Pennsylvania makes a distinction between allocation of decision-making parental responsibilities (formerly known as “legal custody”) and parenting time and (formerly known as “physical custody” and “visitation”). If parents fail to reach agreement regarding allocation of parental responsibilities and parenting time, the court will make the decisions for them. Pittsburgh family lawyer Jennifer McEnroe discusses common issues in child-custody disputes, including: allocation of parental responsibilities and parenting time, custody evaluations, relocation requests, and the use of a guardian ad litem in high-conflict cases.
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Hosted By: Diana Shepherd, Editorial Director, Divorce Magazine
Guest Speaker: Jennifer M. McEnroe, Family Lawyer at McCarthy, McDonald, Schulberg & Joy
Bio: Jennifer McEnroe is a partner at Pittsburgh family law firm McCarthy, McDonald, Schulberg & Joy. She is experienced in all aspects of family law, including child custody and parenting time, child support, spousal support, high-net-worth divorces, and adoptions. She has been appointed by various judges in Allegheny County to serve as a guardian ad litem in high-conflict child-custody matters.
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Read the Transcript of this Podcast Below.
In Pennsylvania, is allocation of parental decision-making different from physical time spent with the children?
Yes. In Pennsylvania, there is the concept of legal custody, which means the right to make decisions on behalf of the children, such as medical, education and religious decisions. Legal custody is often shared, meaning that both parents have the right to participate in decisions regarding where their children will attend school, what type of medical care they will receive, etc. There are cases in which the court may award one parent sole legal custody, which typically involve situations where one parent has a history of poor-decision making, or the parties repeatedly cannot agree on legal custody issues. It’s even possible for the court to award a parent sole legal custody as to one particular legal custody issue, such as one parent being permitted to decide where the child will attend school, or one parent being permitted to make all medical decisions. That is more unusual, but it can happen, in some circumstances.
In addition, there is the concept of physical custody, which refers to where the child actually lives. Physical custody is the day-to-day schedule of where the child will live, as well as holiday schedules and vacation schedules. Physical can be shared, where both parents have equal or close to equal time with the children. One parent may be awarded primary custody and the other parent may have partial physical custody, such as every other weekend. There can be many variations of partial custody, beyond just every other weekend. Less frequently, a parent may have primary physical custody and the other parent may have supervised visitation, which is where their visits are supervised by a third party, who can be a friend, relative, or a professional paid supervisor. And then, in rare cases, it is possible for the court to grant sole physical custody to one parent.
What happens when the parents cannot agree on where their children will attend school? For example, what if one parent prefers private school over public school?
Choice of school is considered a legal custody issue, so if the parents cannot agree on where their child will attend school, the court will schedule a hearing on this issue. At the hearing, both parents can present evidence on the respective schools and the court will make a determination as to which school the child will ultimately attend.
I’ve represented clients in all kinds of school choice hearings, including public v. private schools and even a case where the court had to decide which elementary school that the child would attend in the same school district.
Types of evidence that the court would consider in a school choice hearing include information about the respective schools, such as class size, Curriculum, location, ranking, etc.
It’s also possible for the court to choose to give one parent the authority to decide where the children go to school.
At what age does a child’s preference control the custody determination?
In Pennsylvania, one of the 16 factors that the court is required to consider in an award of custody is “the well-reasoned preference of the child, based on the child’s maturity and judgment.” There is no specific age guidance provided in the statue, so really, at any age, the child’s preference is to be considered by the court. In practice, however, generally speaking the weight given to the child’s preference is going to depend on the child’s age, maturity and their judgment. Most often, the preferences of older teenagers are given significant weight by the court in a custody decision. However, if a younger child is viewed by the court as mature and having good judgment, the court may give weight even to a younger child’s preference. The court will also consider the reasons given for the child’s preference when deciding how much weight to give it. The child’s preference is never the only factor to be considered by the court though.
How is evidence of child’s preference regarding custody provided to the court? Does the child come to court to talk about it?
In some cases, the court will order a custody evaluation, which involves a psychologist being appointed to evaluate the parties and their children. In that process, the children are usually interviewed by the psychologist and depending on their ages, they may be asked questions to assess whether they have a preference regarding where they want to live. That information would be part of the custody evaluation, which is provided to the parents and to the judge.
In cases without a custody evaluation, most often evidence of the child’s preference would come directly from the child. Either parent may present the child as a witness, and the child would testify to the court. This is usually done in the Judge’s chambers, with only the attorneys present.
What is a custody evaluation – and how is it used by the court?
A custody evaluation is a process where a psychologist will evaluate the parents and children and possibly will make a recommendation to the judge regarding child custody. They are not ordered in every case, but often are ordered in cases where, for example, both parents are seeking primary custody of the children. Sometimes an evaluation can be ordered on a specific issue, such as in regard to allegations of drug abuse or alcohol abuse. In a custody evaluation, the psychologist will generally meet with the parents two to three times and each parent will bring the children to meet with the psychologist one time. The psychologist will obtain background information and family history from the parents. They will also administer certain psychological tests to the parents, will generally observe the parents with the children, may meet with the children individually and often will review information from third parties, such as therapists, guidance counselors, or others who live with the children, such as grandparents, or significant others. All of this information will be assessed by the psychologist and put into a detailed report, which is then given to the judge and the parents. If the case does not settle, then the psychologist is usually called as a witness for one of the parents.
