Custody and Visitation

Once you and your spouse decide to obtain a divorce, one of the most critical issues to determine are what custody and support arrangements will be in the best interest of your children.

1. What is Custody and Visitation?

There are two aspects to custody, physical and legal custody. Physical custody refers to the actual physical possession and control of a minor child {under 18 years of age}. Legal custody refers to the right to make major life decisions for the child regarding such issues as education, religion and non-emergency medical treatment.

Custody comes in many forms: temporary, sole, split, shared and partial. Temporary custody may be granted upon the filing of a Motion for Pendente in Lite {“pending litigation”}. Upon review of your Motion, the Court will make a decision based on the “best interest of the child” standard. {See “How does a judge make decisions about custody?” below}. In order to be granted temporary custody, you must file a request for hearing along with an Order for Temporary Custody and Support with your Divorce or Custody Complaint.

Sole custody occurs when one parent has both physical and legal custody of the child. Split custody occurs when there is more than one child and each parent receives full physical custody over at least one child.

Shared custody can be granted in several ways. Parents have shared legal custody when they take care of the child but the child has only one primary residence. Shared physical custody occurs when the child has more than one primary residence and spends at least 35% of his or her time with the other parent. Parents can also reach agreements that are any combination of the two.

Partial Custody is what many parents consider visitation; however “visitation” only grants the right to visit a child, not the right to remove the child from the custodial parent’s control, which is what defines partial custody.

2. Who may file for Custody?

If your child has lived in Pennsylvania for the last six months in a row, you may file for custody in Pennsylvania. Occasional, temporary visits outside the state do not affect the timeframe. However, exceptions include if your child is less than six months old, you came to Pennsylvania in order to protect yourself or your children from abuse, or if your child has lived less than six months in Pennsylvania but moved away and has not lived in any other state for six months in a row since moving away.

If there is an existing custody order from another state, you may have to file in that state for a modification of that order.

One or both of a child’s parents, grandparents, and non-parent who has acted in place of the parent for a significant period of time {in loco parentis} may file and be granted custody, either full or partial, and visitation. Grandparents may have to show they are not interfering with the parent-child relationship.

3. Do I need a formal Custody order?

You might not; however, a formal order permits access to your child if the other parent has physical control of the child, and grants you a schedule which can be enforced by the Court.

Some parents choose not to have a formal order as they have agreed upon a schedule which is agreeable to both of them. Under such an informal agreement, both parents generally have equal rights regarding major life decisions and living arrangements for the child.

You should speak with an attorney to help you evaluate whether or not a formal or informal custody arrangement will work best for you and your child.

4. How does a judge make decisions about custody?

Judges use a “best interest of the child” standard, which is determined on a case-by-case basis. Among factors considered are which parent is most likely to allow “frequent and continuing contact” between the non-custodial parent and the child, whether either parent or someone they live with has a history of abuse, whether either parent has committed a crime that might put the child at risk, and many other factors that affect the child’s physical, intellectual and emotional well-being.

5. How do I obtain emergency custody?

The procedures for obtaining emergency custody are different in each county.  You should seek the advice of an attorney if you believe the Court needs to intervene immediately.

6. A custody order is already in place. Can I get it changed?

Circumstances under which the original order was granted may have changed, which the Court recognizes; therefore, a custody order is not permanent. To change the order, you can file a Modification of Custody petition with the Court that issued the current order.

The parent wishing to change the order needs to show the Court a significant change in circumstances has occurred and therefore it is in the child’s best interest to change the current order. A child at least 16 years of age may also petition to have custody change with the same burden of proof as the parent.

7. Can I take my children out of the state or move out of state with my children?

This depends on your custody order. It may permit you to take the children out of state, both temporarily or permanently, or it may ignore the issue all together.

If you plan to move out of state with your children, you will need to petition the Court, convincing the Court the move is in the best interest of the child. The Court will consider whether you have a good reason in the first place for moving, the reasons why the other parent may be trying to prevent the move, the advantages of the move, whether or not the move will result  in an improved quality of life for your child, and the ability to have a reasonable visitation arrangement between the child and the other parent.

