Child Health

Child custody cases are the most important cases in the court system. There are two types of child custody. Physical custody is the physical control of a child. Legal custody is the right to make major decisions about the child including educational, religious and medical decisions.

Fighting for the custody of your children is not only heart-wrenching but can have life-long effects on the well-being of your children.

There are two types of custody. Physical custody is the actual physical possession and control of a child (a person under 18 years old). It refers to the person with whom the child lives,Guest Posting either all of the time or part of the time.

Legal custody is the right to make major decisions about the child, which typically include educational, religious, and medical decisions.

A parent can get sole custody of a child or parents can get shared custody. Shared custody is supposed to give the child frequent and continuing contact with and physical access to both parents. The judge can order shared custody if one or both parents asks for it or the parents agree to it or the judge decides that it is in the best interest of the child.

A parent can also be granted partial custody, which is when a non- custodial parent has the right to have the child live with him/her for a certain period of time.

When the judge issues a custody order, it will also address visitation in addition to legal and physical custody issues. Visitation is the right for the non-custodial parent to visit with the child.

What’s the difference between partial custody and visitation?

Someone with visitation has the right to visit the child, but not the right to remove the child from the custodial parent’s control.

Supervised visitation is the chance to visit with the child while in the presence of a third party who watches the interaction between the parent and child and reports back to the judge. Supervised visitation centers are not widely available. Where they do exist, visitation takes place at the facility, with staff on duty to observe and to help address safety concerns A relative or friend may also oversee supervised visitation. For example, a father might have supervised visitation of his child at his sister’s house, with his sister there to watch. Supervised visitation is only ordered in extreme cases.

Unlike visitation, someone with partial custody of a child has the right to take possession of a child, away from the custodial parent, for a certain period of time. For example, a parent may be awarded partial physical custody of a child for certain days during the week.

What are the advantages and disadvantages of getting a custody order?

There may be advantages to obtaining a custody order, including:

Gaining access to your child if the other parent has control of the child;
Having a fixed custody schedule (telling each parent when they can visit and/or take
possession of the child) enforceable by the judge;
The right to make legal decisions about your child; and
The right to have your child live with you.
Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day. But if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.

If a court order is disobeyed by one party, the other party has the right to file a “Petition for Contempt”. If the Judge finds that a party has disobeyed a court order, the Judge can put the party in jail and/or fine him or her, can order that party to pay the other side’s attorney fees, and can order the misbehaving party to post a bond as a guarantee that the contempt will not happen again.

There are also many reasons people choose not to get a custody order from a court. Some people decide not to get a custody order because they don’t want to get the courts involved. These people may have an informal agreement with the other parent that works well for them, or they may think that going to court will result in the other parent being awarded more custody or visitation rights than they are comfortable with. If you decide not to get a custody order, you and the other parent likely have an equal right to make decisions and decide on living arrangements. The exception to this is when paternity has not been established by an unmarried father.

A lawyer can help you evaluate whether getting a custody order is best under your particular circumstances.

Child Support and Child Custody

Pennsylvania considers child support and custody to be separate legal issues. You do not have to have a custody order to file for child support. Whether or not a parent pays child support will generally not alter his or her right to have custody of a child. Likewise, even if you do not have any custody or visitation you still have a duty to support your child. Additionally, filing for child support will not automatically establish custody.

Can I file for custody in Pennsylvania?

Generally, you can file for custody in Pennsylvania if your child has lived in PA for the last six months in a row. (Temporarily leaving the state, such as going on vacation, does not change anything.)

There are certain exceptions to this rule. You may be able to file in Pennsylvania even if your child has not lived in PA for the last six months if:

Your child is less than six months old and has lived in PA since birth;
Your child is in PA and it is necessary in an emergency to protect the child because you, your child, or the child’s sibling are subjected to or threatened with abuse.; or
Your child lived in PA for at least six months but: Moved away from PA, although you must still be living there; and he/she has not lived in any other state for 6 months in a row since leaving PA.
If you already have a custody order from another state and you want to change it, you will likely have to file a petition to change (modify) that order in the state where it was originally issued.

If you’ve recently moved to or fled to PA, a domestic violence organization or and experienced attorney should be able to help.

Who is entitled to seek custody?

The judge will make a custody order that he or she feels is in the best interest of the child. One or both of the child’s parents may receive custody.

A non-parent who has acted in loco parentis (in place of the parent) may also receive custody or visitation. Non-parents within loco parentis status will generally have performed the duties that a parent usually performs – such as being the primary caretaker – for a significant period of time.

Can the child’s grandparent get custody or visitation of the child?