What if one of the parents wants to relocate to a different state or even a different country – perhaps for work, or to be closer to their family, for instance? Is it possible to relocate with a child?
In Pennsylvania, there is a custody relocation statute that addresses the law regarding whether a parent will be permitted to move with their child. Based on the statute, a parent generally cannot relocate without having the permission of the other parent or without obtaining approval of the court. When, for example, a parent wants to relocate with a child, they must serve a Notice of Relocation on the other parent, and that parent will have a period of time in which to object to the move. If the other parent objects, then the court will schedule a hearing in order to determine if the requested relocation will be approved. The custody relocation statute contains a list of 10 factors to be considered by the judge in deciding whether to grant the request for a relocation.
To answer the question, it is possible to relocate with a child, and it’s usually very dependent of the specific facts of each situation. If you are considering a relocation, it’s very important to consult with an attorney as soon as possible.
It’s also important to note that not every move would be considered a relocation. In some cases – for example, a move within the same school district – it would not be a relocation case.
What is a “guardian ad litem,” and when is one helpful in a custody matter?
A guardian ad litem, or GAL, as we would typically call it, is a person that’s appointed by a judge to represent the child’s best interests in a custody matter. A parent can request that a judge appoint a guardian ad litem in a custody matter and, if the judge grants that request, then typically the fees for the guardian ad litem are paid for equally by the parents.
The GAL is typically granted access to the child’s medical records, their psychological records, and their school records. The GAL typically meets with the parents and then they would meet with the children on a regular basis during a custody matter. They would be able to meet with the children in both home environments, so they’d be able to meet with the children at mom’s house and then at dad’s house – and even elsewhere in the community if that was appropriate.
The guardian ad litem can be an attorney, but they do not have to be an attorney; they can also be a mental-health professional. In Pennsylvania, they do not present evidence to the court – meaning they don’t call witnesses or cross-examine witnesses as an attorney normally would – but they do testify as a witness in a custody trial. They also provide a report and a recommendation to the court based on all of the information that they’ve obtained.
A guardian ad litem can be helpful when there are more serious issues alleged in the custody case – such as concerns about child abuse, concerns about parental alienation, or someone having concerns about the living conditions of a child. There are a lot of different situations where a guardian ad litem would be helpful.
In Pennsylvania, what are the different methods of resolving a custody dispute?
A custody dispute can be resolved by various methods – including the traditional court process, mediation, collaborative law, and simply negotiation between the parties’ respective attorneys. If possible, it’s usually best to try to resolve a custody matter outside of court. The main reason for this is that parents are usually the best equipped to make decisions about the living arrangements, the school, and the medical decisions for their children. They simply know their own child better than a Judge is likely ever going to be able to inform themselves about the situation.
Some ways to resolve a custody dispute outside of court are through mediation or through collaborative law. In mediation, the parties will sit down with a neutral mediator who will help them resolve their custody matter – sometimes in one or a series of mediation sessions.
In collaborative law, the parties each hire an attorney trained in the collaborative law process and they attend a series of meetings with their attorneys in order to resolve the issues. They can also include a neutral third party such as a therapist. In this process, the parties sign a contract where they agree that they will not resort to court and that if the collaborative process is unsuccessful, they will each have to hire new attorneys. This process allows the parties to have a lot more ownership of their decisions. It also usually allows for more creativity in custody arrangements that will work best for particular children.
Of course, these methods may not work in every case, so the court process is available as well. That would involve filing a custody complaint and moving through the court system, which generally involves a parenting class, a mediation or conciliation, and then ultimately a custody trial. There are many opportunities during that process to still be able to reach a settlement, but if you cannot reach a settlement, ultimately you will have a custody trial.
During a divorce, how can someone protect themselves from their ex-spouse’s claims that they were minimally involved in the children’s lives?
Obviously, the most important way to protect against those claims is to be involved in your children’s lives. It’s important to continue doing the things that you’ve always done in the past, so go to the parent-teacher conferences at school, go to the school concerts, go to the doctor’s appointments, and attend your children’s sports practices and their games if they’re involved in sports. If you’re involved with your children, then there will be witnesses and there will be evidence of your involvement. There will be photos, there will be records. For example, doctor’s offices often keep records of which parent brought the child to an appointment. The most important way to prevent someone from claiming that you were not involved is to continue with your involvement after separation.
During a custody dispute, how can a parent protect themselves from their ex-spouse lying about events?
It can become very important to document things when you are going through a custody dispute. Keep emails, keep calendars, make agreements in writing. If necessary, bring a relative or friend to custody exchanges. You can ask the court to order the parents to use Our Family Wizard, which is an app that permits parents to communicate with each other and share schedules and other information. The nice thing about it is that it provides you with a verification of whether.
It can become very important to document things when you’re going through a custody matter. I always tell clients to keep their emails, keep their calendars, and, typically, try to make agreements with your spouse in writing. If necessary, you might want to bring a relative or a friend to custody exchanges. Obviously, if that person is coming along to a custody exchange, their role is simply to sit in the car and observe. That would help in terms of having a witness. You can also ask the court to order both parents to use Our Family Wizard: a computer program with an app that permits parents to communicate with each other and share schedules and other information about the children. One of the nice things about it is that it provides you with a verification of whether or not the other parent has actually read your email. Parents can no longer claim, “Oh, I didn’t get that email.”