The Mazza Law Group, P.C.
2790 W. College Ave., Suite 800
State College, PA 16801 March 10, 2016
(814) 237-6255

Custody & Visitation Rights – Incarcerated Parents

Judges in Pennsylvania are required to consider sixteen factors when deciding the custody schedule that is in the best interest of a child.  These relevant factors are listed in 23 Pa. C.S. §5328(a).  All of the factors “which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being” are said to be important in deciding who should have custody and visitation rights.  The Court must give weighted consideration to those factors which affect the safety of the child.”

What happens when a parent is in prison? In the case of Etter v. Rose, 454 PA.Super. 138 (1996), the Superior Court outlined additional considerations to be evaluated when a parent is incarcerated. They include:  (1) age of the child; (2) distance and hardship to the child in traveling to the visitation site; (3) the type of supervision at the visit;  (4) identification of the person(s) transporting the child and by what means; (5) the effect on the child both physically and emotionally; (6) whether the parent has and does exhibit a genuine interest in the child; and (7) whether reasonable contacts were maintained in the past.

The Pennsylvania Supreme Court, in D.R.C. v. J.A.Z., 612 Pa. 519 (2011) added that the type of crime committed by the parent is relevant to the best interest of the child when deciding custody.  By statute, a parent must report whether they (or any other adult in their household) have committed a criminal offense if they are seeking a custody order.  While it may be a red flag warranting the attention of the Court, a conviction does not automatically prohibit visitation – even if it has resulted in the incarceration of the parent.

Most recently, in the case of M.G. v. L.D.,  decided on February 8, 2017, the Superior Court confirmed that the nature of the criminal conduct that led to the parent’s incarceration should be considered when determining the child’s best interest.  The M.G. v. L.D. court evaluated the incarcerated mother’s crime (shooting the child’s other parent) as well as her other behaviors in deciding whether she should have telephone contact, written correspondence or visitation with her daughter. Even though fundamental parental rights are protected by the First and Fourteenth Amendments to the Constitution, the child’s best interest should be of paramount concern to the Court.  Incarceration, in and of itself, does not prevent a parent from seeing a child, but visitation must be adjusted to account for the unavailability of the parent.   If you want to learn more about custody and visitation rights of parents, whether incarcerated or free, consult with an experienced family law attorney at the Mazza Law Group, P.C.

Grandparent Custody Act: Supreme Court rules part unconstitutional

The most important, first step is to learn whether you have “standing” to request grandparent custody.  “Standing” means the legal right to ask the court for custody. Informally, think of it as “getting your foot in the door” to get “a bite at the apple.”   It is only possible to seek custody of grandchildren under certain circumstances, which are outlined in 23 Pa.C.S.5324. In general, a grandparent must be taking care of the child (in loco parentis) or desire be the grandchild’s primary custodian due to the parents’ failure or inability to perform their duties.  The final step is always to prove that it is in the child’s best interest to live primarily with a grandparent. In an article that we previously published entitled “Do you have custody of your grandchild?” we explained the legal steps that you need to take to get custody of your grandchildren.

The law also describes when a grandparent has “standing” to ask for “partial custody,” or visitation, with a grandchild.  23 Pa. C.S.A. 5325.  The law as currently written says that a grandparent can request a court-ordered visitation schedule under certain conditions, including:

1)  where a parent is deceased;

2)  where the parents have been separated for at least six months or have initiated and continued divorce proceedings (emphasis added); or

3) where the child lived with the grandparent for at least twelve consecutive months and is removed from the grandparent’s home by a parent.


Now, however, the first clause of paragraph two has been disallowed by the Pennsylvania Supreme Court.  In the case of D.P. v. G.J.P., 25 WAP 2015, decided September 9, 2016, the Court ruled that it is unconstitutional to allow grandparents to seek partial custody solely because the parents “have been separated for at least six months.”

The parents in the D.P v. G.J.P. case won the legal argument that their separation should not be enough to give the grandparents “standing” to ask for partial custody. The Supreme Court agreed with the parents and said this section of the law violated parents’ fundamental, constitutional rights and cannot be used to ask the Court to award the grandparents’ custody. The entire opinion can be read here:

Under the Fourteenth Amendment, parents have what the courts call a “fundamental liberty interest in raising their children as they see fit.” This includes the right to decide whether the grandparents should have regular visitation with their children.  It is assumed that parents act in their children’s best interests, and this fact does not change when parents decide to separate.

Courts in Pennsylvania may no longer intervene to order grandparent visitation just because the parents have been separated for six months. For now, unless and until the law is re-written, it is still possible for a grandparent to seek visitation rights through the Court.  It can only happen under paragraphs one and three of the law, when there is a deceased parent, or when the grandparents have had custody for a year and the child returned to the parent’s care. It is now unconstitutional to infringe on a parent’s rights and give a grandparent partial custody solely because of the breakup of the parents.

If you are a parent or a grandparent who wants to know more about the Grandparent Custody Act and how the Constitution can affect family law, talk to an attorney at the Mazza Law Group for legal information and advice.


