An Introduction to Pennsylvania Child Custody

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.

  1. 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.

 

 

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.”

Continuing Disability Reviews

Once you received your Social Security Disability benefits, you thought it was over.  You waited a long time to get before the judge, you presented Social Security with the right evidence, provided great testimony, and shortly after, you received your benefits check.  Unfortunately, it may not be over.

By law, the Social Security Administration must review your case every three years to ensure that you are still disabled under the rules (if your condition is not expected to improve or you are over age 55, the Continuing Disability Review, or CDR, as it’s called, may be less frequent).  I have received many calls from clients upon receiving a notice of CDR, often with a bit of confusion as to why they have to prove their disability again.  While it can be frustrating, and certainly confusing, there is good news.

The Process

First, a CDR places the burden on Social Security to show that you are no longer disabled.  Whereas during the initial claim, it is your responsibility to prove to Social Security that you are disabled, a CDR reverses the burden.  Here, it is their burden to show that your condition has improved such that you can now work.

This determination is made based on the Medical Improvement Review Standard (MIRS), which has two parts.  First, your disabling medical condition(s) must have improved and second, the improvement must relate to your ability to work.  This essentially means that your condition must have improved enough that Social Security thinks you can work again.  (To that end, if you have been working part-time while disabled and you begin making more than the Substantial Gainful Activity amount, a CDR might be triggered).

Most people do not lose their benefits under a CDR.  However, it is important that you have continued your medical treatment, that those records are available, and that the records reflect that your condition has not improved, or has worsened.  The best thing you can do is to cooperate with Social Security at this point.

You will receive one of two forms: the short-form or long-form CDR.  The short form is 2 pages and is Form SSA-455; the long form is about 13 pages and is SSA-454-BK.  If you have received the short form, then Social Security most likely does not believe that your condition is one that will improve.  If you have received the long form, however, Social Security is likely looking for a more extensive analysis, as it believes, for any number of reasons, that your disability may have improved.

Additionally, you may be asked to attend a consultative examination, or CE, by a doctor chosen by Social Security.  Social Security will pay for this visit, so you don’t have to worry about paying out-of-network rates or coming up with the money for another visit.  Normally, however, you are only sent to a CE when Social Security feels that it does not have enough information to reach a decision, or if information you provided conflicts (which is another reason to carefully and completely fill out the Social Security forms).

Will My Benefits Stop?

If Social Security ultimately determines that you are still disabled, you will continue receiving your benefits, without change (you will continue receiving your benefits throughout the CDR process).  If, however, Social Security determines that you are no longer disabled, your benefits will cease unless you request reconsideration within 10 days of the decision.  You must complete the request for reconsideration form and return it.

In order to continue receiving benefits throughout the appeal process, you must also fill out the Benefit Continuation Election Statement within that 10 day window.  Likewise, if you are found to be recovered after reconsideration, you must request a hearing within 10 days and again request continuing benefits.  If you are still found to have recovered, you can appeal to the Appeals Council, although your benefits will cease as of the date of the decision.  If, however, the Appeals Council remands your case (meaning it sends it back to the judge for a new hearing), your benefits will automatically resume.

Social Security is entitled to repayment of any benefits that you were not entitled to receive.  Thus, if your case is ultimately unsuccessful, but you elected to continue receiving benefits, you may be required to pay that amount back.  However, you may ask for a waiver, so long as your appeals were in good faith and you needed the income for “ordinary and necessary living expenses.”  Likewise, if you forego your benefits during an appeal, you will be entitled to repayment of any past due benefits (often called back benefits) that you were entitled to.

The law and process surrounding Continuing Disability Reviews can be cumbersome and complicated.  If you have received a CDR notice or one of the CDR forms, Thompson Law Offices, LLC is happy to assist you and guide you through the process.  All Social Security consultations are free, whether you are an existing client or not.