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.
||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
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:
- Which parent is more likely to encourage and permit frequent and continuing contact
between the party 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 safeguards and supervision of the child;
- Parental duties performed by each party on behalf o the child;
- Need for stability and continuity in the child’s education, family life, and
- Availability of extended family;
- Child’s sibling relationships;
- Well-reasoned preference of the child, based in 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 residences of the parties;
- Each party’s availability to care for the child or ability to make appropriate
- 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
- 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 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
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.
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.
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.
||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,
||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.
||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