Child Return following Removal | International Custody Law

The Hague Convention on the Civil Aspects of Child Abduction provides a method for petitioning for child return following removal from his or her “habitual residence” to another country.  However, the Convention only applies in signatory countries listed here.

In an interesting decision earlier this week, the 3rd Circuit Court of Appeals decided whether the Hague Convention would apply to require the child return to where they had lived on the Caribbean island of St. Martin but had been taken to the United States by a parent.  The interesting issue arises because St. Martin, a 34 square-mile island, is home to two distinct, but highly integrated countries- French St. Martin and Dutch Sint Maarten.  French St. Martin is a signatory to the Convention (through France), while Dutch Sint Maarten is not.

In Didon v. Castillo, the issue for the court was whether the Hague Convention would apply- given that the child had a home in Dutch Sint Maarten, but the father worked in, and the child attended school in, French St. Martin.  Additionally, the family’s administrative affairs, such as the child’s insurance, were managed in French St. Martin.

When the mother brought the child to the Pennsylvania for a family wedding but failed to return as promised, father filed a petition in the Middle District of Pennsylvania under the Hague Convention, which would mandate the child’s return if it was applicable.  The court granted the petition, and ordered the child returned to father, holding that the Hague Convention did apply, based on a finding that the child was a concurrent resident of both French Saint Martin and Dutch Sint Maarten.

On appeal, mother argued that the Hague Convention did not apply because the children lived in the non-signatory country of Dutch Sint Maarten.  In its analysis of the issue, the 3rd circuit concluded that while it was possible for a child to have alternating habitual residences (where the child would have homes in two countries and spend equal periods in both), that concurrent habitual residences, as argued by father, were not contemplated by the convention.

Therefore, since the child’s home was in Dutch Sint Maarten, the Hague Convention did not apply and the 3rd Circuit ordered that the child return to the United States.

The experienced attorneys at The Mazza Law Group can help with complex legal issues.  Call today for a consultation.

Parental Alienation Awareness Day – 4/25

Parental Alienation, sometimes known as Hostile Aggressive Parenting,  is behavior by a parent which could cause alienation in the relationship between a child and the other parent.

Parental Alienation occurs most often in divorce and custody disputes, where a child may be turned against a parent by a series of actions or statements by the other parent, either subtle or overt, which may disrupt an otherwise loving bond.  These Parental Alienation tactics include speaking negatively about the other parent to or in the presence of the child, interfering with communication and visitation, and sharing inappropriate details of the marriage, divorce, custody or court proceedings.  The child is mentally manipulated or bullied into believing that the other parent is, in effect, the enemy, to be disrespected and avoided.

Whether acting out of ignorance or rage, a parent who puts the child in the middle of a custody dispute with such negative images and descriptions of the other parent takes advantage of the suggestibility and dependency a child.  Parental Alienation is often considered by mental health professionals to be a form of emotional abuse, and children who are exposed to such behaviors for extended periods of time may become confused and depressed.

Custody laws in Pennsylvania are not supportive of Parental Alienation techniques.  23 Pa. C.S. 5328(a)    When deciding the custody schedule that is in the best interest of the child, the Courts are required to consider which parent is more likely to encourage contact with the other parent, and any attempts that may have been made to negatively affect the child’s relationship with the other parent.  Judges need to know whether a parent is willing to cooperate with the other parent and minimize conflict.    Parental Alienation is likely to be negatively construed by the Court when considering these factors and making custody decisions.

Complete this questionnaire if you are interested in learning more about Parental Alienation as it relates to you.     If you are involved in a divorce or custody case and find that you are engaged in or victimized by Parental Alienation behaviors, you may contact the family law attorneys at The Mazza Law Group, P.C. for advice and assistance.

Custody Agreement – Be Careful What you Bargain For

A self-imposed financial penalty in a custody agreement was recently upheld by the Superior Court against a father who had agreed to pay damages for seeking a modification of his own child custody schedule.  In the matter of Huss v. Weaver, 2016 Pa. Super. 24, the Court held that the father’s custody agreement to pay $10,000 to the mother each time he seeks a custodial modification was enforceable, rejecting the father’s argument that the stipulation violates public policy.

In general, public policy is used by the Courts to reinforce social expectations and societal norms that reflect morality. In this case, the father argued that it was inappropriate to require an individual to pay damages to request a change in custody agreement orders because it is contrary to the normal expectations of the public. The father, who is a lawyer, argued that the $10,000 penalty to which he had agreed violated public policy against bargaining away custody or visitation rights.

Ability to Challenge Custody Agreement

The Court found that, unlike child support cases, the parents can enter a custody agreement that may affect one party’s ability to challenge or modify the custodial arrangement. In contrast, the Court has previously held that children have the right to be supported, so that any efforts by parents to dispose of the obligation to pay support by agreement with the other parent should be struck down as against public policy.  When it comes to custodial rights, the same public policy is not invoked, according to the decision.

The ruling relates only to the interpretation of the parent’s contract, so it does not otherwise affect the Court’s treatment of the best interests of children when considering the modification request.  The father’s obligation to pay liquidated damages to the mother for the necessity of addressing modification requests is enforceable. Contact our family law attorneys to review your custody agreement before you sign.