McMahon, McMahon & Lentz - Family Law Focus

You need to know your rights and responsibilities when it comes to family law matters. There are a wide range of issues that you should be aware of when it comes to Marriage/Divorce, Custody, Domestic Violence and Support.

Marriage/Divorce

	Are you living with someone but do not intend on marrying? If so, then you should consider a Cohabitation Agreement.
	Are you considering marriage but want to protect your assets? If so, then you should consider a Pre-Nuptial Agreement. Are you considering a legal separation, annulment of your marriage or divorce? If so, then you should consult with Erin C. Lentz, Esquire to understand the legal ramifications of these actions, and your ability to achieve such a legal status.
	Are you considering equitable distribution of your marital estate? There are three steps for equitable distribution: (1) determining what is marital property (2) valuing the property (3) distributing the property based on the statutory factors

Custody (updated to reflect new PA Child Custody Laws of January 24, 2011) What are the types of Custody?

You need to know the difference between legal custody and physical custody.

Legal Custody is defined as the right to make major decisions on behalf of the child, including, but not limited to, medical, religious, and educational decisions.

Physical Custody is defined as the actual physical possession and control of a child.

In addition, there are various forms of legal and physical custody that can be awarded.

Types of Legal Custody:
	Shared Legal Custody
	Sole Legal Custody
Types of Physical Custody:
	Primary Physical Custody
	Partial Physical Custody
	Shared Physical Custody
	Supervised Physical Custody
	Sole Legal Custody

Pennsylvania does not recognize “visitation” or “joint custody.” If an Order refers to “Visitation” then it will be considered as either partial physical, shared physical or supervised physical custody.

What does the Court consider in awarding Custody?

Courts award custody based on what is in the best interests of the child, and must consider sixteen factors:

1. Which parent is more likely to encourage and permit frequent and continuing contact between the party and another party;
   
   
2. 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 safeguards and supervision of the child;
   
   
3. Parental duties performed by each party on behalf o the child;
   
   
4. Need for stability and continuity in the child’s education, family life, and community life;
   
   
5. Availability of extended family;
   
   
6. Child’s sibling relationships;
   
   
7. Well-reasoned preference of the child, based in the child’s maturity and judgment;
   
   
8. 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;
   
   
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, educational, and special needs of the child;
    
    
11. 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. 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 of unwillingness or inability to cooperate with that party;
    
    
14. History of drug or alcohol abuse of a party or member of a party’s household;
    
    
15. Mental and physical condition of a party or member of a party’s household;
    
    
16. Any other relevant factors.

Courts will NOT consider the gender of a parent in making a custody determination.

However, courts will presume that a parent should be awarded custody over a third party such as an agency, grandparent or great grandparent.

Who can file for any form of Custody?

	Parent of a child
	Person who stands “in loco parentis” to the child; and
	Grandparent who is not in loco parentis to the child whose relationship with the child began by either consent of a parent or under a court order, who assumes or is willing to assume responsibility for the child, and when one of the following conditions are met
	Child has been determined to be Dependent; Child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or Child for a period of 12 consecutive months resided with the grandparent, excluding brief temporary absences from the home, and is removed from the home by the parents, in which case the grandparent must file within 6 months after the child is removed from the home

Grandparent or Great-Grandparents can also file for partial physical custody and supervised physical custody in certain situations.

Planning for Custody Decisions

ADVANCE FILING
Parties who still reside together but intend on moving to separate households can now file for Custody. The Order will not become effective until the parties maintain separate households. In addition, the Court can enter Interim Custody Orders if there is a need for an expedited or emergency decision regarding Custody.

RELOCATION
If a party desires to relocate to an area with a child that will significantly impair the non-relocating party’s ability to exercise custodial rights, then Notice must be provided no later than 60 days before the proposed move or within 10 days after the party knows of the proposed move. The non-relocating parent must file a Counter-Affidavit within 30 days of receipt of the Notice, if he or she objects to the proposed move.

PARENTING PLANS
Courts may require parties to submit a “Parenting Plans” to aid in resolving custody disputes. The Parenting Plans must include a schedule for personal care and control of the child, including parenting time, holidays, and vacations, education and religious involvement of the child, health care of the child, child-care arrangements, transportation arrangements, and a procedure by which proposed changes, disputes and alleged breaches may be resolved.

**We have a sample Parenting Plan that can be made available to you upon request.

Support

	Spousal Support is defined as periodic payments that are made by one spouse with the higher income to the spouse with the lower income after separation but before divorce; can only receive spousal support OR APL. There are entitlement defenses available to this form of support. Alimony is defined as periodic payments made after entry of the divorce decree. There is no bright line test for determining the amount of alimony to be awarded. It depends on local practice. There are three basic types of alimony: Permanent, Rehabilitative, or Reimbursement. All types are modifiable, and will terminate upon death, remarriage, or cohabitation.
	Alimony is defined as periodic payments made after entry of the divorce decree. There is no bright line test for determining the amount of alimony to be awarded. It depends on local practice. There are three basic types of alimony: Permanent, Rehabilitative, or Reimbursement. All types are modifiable, and will terminate upon death, remarriage, or cohabitation.
	Alimony Pendente Lite (APL) is defined as periodic payments made from the time of filing the divorce complaint until entry of the divorce decree; can only receive spousal support OR APL. There are NO entitlement defenses to this form of support.
	Child Support is calculated by guidelines based on the income of the parents. There are three ways to avoid paying child support: if you are not the parent of the child, if the child is emancipated, or if the child is estranged. Child support obligations are not income to the recipient and not deductible by the obligor but the obligor can claim child as a dependent on their income tax return. A child support obligation can be modified if a party can demonstrate a material and substantial change in circumstances, and in some cases permanent.

Domestic Violence

	Who is protected? Spouses, ex-spouses, parents, children, individuals who live as spouses, persons related by consanguinity or affinity, current or former sexual and/or intimate partners.
	What Acts are prohibited? Any abuse, which is defined as attempting to cause or intentionally, knowingly, or recklessly causing bodily injury, rape, involuntary sexual intercourse, sexual assault, statutory sexual assault, indecent assault, incest, assault, and false imprisonment.
	What Remedies are Available? Directing defendant to refrain from abuse, evicting defendant from home, awarding temporary custody/support, order defendant to surrender weapons used in abuse, order defendant to pay damages, order to defendant to stay away from plaintiff.
	How long will a PFA Order be in effect? Pennsylvania PFA Orders can last up to 36 months and may be renewed by the Court.
	What happens if there is a violation of a PFA Order? A violation of a court order is indirect criminal contempt, which is punishable up to 6 months in jail.

The information contained herein should not be used as a substitute for personal legal advice. You should contact the Law Offices of McMahon, McMahon & Lentz to schedule a Consultation with an attorney who will speak to you regarding your specific situation.