering partial physical custody or supervised physical custody to a parent’s parent or grandparent who has standing, the court must consider whether the award interferes with any parent-child relationship and is in the best interest of the child. 23 Pa.C.S. §5328(c)
As between parents, there is no presumption that custody should be awarded to a particular parent. 23 Pa.C.S. §5327(a). However, as between a parent and a third-party, there is a presumption that custody shall be awarded to the parent, but this presumption may be rebutted by clear and convincing evidence. 23 Pa.C.S. §5327(b).
In ordering any form of custody, the court must determine the best interest of the child by considering all factors. The court gives weighted consideration to those factors which affect the safety of the child, including the following:
In making a child custody determination, the court is prohibited from granting any preference based upon gender. 23 Pa.C.S. §5328 (c).
Where a party seeks any form of custody, the court must consider whether that party or member of that party’s household has been convicted of, or has pleaded guilty or no contest to, any of the criminal offenses enumerated in 23 Pa.C.S. §5329, or to a substantially equivalent criminal offense in another jurisdiction.
The court, when considering a party’s conviction for any of the offenses enumerated in 23 Pa.C.S. §5329 and before making any order of custody to that parent, must provide for an initial evaluation to determine whether that party poses a threat of harm to the child, and whether counseling is necessary for that party or household member. 23 Pa.C.S. §5329(c).
If the court deems counseling to be necessary, it must appoint a qualified professional specializing in treatment relating to the particular offense to provide counseling to the offending individual. Counseling may include a program of treatment or individual therapy designed to rehabilitate the offending individual which addresses, but is not limited to, issues regarding physical and sexual abuse, the psychology of the offender and the effects of the offense on the victim. 23 Pa.C.S. §5329(d).
The court may require the parties to a contested custody case to submit parenting plans for the care and custody of the child to assist the court in resolving the custody dispute. These parenting plans are not admissible as evidence by another party. The contents of the parenting plan shall include the following:
The court may direct the parties to attend informational programs concerning parental duties (23 Pa.C.S. §5332) or counseling sessions (23 Pa.C.S. §5333). In situations involving abuse, the court may order individual counseling for the abuser but may not order the parties to attend joint counseling. 23 Pa.C.S. §5333(b).
A party granted sole or shared legal custody shall be provided access to: (1) the medical, dental, religious and school records of the child; (2) the address of the child and any other party; and (3) any other information that the court deems necessary or proper. 23 Pa.C.S. §5336.
The lawyers at Charles Law Offices are here to help you with your child custody case. So, if you, or a family member, have questions concerning child custody or other family law matters, give Charles Law Offices a call at 610-437-7064, or fill out the screen questionnaire. Our staff of highly experienced, trained, and knowledgeable trial attorneys is here 24/7 to guide you through this troubled time, and help you with all of your child custody and family law questions and issues. Don’t settle for anything less!
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer. For specific technical or legal advice on the information provided and related topics, please contact the attorneys at Charles Law Offices.
The Charles Brothers’ devotion to the law is derived from a family history in the legal system and of service to others. Their father, Charles “Chink” Charles (depicted in the lower left-hand corner of the photograph) held a 35 year career in law enforcement, and was selected to serve as the personal bodyguard for former United States Presidents John F. Kennedy, Richard M. Nixon and Lyndon B. Johnson during their campaign visits to Allentown.