AN OVERVIEW OF CHILD CUSTODY IN PHILADELPHIA
Understanding the ins and outs of Child Custody in Philadelphia is difficult for attorneys, let alone the average citizen. I am going to try to inform you of what I think is most important for you to know if you are thinking about establishing a custody order for your child(ren) or in the midst of custody proceedings in court.
Initially, you need to know that if you have had a child or children without being married to the other parent, legally, neither one of you has custody of the child according to the law. The child may be with you for the majority or all of the time; however, you have no more legal right to prevent the other parent from seeing the child than the other parent has to demand that you allow him or her to see the child.
Child custody and child support are two different aspects involving children. In Philadelphia County they do not co-mingle, but at times you’ll think they do, and rightfully so. Sometimes, when the parent who the child resides with files for child support, this leads to the other part filing for custody. Now, are we to believe that the non-custodial parent has been hit with a sudden overpowering need to have the child with him on a permanent basis? Okay, maybe that is the case however; it is also likely that the non-custodial parent has heard that if he can obtain custody of the child he does not have to pay child support. There will be a lot of legal hoops that one parent has to jump through to have a Judge switch custody from one parent to another, or to grant both parties joint custody where the child physically spends 50% of the time with one parent and 50% of the time with the other parent. Also, just because a parent is not paying court ordered child support, that information cannot prevent the parent who is not paying child support from obtaining partial custody or visitation with the child.
If you and your child live in Philadelphia, you can file for child custody at 34 S. 11th Street. There is a cost of $70.80 to file a custody petition. Make sure that you bring information about the other party, especially a current address. He or she must be notified of the custody action for it to proceed in court. On the date that you file for custody or shortly thereafter, you will receive a date on which you and the other party must appear before a Child Custody Master. The purpose of this hearing is for the issues to be laid out and to have a custody order put in place.
- A final custody agreement order may be put in place if the parties can agree to the terms and conditions of their custody arrangement. If that is the case, the order will be established, all parties will sign it and it will eventually be reviewed by the court and made the final custody order, as far as the court is concerned.
- A temporary custody order may be put in place if the parties cannot agree to the terms and conditions of their custody arrangement. This is the custody order which will remain in place until after the full custody hearing in front of a Common Pleas Judge in the Domestic Relations branch of Family Court. The date of this custody hearing may be several weeks to several months away from the date of the Master’s hearing.
It is not unusual for parties to appear at the initial Custody Master’s Hearing without an attorney. If you are of the mindset that you will be reaching an agreement, it might make sense to have an attorney present so that you are aware of your responsibilities under the order. If you are sure you will not be reaching an agreement, just stick to your decision, and request a hearing before a judge. The Custody Master will comply. At this point you may need to seek the services of an attorney.
Having an attorney representing you in a custody hearing is of utmost importance. I have seen many, many cases where people have represented themselves in custody hearings and have ended up either losing custody of their child when they probably would not have if they were represented by an attorney. I have also seen many circumstances where Judges have issued the most convoluted orders that will have a person transferring custody to the other party “every Wednesday from 4:00 p.m. to 7:00 p.m. drop off curbside at father’s place of employment, child to be picked up by mother to return home. Father to have visitation every Friday from 7:00 pm to Sunday 9:00 am when Mother will pick child up and take them to church then return child to father by 2:00 pm., where child shall remain until father drops child off at mother’s home by 7:00 pm.”
All parties must be constantly reminded that the standard regarding the custody of a child is what is in the best interest of the child, not the mother, not the father, grandmother, aunt, uncles or whomever. The parties should think long and hard before they begin a “custody battle.” Most times Judges can see through certain situations and realize that the fighting over the child has more to do with the animosity between the parties, which the child is in the middle. Be careful, these types of cases may end up with neither party maintaining custody. There are some attorneys who will take a case and do whatever their client wants, even when it is clear that they are not acting in the best interest of the child. Beware of attorneys who will do anything for $$$$$. The child is the one who will suffer by being pulled back and forth.
When seeking a qualified attorney, be sure to question any attorney that you consult with regarding their trial experience. A custody hearing is a trail where attorneys are expected to know how to try a case. Just because you see an attorney every day in Family Court, this does not mean they are effective litigators. Ask around before you retain them. Also, just because an attorney yells insults, screams, jumps up and down and shoves his (or her) finger in another attorney’s face in the hall way or in the waiting area, this also does not mean that they are a good attorney. It is smoke and mirrors usually, they are using these tactics to intimidate other attorneys—not a good idea in Family Court. Anyway, be careful whom you retain.
After retaining an attorney, you must aid him or her in preparing for the trial. In the most extreme cases, such as those involving domestic abuse and violence, your attorney should seek out all court documents and information regarding any past incidents of abuse against anybody, especially against the parent and the child. All of this information is relevant and can be brought to the Judge’s attention during the custody trial.
Also, if you know the other party has some condition that may interfere with his or her ability to properly parent the child, your attorney can request the court order the party to take a mental health evaluation.
If you believe that the other party’s living conditions are not acceptable or if you are completely unaware of what the party’s living conditions are, you can request that the court order a home evaluation. Family Court personnel will inspect the living space and create a report for the judge.
The actual custody trial will proceed with the court determining the level of custody that each party wants. Then the trial will commence with each side presenting their evidence as to why the court should award them their requested level of custody. At the end of the trial, the judge will render a decision.
Custody orders in Philadelphia County are modifiable. That means that until the child becomes eighteen years old, whatever order is in place, may be modified as it suits the best interests of the child.
The different types of custody are: Physical Custody & Legal Custody
Primary Physical Custody: The child lives with the person with this type of custody most of the time.
Partial (Physical) Custody: Allows the non-custodial parent to take the child from the parent with Primary Physical Custody at & for specified periods of time.
Visitation: The non-custodial parent has the right to visit the child but not the right to take the child anywhere. The visits may be supervised by the custodial parent, a family member or another responsible adult. The visits may also be held in the nursery at 1801 Vine Street and supervised by court staff.
Shared Custody: Also called joint custody, where the parties share custody of the child.
Legal Custody: This is the right to make important decisions in the child’s life including: medical, religious and educational decisions. If any party fails to abide by the custody order, the other party can go down to 34 S. 11th Street and file a contempt of custody complaint. This matter will be listed before a judge who will hear from both parties before determining the outcome.
I cannot express to you the seriousness with which you should undertake any type of child custody issues. Seek what is best for you child(ren) at every stage and work towards the outcome with the least amount of disruption to the child(ren). Even after the custody order has been established, if you notice any change in your child’s behavior, attitude, sleeping habits, anxiety level, or bed-wetting status do not hesitate to consult your pediatrician as soon as possible and talk to the other parent about suspending visitation until the issue can be revisited in court.
Theresa D. Brunson, Esquire spent a decade as a Philadelphia City Prosecutor. Currently in private practice she continues to work within the court system as a law clerk for a State judge. After having tried thousands of cases Ms. Brunson is well versed in all aspects of the law.
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