What Rights Do Grandparents Have Under The Pennsylvania Custody Act?

Most people know that grandparents have some custody rights under Pennsylvania law. What they may not know is what exactly those rights are. What happens when a grandchild is taken out of the grandparents' custody when the parents have already agreed that the child could live with them?  Can grandparents have primary physical custody when there is still one parent in the picture? The Pennsylvania Custody Act answers these questions and gives grandparents rights to intervene in a custody action in certain circumstances.

According to the Pennsylvania custody law, grandparents have standing (the right to legally intervene) in a custody action to ask for periods of partial physical custody or supervised physical custody of their grandchildren if certain criteria are met. These criteria include the death of a parent, separation/divorce proceedings between the parents or a situation where a child has already been living with a grandparent or great-grandparent for over a year. Even if the criteria are met, grandparents should consult a family law attorney when they are seeking custody so that they are aware of their rights and the steps they need to take.

Partial or Supervised Physical Custody

One situation where grandparents are allowed to intervene for partial custody or periods of supervised custody is when a parent of a child is deceased. Grandparents may also seek partial custody when the parents of the children are separated or divorced. If either parent has filed for divorce or if the parents have been separated for at least six months, grandparents have legal standing to seek custody.

Sometimes, grandparents already have had physical custody of a child for a period of time, and suddenly a parent decides to remove the child from their home. There are rights for grandparents in these situations too, as long as the child has been living with the grandparents for a period of at least one year. If that is the case, the grandparents must file an action for custody within six months of when the child was removed from their home.

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Teenagers and Custody Issues

Custody can be a tricky issue no matter what the child’s age. When you add a teenager into the mix, it can be even more difficult to navigate the correct procedures for custodial parents and non-custodial parents to follow. Teens often have strong opinions on which parent they prefer to live with, opinions that can change rather often or unexpectedly. The issue becomes even more clouded when a teen is close to age eighteen. Parents often wonder to what extent they should treat their teens like adults in making major decisions such as which parent to live with.

In my family law practice, I have encountered situations where a non-custodial parent wants to follow the wishes of a teenager and allow him or her to move into their home.  For example, the question may be, “Can my sixteen-year-old daughter just move in with me? Even though the Custody Order gives my ex primary physical custody, isn’t she old enough to decide where she wants to live?”

I always caution parents in this situation. Do not allow your teenager to just move in with you on a whim or because he or she is upset with the other parent. The existing Custody Order is an enforceable legal document and non-compliance could result in contempt proceedings being brought against you. Regardless of the fact that the teen could be only months away from the age of majority, a Custody Order is a directive from the Court, and both parents are obligated to comply with it.

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How Far is Too Far? A Must-Read for Custodial Parents Seeking to Move

As family law attorneys, we often encounter the issue of relocation in custody situations. I previously wrote about the top custody myths in Lancaster County and addressed a common myth that parents have in custody situations -- "I can move wherever I want and take my children with me." This assumption, as I point out and as Holly Filius expands on in her blog post about changes to the Pennsylvania Custody Act, can be hazardous for parents who do not understand or know about the notice requirements of the law. These requirements are discussed frequently in family law sites and blogs, but what many clients wonder is how far a move has to be in order to trigger the notice requirements required by law. Is it okay to move to the next neighborhood? The other side of town? What about 30 miles away?

The Custody Act defines relocation as any move that significantly impairs the non-custodial parent's ability to exercise custodial rights to the children. Any move that falls under this definition requires the custodial parent (the parent who has physical custody of the child or children the majority of the time) to follow the notice procedures of the Act. This begs the question, how far can a move be before it "significantly impairs" the other parent? Here in Lancaster County, a move is usually considered relocation if the custodial parent proposes to move with the children to a different school district. Changing districts could make it difficult for the other parent to complete the necessary custodial exchanges and take the children to any events or appointments they have while under their care. Although there are some Pennsylvania school districts that are geographically small, rural ones can be spaced far apart so that even moving to the "next district over" could create a significant distance to travel. 

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Holiday Custody Schedules Don't Have to Cause Holiday Stress

I once had a client call me on Thanksgiving Day because she had a custody dispute with her ex-husband about who was to pick up their child at 4 p.m. The police were called and actually intervened, their child was distraught and the entire holiday was ruined for everyone, extended families included.

