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

SCHOOL and LEGAL CUSTODY

It’s back to school time.  Does the school know you and your legal rights?   If you are divorced or separated, you might be interested in some legal information and reminders to help make the beginning of the school year go smoothly.  The information contained in this article is not legal advice, and you should consult with a lawyer before you attempt to pursue any custody rights.

  1. In Pennsylvania, ‘‘legal custody’’ means “the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.”   23 Pa .Code 1915.1   Most parents have joint legal custody and are able to speak to the teachers, nurses and administrators in the school, attend functions, and transport their child to and from the school.  Parents are expected to talk to the other legal custodian before making decisions that affect the child’s schooling so that both have input.
  2. “Physical custody “is defined by law as “the actual physical possession and control of a child.” In a more human sense, physical custody is where the child lives, and it is usually shared by some schedule of custodial time. Schools may want to know who has physical custody and who can be expected to pick up the child after school.   If there are other adults who are not custodians but may be picking up the child, it is likely that the school will require the parent’s written permission.  Make sure that the school has your consent before the babysitter shows up!
  3. If there is a court order limiting or restricting the noncustodial parent’s contact with the child, you may want to have a copy of the court order in the student’s record. Even if a parent has restricted physical contact, they should be able to obtain information and see school records with joint legal custody rights. Without a court order, both natural parents have equal access to the child and the child’s school records.
  4. If parents disagree about custody and education issues, there are 16 factors that the Court considers when deciding what is best for the child, and some of them relate to a parent’s involvement in supporting the child’s attendance and good performance in school.  The factors include:  (a) the need for stability and continuity in the child’s education, family life and community life; (b) which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child; and (c) the parental duties performed by each parent on behalf of the child.

In disputes between parents about where the child will attend school, the Court will review all 16 relevant factors. “The paramount concern in a child custody case is the best interests of the child, based on consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being, and is to be made on a case by case basis.” See Staub v. Staub

If you have questions about school and legal custody, physical custody, or the best interests of your child, call the Mazza Law Group and speak to an experienced family law attorney.

 

 

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:

http://www.pacourts.us/assets/opinions/Supreme/out/J-53-2016mo-rev1.pdf?cb=2

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.

 

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.

DO YOU HAVE CUSTODY OF YOUR GRANDCHILD?

Many Grandparents take over the role of custodians when their sons and daughters are incapable of taking care of their own children.  Even if it is only temporary, there are legal ways to ensure that your grandchildren are safe and secure in your care when you are their primary caretaker.

What do you need to know if you have custody of your Grandchild? You have a right to seek court orders awarding you custody or guardianship a child or children living in your home.  Even if their parents are willing to let your grandchildren live in your home, it may be necessary to have a legal document to prove that you are responsible for their primary care in order to take them to the doctor or enroll them in school or arrange for daycare while you are working.

Custody of your Grandchild

If you plan to ask the court to ask for the legal right to keep custody of your grandchildren, you need to have “standing” – a legal reason – giving you the right to file a petition for custody orders.  Standing to request custody orders can exist in several ways, the first of which is when a grandparent is “in loco parentis” to the child – a legal term indicating that the grandparent is acting as a parent with the consent of the parents.

If you are not “in loco parentis,” you must prove that (1)  the relationship began with the parents’ consent or a court order, and (2) you are willing to assume the responsibility for the child, and one of the following situations exist: either (a) the child is determined to be a dependent child; or (b) the child is at substantial risk due to parental abuse or neglect, drug or alcohol abuse or incapacity, or (c) for at least 12 consecutive months, the child has resided with the grandparent and has been removed by the parent.  See 23 Pa.C.S. 5324 If your reason for seeking custody is (c), then you have 6 months from the child’s removal to file for custody.  Don’t wait for the end of the six months, act now if you think it is in the best interests of the child to be with you.

Even if the parents agree that you will be the primary custodian of their child, it still may benefit you and your grandchild to get a court order that establishes your legal rights and describes the parents’ ongoing involvement, if any. If you would like to formalize custody of your grandchildren, a lawyer can help to understand the laws and rules that give you standing to seek a court order confirming your role.  If you want to obtain or maintain custody of your grandchildren, call the experienced family lawyers at The Mazza Law Group, P.C. for advice and assistance.  We have helped literally hundreds of families work thru the process of raising children and grandchildren in non-traditional ways.