Grandparents may seek custody and visitation rights under certain circumstances:

If a child’s parent has died, the deceased’s parents or grandparents (the grandparents or great-grandparents of the child) may get partial custody and/or visitation rights;
If a child’s parents are unmarried, separated for six or more months, or have filed for divorce, the child’s grandparent or great-grandparent may get partial custody and/or visitation rights;
If a child has lived with a grandparent for a year or more before being removed by the child’s parent(s), the grandparent may get partial custody and/or visitation; or
If a grandparent has assumed the role of the child’s parent for a year or more, and it is not in the best interest of the child to be in the custody of either parent, the grandparent may get physical and legal custody.
In all of the above cases, the judge will consider the amount of contact the grandparent had with the child in the past and the judge must believe that the custody or visitation to the grandparent is in the child’s best interest. In addition, if you do not meet one of the above requirements but you have been acting in place of the child’s parent (known as in loco parentis), you may be able to get custody.

If you are the child’s uncle, aunt, cousin, etc., you can not usually get custody or visitation of the child, unless you have acted in place of the child’s parent (in loco parentis). In that case, you may be able to get visitation rights or be awarded custody of the child.

How will a judge make a decision about custody?

Custody decisions are based on a “best interest of the child” standard. The best interest of the child is determined on a case-by-case basis. The judge will look at many factors to come up with an arrangement that s/he thinks is in the best interest of the child, including:

Which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the non-custodial parent and the child;
The past or present abusive conduct of either parent and the past or present abusive conduct of any person living with either parent (such as a new spouse);
Whether either parent has been charged or convicted of a crime that might endanger a child (e.g., criminal homicide, kidnapping, unlawful restraint, endangering the welfare of a child, or certain sex crimes).
The preference of the child; and
Any other factor that impacts the child’s physical, intellectual and emotional well-being.
After a custody order is in place how can I get it changed?

Because custody is decided in the best interest of the child, an order is never permanent. If a custody order is already in place, either party can ask the judge to change it — you can petition the court for a modification of custody.

To modify (change) a custody order, you will need to go to the court that gave you the order, even if you have moved. Generally, once a court has heard a case, that court will keep the case, even if you move to another state. If you have moved, you can ask the judge to change the jurisdiction (transfer the case) to the new state that you are in although this is often hard to do, especially if the other parent disagrees.

Modifying a custody order or changing the jurisdiction is often complicated and, as with all custody issues, it is recommend that you talk to a lawyer about this.

If there is a custody order in place, can I take my kids out of the state?

It depends on what your custody order says. The custody order may let you to take your children out of the state, prohibit you from taking them out of the state, or not say anything about it.

If you want to move out of state you will need to ask the judge to modify the custody order to reflect the move (i.e. change the visitation schedule or partial custody arrangement). Be aware that if you move or are planning to move, the other parent can request that the judge review (and possibly change) your custody order. The judge may also decide to review/ change the order even if the other parent doesn’t request it. If you want to move, it is your responsibility to convince the judge that the move is in your child’s best interest.

Some factors the judge may consider are:

The potential advantages of the move;
How likely it is that the move would improve the quality of life for you and your children;
Whether the judge thinks you have a good reason for moving and that you are not just moving on a whim;
Whether or not you have a good reason for wanting to move (and you are not moving to hurt the other parent);
Whether or not the other parent has a good reason for objecting to the move(and that the reason is not to hurt you); and
The availability of realistic, substitute visitation arrangements for the other parent that will encourage an ongoing relationship between the children an

Q:What is the Hague … Hague … is a term used to cover a number of … treaties on … areas of the law, ranging from … issues, legal … and mon

