The prospect of a custody dispute over your children is daunting enough without the thought of legal terminology, procedures, paperwork, and lawyers. If you are just beginning a custody dispute, not knowing what to expect can be the biggest cause of anxiety.
Below, you’ll find a brief overview of the process in Pennsylvania. Although each case is factually different and only you and your attorney will be able to determine which approach is best, there are some required steps and analyses that will be the same in most cases.
- Filing a Complaint/Service of Complaint
The process of obtaining a custody order begins with the filing of a complaint. This is the legal document that tells the court and the opposing party what you want and why. Many individuals file the custody complaint themselves; however, if you prefer to have an experienced family law attorney draft and/or review the complaint prior to filing, Thompson Law Offices is happy to assist. Filing fees often amount to more than $200, making filing the biggest initial cost (assuming you know where the other party resides).
If you have been served with a custody complaint, you are not obligated to respond in writing. Rather, merely showing up at the conciliation conference (see below) will suffice as a response. This is not always advisable, however, and you should discuss your legal options with an attorney. You will be given a date and time to appear in court. Missing a court date can result in an adverse decision against you, so it is imperative that you make all court dates.
- Conciliation Conference
After the complaint has been filed and served, the court will schedule a conference with the two parties. The purpose of this conference is to attempt to facilitate an agreement. Many counties conduct this much less formally than a hearing, as it is held before a custody master, rather than a judge. If the parties can come to an agreement, the master will send the recommended order containing the agreed-upon terms to the judge for final approval. Once the judge has approved and signed the custody order, it takes effect and the provisions must be followed, whether either party is satisfied with them later or not.
- The Custody Order
The custody order will outline the specific parameters of custody, both physical and legal. Legal custody is the right to make major decisions in your child’s life and is protected by the U.S. Constitution. Physical custody will generally be either primary or shared (often referred to as 50-50). A number of factors will determine physical custody, such as the living arrangements of each parent, the past history of the parties, the age of the child, and well-reasoned preference of the child (if the child is older).
The custody order will also dictate holiday schedules, how to schedule vacations, and how the parties are to conduct themselves in the presence of the child.
- Hearings and Trials
If no agreement is reached, the matter will be referred to the judge supervising the case. In this case, a hearing or trial will take place, in which both parties will call witnesses and take testimony. The custody trial is typically frustrating, long, and therefore expensive. At the end of the trial, the judge will take the matter under advisement and issue a custody order. Often, but not always, the judge’s final order will look substantially similar to the agreement proposed by the master. This is because the facts generally do not change and the master and the judge are considering the same facts and circumstances using the same law. While this does not mean a custody trial is never necessary or advised, it is something to consider while at the conciliation conference.
- Modification of a Custody Order
Once a custody order is entered, it is subject to modification. A modification petition follows the same procedural steps as the complaint. This means that you will first go before the master (most counties, if they have more than one master, will try to keep the same master on the case). Then, if no agreement is made, the party seeking modification may seek a custody trial.
While there is no official requirement to petition the court for modification of an existing custody order in Pennsylvania, for practical purposes, these are usually filed after circumstances have changed somewhat since the previous custody order. If there has been no change, then the master is considering the same factors as the judge, and will generally defer to the judge’s existing order.
- Contempt of a Custody Order
When an individual fails to follow the requirements of a custody order, that person may be in contempt of the order. Punishments for contempt may range from a simple warning, to payment of the non-offending party’s legal fees relating to the contempt petition, to reduced custody, to jail time.
Generally speaking, contempt petitions should only be filed for serious violations of the custody order. Arriving a few minutes late, even if habitual, probably does not rise to the level of serious contempt and may have the adverse impact of making the filing party appear petty and frivolous.
- Emergency Petitions
Sometimes the actions of the other party can place the child in immediate danger. In those circumstances, the court can hear the case rapidly, usually within a few days, in order to prevent that danger. Physical danger is generally what the courts mean by “imminent danger.”