McMahon, McMahon & Lentz
Child Custody Laws
By: Erin C. Lentz, Esquire
On November 24, 2010, the Pennsylvania legislature signed into law House Bill 1639,
which became effective on January 24, 2011. This legislation deleted the former Child
Custody laws that were contained within Title 23 of the Pennsylvania Consolidated
Statutes Sections 5301 through 5315, and replaced it with Sections 5321 through 5340.
The new Child Custody laws take into account prior decisions of the Courts, and offer
further clarity and guidance in several important respects.
Legal Definitions of Custody
The legal definitions have expanded and there is no "joint custody" or
"visitation." If an Order refers to "joint custody" or "visitation"
then it will be considered as either partial physical custody, shared physical custody,
or supervised physical custody.
The law now defines what is considered "physical custody," "partial
physical custody," and "primary physical custody." Physical custody
is actual physical possession and control of a child, which can be granted as "primary"
(majority of the time) "partial" (less than a majority of the time), "shared"
(each party has significant periods of time), or "supervised" (custodial
time that is monitored). There is no presumption that either parent shall be awarded
custody. However, parents are entitled to a presumption when a third party is seeking
custody.
Grandparents and great-grandparents
Grandparents have a time limitation placed on when they may file for custody when
a child resided with them for a period of twelve consecutive months. In that case,
grand-parents must file within six months after the removal of the child from their
home.
Planning for Custody Decisions
One of the most significant changes is that parties who reside in the same household
can file for custody, even though the order will not be effective until there are
separate households. Parties may be required to submit a "Parenting Plan"
to aid in resolving custody disputes. A Parenting Plan form is contained within the
new laws, which cannot be used as evidence, if the matter proceeds to a trial.
Statutory Factors
Courts are required to consider sixteen factors when determining what is in the best
interests of the child, which include:
- Which parent is more likely to encourage and permit frequent and continuing contact
between the child and another party.
- Present and past abuse committed by a party or member of the party's household,
whether there is a 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.
- Parental duties performed by each party on behalf of the child.
- Need for stability and continuity in the child's education, family life and community
life.
- Availability of extended family.
- Child's sibling relationships.
- Well-reasoned preference of the child, based on the child's maturity and judgment.
- Attempts of a parent to turn the child against the other parent, except in cases
of domestic violence where reasonable safety measures are necessary to protect the
child from harm.
- Which party is more likely to maintain a loving, stable, consistent, and nurturing
relationship with the child adequate for the child's emotional needs.
- Which party is more likely to attend to the daily physical, emotional, developmental,
educational, and special needs of the child.
- Proximity of the residence of the parties.
- Each party's availability to care for the child or ability to make appropriate
childcare arrangements.
- Level of conflict between the parties and the willingness and ability of the
parties to cooperate with one another. A party's effort to protect a child from abuse
by another party is not evidence or unwillingness or inability to cooperate with
that party.
- History of drug or alcohol abuse of a party or member of a party's household.
Mental and physical condition of a party or member of a party's household.
- Any other relevant factor.
Courts are also now required to state their reasons on the record for their decisions.
Parties or persons residing with parties that have a criminal conviction will be
evaluated by the Court to determine if they pose a threat to a child, and whether
counseling is necessary.
Guardians may be appointed to represent the best interests of a child, and counsel
can also be appointed to represent the legal interests of a child, and counsel can
also be appointed to represent the legal interests of a child. Finally, should a
party wish to relocate to an area which will significantly impair the ability of
a non-relocating party to exercise custodial rights, specific procedures must be
followed, including written notice requirements.
Montgomery County Women's Journal 33 April/May 2011
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