Q:What is the Hague Convention?A.The Hague Convention is a term used to cover a number of international treaties on different areas of the law,Guest Posting ranging from commercial issues, legal procedures and money judgments to international child abduction and adoption. There are many Conventions, each covering a different topic and having its own title. This Q&A publication is concerned with the Hague Convention on the Civil Aspects of International Child Abduction, first created October 25, 1980 and since ratified by the U.S. and many, but not all, countries.Q:What is the purpose of the Hague Convention on the Civil Aspects of International Child Abduction?A:The Hague Convention on the Civil Aspects of International Child Abduction is an attempt to deal with situations where a person has wrongfully taken a child(ren) from one country to another or keeps them in a country without the other parent’s permission or legal authority to do so. In other words, this Convention concerns wrongful removal/retention from the child’s state of habitual residence (country of residence). Q:What is the responsibility of each country that signed the Hague Convention on the Civil Aspects of International Child Abduction?A:Each signatory to the treaty agreed to set up a Central Authority to organize each case and act as a clearinghouse for international child abduction issues. For example, the United States Department of Justice was designated the U.S. Central Authority and, in turn, delegated much of that authority to the National Center for Missing and Exploited Children (NCMEC). Some countries signed on to the treaty but have not put much funding nor effort into implementation. Each government has a great deal of power over cases under the Hague Convention on the Civil Aspects of International Child Abduction once transferred within their borders. The referring country, of course, has no real authority at all and therefore one must rely on the individual government where the child has been taken to use that power. Often, a diligent attorney working on a child abduction case is the key to having a child returned. Q:What resources are available to the Central Authority?A:Each country is very different in the resources they apply to Hague cases, ranging from almost nothing to highly sophisticated and coordinated systems. In the U.S., for example, the United States relies on the National Center for Missing and Exploited Children to coordinate efforts among volunteer attorneys throughout the United States, Interpol, the FBI and also local police where abducted children are found. In addition, the National Center maintains contact with the requesting parent and their representatives.Q:How does a case under the Hague Convention on the Civil Aspects of International Child Abduction proceed?A.A party can go in one of at least two procedural directions to start a case. One, the party may independently find and retain an attorney in the jurisdiction where the child is found. The other method is for the party from whom the child was wrongfully removed may make a direct application to the Central Authority in either the child’s habitual country of residence or the country’s Central Authority in which the child is found to seek assistance. The Central Authority then coordinates with an attorney or other proper entities in the proper jurisdiction. Following this, the normal procedure is to have the attorney file paperwork with the local court requesting that the court (1) order local law enforcement or another entity to pick up the child, (2) set a hearing, and (3) order the child returned to the proper custodian and country. Once the child is secured, the court holds the hearing quickly thereafter to review the facts of the case and decide whether returning the child is proper. It is not necessary for the parent from whom the child is abducted to attend the hearing but it is often more convincing for them to testify in person there. Additionally, it is nice for that parent to be present because courts, when warranted, will normally order an immediate return following the hearing and it is often best for the parent to be there to comfort the child and accompany the child home.Q:How does the Hague Convention on the Civil Aspects of International Child Abduction relate to custody?A:The short answer is that it really does not relate to custody. One purpose of the Convention is to simply return children to their state of habitual residence so that a court there with proper jurisdiction can make the appropriate orders regarding the child. The court in the jurisdiction that a party is asking to order the return of a child is not making a custody decision at all; rather, it is just sending the child back to the child’s residence where the proper court can make further rulings. Following a child’s return, there is nothing in the Convention that prevents the proper court in the child’s state of habitual residence from thereafter giving one party or the other custody, visitation or even from allowing one party or the other to take the child out of the jurisdiction again (albeit this time with the proper court permission). Note that if custody proceedings are occurring in the country to which the child has been wrongfully removed/retained, those proceedings are to be put on hold until a decision under the Convention is made.Q:What are possible defenses to having a court order the return of a child?A:There are several possible defenses that may apply to a particular case, although the different courts in various countries have interpreted the Hague Convention on the Civil Aspects of International Child Abduction somewhat differently. Generally speaking, the Hague Convention allows the following defenses:1.the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;2.there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; 3.the judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views;4.The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.Q:Are there timeframes that apply under the Hague Convention on the Civil Aspects of International Child Abduction?A:A number of them, including:1.Children who have attained the age of 16 years are not covered by the Convention. 2.If a child has been wrongfully removed for less than one year, the child’s removal is to be ordered forthwith under the Convention.3.If a child has been wrongfully removed for more than one year, the child should still be returned but an exception is allowed –a court may choose not to return the child if there is evidence that the child is settled in his/her new environment.4.Courts should act quickly in such cases but if one has not reached a decision within six weeks from the date proceedings commenced, an applicant or the Central Authority of the requested State may officially request a reason for the delay.5.The Convention only applies to wrongful removals/retentions occurring after the treaty became effective between the involved countries.6.Generally, the Convention requires that countries act without delay in child abduction cases that fall within its parameters.Phoenix office: 3030 N. Central Ave., Ste. 705 Phoenix, Arizona 85012 Ph: 602-631-9555 Fx: 602-631-4004Goodyear office: 1616 N. Litchfield Rd., Ste. 240 Goodyear, Arizona 85338 Ph: 623-344-7880 Fx: 602-631-4004Visit our website: www.wilcoxlegal.comCheck out our web log: www.arizonafamilylaw.blogspot.comDisclaimer: Wilcox & Wilcox, P.C. and its principles, agents and/or representatives, make no guarantees or representations as to the accuracy or currency of any information herein contained. Providing this brochure does not establish an attorney-client relationship. To create such relationship, both the attorney and potential client must sign a written fee agreement. This information is meant only as general information, may not apply to your case specifically and is not meant to be relied upon for purposes of taking legal action. You should contact an attorney in person for further and specific information. Our family law attorneys are licensed in Arizona only. Copyright © Wilcox & Wilcox, P.C. 2004

Child Custody – The Process of Obtaining Custody of Your Children

Questions and Answers on the Hague Convention on the Civil Aspects of International Child Abduction

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