When it comes to child custody, maintaining an accurate understanding of the law can be difficult, as it often varies among the counties in Pennsylvania. Here are the top 10 custody myths I have encountered in my practice in Lancaster County:
1. My kids will get to choose which parent they want to live with when they are 12 years old.
I have had countless clients tell me that they assume their children can decide where they want to live when they are 12 years old. This is not an accurate statement of the law but seems to be a common misconception among the general public. The reality is that as children mature and reach their teenage years, their wishes are more likely to be considered by the court, as the law requires courts to consider "the well-reasoned preference of the child, based on the child's maturity and judgment." However, courts must consider all relevant factors, most importantly what is in the best interest of the child. Simply because a child expresses a desire to live with one parent does not mean that the court will ultimately conclude that the child's best interest will be served by living with that parent. Other factors that the court must consider include which party is more likely to encourage frequent contact with the other parent, the need for continuity and stability, and whether there are other siblings, among others. There is simply no rule that a child, on his or her 12th birthday, gets to make the decision about which parent to live with.
2. I can move wherever I want and take my children with me.
The Pennsylvania Custody Statute was amended last year to include very specific notice requirements in the event a custodial parent seeks to relocate with the children. Any parent proposing to move to a location "which significantly impairs the ability of a non-relocating party to exercise custodial rights" must provide advance written notice of the proposed relocation to the non-custodial parent. In the event the non-custodial parent objects, the court must hold a Gruber hearing in which the court must consider the following three factors:
- What is the potential advantage of the move and the likelihood the move will substantially improve the life of the custodial parent and the children?
- Is the purpose of the move to interfere with the relationship between the non-custodial parent and the child?
- Is there a realistic alternative custody schedule so the non-custodial parent can continue a relationship with the children?
It is important for parents to understand their legal obligations regarding relocation because if they move without providing the required notice, they may face litigation and other complications which can be difficult on children.
3. The Court never awards fathers primary physical custody of their children.
Although there was a period of time where our Courts were perceived to routinely grant mothers primary physical custody, there has been a trend to allow more shared custody arrangements between parents. This is especially true when the parents live in relative close proximity to each other, reside in the same school district, and are able to co-parent and communicate. There are also cases in which fathers have been granted primary physical custody of their children. Therefore, the assumption that mothers always have primary physical custody of their children is not accurate. Custody cases are determined based on the best interests of the children, and require the Court to consider work schedules, educational issues and whether one parent has acted as the primary caretaker. Each case is unique and there's no hard and fast rule about mothers being awarded primary physical custody.
4. I do not have to tell my ex who I am living with.
Actually, you do. There is a statutory provision that requires a Court to determine whether a party or a household member poses a threat of harm to a child in an event of a criminal conviction (23 Pa.C.S.A. §5329). Therefore, all members of a household must be disclosed, and in order to be granted custody by the court, the parents must provide an affidavit regarding certain criminal convictions. If a parent or a household member has been convicted of a §5329 offense, there will be a hearing to determine whether a parent/household member poses a risk of harm before the custody schedule can be determined.
5. My ex can't leave the state with my kids.
If your ex has custody of the children during a specific custodial period, he or she can take the children to an out-of-state location for a personal trip or vacation. This can include to visit out-of-state family members, or a trip to the beach or national park. How and where a parent chooses to exercise his or her custodial time is not within the control of the other parent. However, I always advise clients to make sure that there is a way for the other parent to stay in contact with the children. With all the communication devices that are available (and often in the possession of children and teens), it is easy to maintain contact during out-of-state trips. Absent a specific Order limiting a parent's ability to travel out-of-state with the kids, your ex can do so. Read more about Child Custody and Relocation.
6. My ex and I don't have to communicate; we just talk to our kids about it.
Using your children as a messengers in a divorce or divided custody situation is not only harmful to them, it is forbidden by the courts. These situations do not work and only serve to put your children in the middle of a situation that they did not create. Relationships can be damaged when parents talk to children about the custodial schedule, support issues, divorce issues and changes that may need to be made to the schedule or support order. These are discussions that kids do not need to worry about or be involved in. It is essential that both parents communicate directly with each other, whether it be through email, via phone or in the presence of a therapist. Even if you can't stand your ex, you have to be able to communicate about issues affecting your children.
7. The police will enforce my custody order if it is not being followed.
This rarely happens. The reality is that law enforcement agencies have many pressing situations and sometimes dangerous work to do. The last thing law enforcement has time to deal with on a holiday is a call about why the children are 20 minutes late arriving to the parent's home on Christmas Eve. Many police departments take the position that it is a civil matter and should be taken up through a Petition for Contempt of a Custody Order. With that said, there are instances where a law enforcement agency does get involved, particularly if there is a Court Order directing that they enforce the Custody Order. When this occurs, it can be especially difficult for children and have lasting detrimental effects, as they begin to associate police involvement with custody interactions between their parents.
8. My ex is out of the kids' lives, so his/her parents have no right to see them, either.
The Pennsylvania Custody Statute includes specific provisions to allow grandparents to seek periods of custody with a child, and in some cases, to seek primary physical custody of a child.
9. My ex is not paying child support, so he does not get to see the kids.
Custody issues and support issues are not related. They are handled in distinct and separate procedures of the Lancaster County Court of Common Pleas. Therefore, when a party fails to pay support, it has no legal bearing on whether or not he or she can exercise custody of the children.
10. I can sign off my rights for custody and never have to pay child support.
Just because you do not see your children does not mean that you relieved of your child support obligation. In fact, the Pennsylvania Support Guidelines are premised on the fact that the non-custodial parent spends at least 30% of their time with the child and therefore makes expenditures during that time for the child's benefit. If you do not exercise any periods of custody with your child, you put yourself at risk of having the court direct a deviation of your child support amount and actually increase the total amount of your child support.
For further reading on Pennsylvania child custody law, visit:
Julie Miller is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Dickinson School of Law and practices in a variety of areas including Family Law.