Without fail, every year after the holiday break I receive calls from clients with concerns about problems that arose during a custody exchange or the late arrival of a parent. Folks, juggling holiday activities with children is difficult even for intact families. It only gets more difficult when parents are separated and have their own individual plans for celebrating. My advice for making sure that you and your kids get through the holidays without a lot of aggravation and stress about custody issues is to plan ahead. Know what the holiday schedule will be well in advance of the holidays. If that means hashing it out with your ex weeks or months in advance, then do it.  If you're having difficulty reaching an agreement about a schedule, transportation or exchange times, seek the input of an attorney to clarify what your rights and obligations may be.

Embracing the holiday and focusing on making this a joyous time for your children can help you to successfully make it through the holiday season . 
 
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.

Child Custody and Relocation in Pennsylvania

In a recent article about the top 10 custody myths in Lancaster County, Julie Miller touched upon one of the most popular myths - that a parent can relocate without the other parent's permission. In reality, the relocation procedure that was in place for many years in Pennsylvania required any individual who wanted to relocate to meet the legal standard quantified in the case of Gruber v. Gruber. In 2011, the Gruber requirements were superseded by a new statutory provision, 23 Pa. C.S.A. § 5337, which required that no relocation could occur unless every individual who has custody rights to a child consents to the proposed relocation or the court approves the proposed relocation. As a parent, you must take all the proper steps before you may relocate, or conversely, in order to stop a relocation if you disapprove of it.

What do I have to do to relocate?

If you are the moving parent, the statute requires you to give notice to every individual who has custody rights by certified mail, return receipt requested, within 60 days before the proposed moving date. If you do not reasonably know of the relocation in time to comply with the 60-day notice requirement and it is not possible to delay the date, you must provide notice to all parties no later than the tenth day after the date that you know about the relocation. The second scenario would apply in situations such as a short-notice job relocation or an emergency relocation with limited date flexibility.

Whether providing the 60 days' notice or a shorter period of time as allowed by the statute, you must provide the following information to any individual who has custody rights to the child:

1. The address of your intended new residence, including the mailing address if it is different than the physical address;

2. The names and ages of the individuals who will be living with you;

3. The home telephone number of your new residence;

4. The name of the new school district and specific school your child will be attending;

5. The date of the proposed relocation;

6. The reasons for the proposed relocation; and

7. A revised custody schedule.

Counter-affidavit regarding relocation

In addition to the above information, a counter-affidavit must be provided with the notice allowing the other party to indicate their position with regard to your relocation. The counter-affidavit must include a warning that if the other party does not file an objection with the court objecting to the relocation within 30 days of receiving notice of the proposed relocation, the non-relocating party cannot object to the relocation.

If no objection is made to a relocation, you must file an affidavit stating that you have provided notice to every individual entitled to notice of the relocation, that the time to file an objection to the proposed relocation has passed, and that no one entitled to receive notice of the relocation has filed an objection to the relocation. You must also file proof that proper notice of the relocation was given and then file a petition to confirm the relocation and modify any existing custody order, along with a proposed order containing the information delineated by the relocation statute. The court then has the ability to modify the order based on the non-relocating party's lack of objection to the relocation.
 

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Top 10 Custody Myths in Lancaster County

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.

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Can I Claim my Child as a Dependent?

One of the most frequent questions I get during tax season is: who gets to claim the child/children on their taxes when parents are separated, divorced, or have never been married? It also happens to be an area where I see many people make mistakes that cost them on their tax return and in their bank account. The deduction for a child for the tax year 2011 was $3,700, and the IRS has a child tax credit worth up to $1,000 per child for qualifying taxpayers. These two deductions or credits, in addition to other child related expenses or deductions, can make a significant difference in your tax liability.  Therefore, when parents are separated or unmarried it is important to understand your rights when it comes to claiming a child as a dependent.

Generally speaking, the parent who is considered the custodial parent or primary custodian is entitled to claim the child as a dependent for tax purposes. The IRS considers the custodial parent to be the parent who has the greater amount of time with the child during the year. In many cases, it’s clear which parent has the majority of the time. However, many parents have a schedule that intends for parents to share time equally with the child. In these cases, there are specific IRS rules to determine how periods of time with each parent are calculated and who is the custodial parent. In the absence of an agreement to do otherwise, these rules are used to determine who is able to claim the child as a dependent on their tax return.

Often, parents will discuss this issue and reach an agreement on who will claim a child as a dependent. When there are multiple children to the same parents, they may "split" the children, and they each claim one or more. Other parents agree to alternate years so that every other year, each parent gets to take the deduction. Either of these situations are fine, provided that you follow the rules the IRS has set out for a non-custodial parent claiming a child. Those rules provide:

  1. The parents must be divorced or legally separated under a decree of divorce or separate maintenance; separated under a written separation agreement, or lived apart at all times during the last 6 months of the year, whether or not they are or were married;
  2. The child received over half of his or her support for the year from the parents;
  3. The child is in the custody of one or both parents for more than half of the year; and
  4. The custodial parent signs a written declaration that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return.
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Do-it-Yourself Legal

Do-it-yourself projects, like remodeling your bathroom or building a deck, can save money and provide a sense of accomplishment by doing something on your own that you would ordinarily hire another person to do. With any do-it-yourself project there are risks involved, such as increased cost if you have to hire a professional in the end or if your inexperience causes other damage. 

The internet has allowed individuals to perform some legal functions on their own. Many government websites, for example, offer forms with detailed instructions that can be very helpful for people seeking to help themselves with certain issues. There are also websites that offer forms and additional services for a fee. These websites are required to stop short of offering legal advice because they are not law firms, which is made very clear on LegalZoom's website: "LegalZoom is not a law firm, and the employees of LegalZoom are not acting as your attorney….if you need legal advice for your specific problem, or if your specific problem is too complex to be addressed by our tools, you should consult a licensed attorney in your area." Because these sites are not law firms, they are also not subject to the rules that govern lawyers. This is why they are able to do things lawyers can't do, such as use celebrity endorsements. 

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Changes to Pennsylvania Custody Law

Some significant changes and additions to the custody statute in Pennsylvania went into effect recently. The majority of the changes or additions to the custody statute are an attempt to take the factors, standards and practices which have been carved out over the years through Court cases and appellate decisions and consolidate them within the statute. While these may not make a significant substantive change to the custody law, they still have the potential to affect many custody cases filed after the law goes into effect this week. 

One of the most significant additions to the statute is the inclusion of sixteen specific factors which, if applicable, the Court must consider. The overall goal is still to determine what is in the best interest of the child but these specific factors that are now set out in the statute provide some guidance and uniformity for judges, attorneys and parents to specifically consider in evaluating cases and concerns in custody matters. A few examples of these factors are:

  • Which party will encourage and permit continuing contact with the other party
  • Parental duties performed by the parties on behalf of the child
  • Sibling relationships
  • The well-reasoned preference of the child based on the child's age and maturity
  • Proximity of residences of the parties
  • Attempt of one party to turn the child against the other party
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Military Deployments and their Effect on Child Custody

The news each day seems to be filled with headlines about the wars in Iraq and Afghanistan. With the withdrawal of U.S. combat forces in Iraq and the return of many of them to the United States, a recent Amendment to the Pennsylvania Divorce Code is likely to be put into use more frequently. 

At the end of 2008, the Divorce Code was amended to prevent the Court from changing a custody order where a parent is a servicemember and has been deployed, except on a temporary basis. The Court may make a temporary change to the order if it would serve the best interests of the child to do so while the servicemember is deployed. This part of the new law is not that different from all other custody procedures, which look to the best interests of the child as a guide. 

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Child Custody and Relocation

One of the most hotly-contested issues facing Judges in custody cases is whether to allow a custodial parent to relocate to another state with the children. This has become quite common, particularly as people have made and developed relationships through the internet. Relocation cases are difficult for all parties involved: the non-custodial parent is shocked and horrified at the prospect of losing regular contact with his or her children and the prospect of not being able to move to a perceived better opportunity is equally difficult for the custodial parent. Often, these cases are not able to be resolved through the custody conciliation process and they end up at a hearing before a Judge.

My practice is to remind clients involved in all custody litigation, including relocation cases, that the Judge deciding the case is a stranger making decisions about what is in the best interest of your family. He or she has no prior knowledge of your family, you and your ex-partner's history, your children's behaviors, likes and dislikes. Depending on your case, it can be helpful or can add to your burden.

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