Support

1. How is child support calculated?

Generally, calculating child support begins with using Monthly Basic Child Support guidelines as defined by the Pennsylvania Rules of Court.  Click on the following link to find Rule 1910.16-3. 
Support Guidelines and Basic Child Support Schedule:  http://www.pacode.com/secure/data/231/chapter1910/s1910.16-3.html.

Remember this is a guideline only as many other factors are taken into consideration before the Court arrives at a support amount; however, the guidelines provide that a child of divorced, separated or single parents will receive the same amount of support as a child whose parents are still together. The factors considered are:

{1} the net income of the parents;
{2} the earning capacity of the parents;
{3} the assets of the parents;
{4} any unusual needs of the child or the parents; and
{5} any extraordinary expenses

2. How long must I pay or receive child support?

A child support obligation continues until the minor child reaches 18 AND his/her class should have graduated from high school. Both these events must occur before your obligation ends. The paying spouse must also petition Domestic Relations to have support end.

Child support may be ordered paid through Domestic Relations Section of the Court.

3. Can I receive alimony?

Alimony may be granted, though it is not typically granted permanently in Pennsylvania. There are exceptions. In order to determine whether or not alimony is appropriate, the Court considers the standard of living achieved by the couple during their marriage; and each person's earning ability, assets and expenses.

4. How does the Court determine the amount of alimony?

The Court considers the following factors: earnings, source of earnings, and earning capacity of each party; other sources of income for each party including expected income and inheritances; ages, physical/mental/emotional status of the parties; length of marriage, contributions made by one party to the other to increase the earning capacity of the other party; standard of living achieved while the parties were married; relative education of each party and length of time which may be required by the party seeking alimony to find appropriate employment, possible; assets and liabilities of the parties; property brought to the marriage; contribution by one spouse as the homemaker; needs of the parties; marital misconduct; tax implications; and whether or not the party seeking alimony is unable to provide for his or her reasonable needs.

5. Can a support order be changed?

There must be a significant change in circumstances of both parties' income or expenses to change a support order. Once an order is entered it can only be changed if there is a substantial change of circumstances in one or both of the parties' income or expenses.

6. Do I have to wait until my divorce is final before I receive child support or maintenance?

As parents have a duty to support their child at all times, you will not have to wait. This is also true of spousal support, or alimony, though you will have to file a divorce complaint to receive Alimony Pendente Lite.

1. Do I need to hire an attorney for a divorce?

No one needs to hire an attorney; however, it is always highly recommended as you may encounter unforeseen disputes and complications.

2. How is the divorce commenced?

All civil actions, including Divorce, are begun by filing a Complaint.

3. How quickly can I be divorced?

In Pennsylvania, generally the quickest way to obtain a divorce is through an uncontested no fault proceeding. An uncontested no fault divorce can be obtained after the 90 day waiting period has expired, provided the parties have taken the proper steps to distribute all of their marital property.  If the parties have not resolved all their economic issues, then they cannot obtain a divorce.

4. Can my spouse and I retain the same attorney?

Some attorneys will act as a mediator, but it is never advisable to have the same attorney for a divorce. A divorce is an adversarial proceeding, and should be treated as such.

5. How much will my divorce cost?

Each and every divorce is unique; therefore the cost issue is also unique.

6. What if my spouse does not consent to the divorce?

If your spouse does not consent, you may still obtain a divorce, but generally you will have to appear in front of a Divorce Master. The Master is appointed by the Judge to deal with the economic issues and to make a recommendation as to the distribution of marital property.

7. Is there always a trial?

No, not always. If the parties can come to an agreement then there is no need to ever appear in court. However, if the parties cannot agree, as is often the case, then litigation may be necessary.

8. My spouse and I are very cooperative. Is there any way that we can limit attorney fees?

Yes. Generally, if the parties can work directly to resolve their issues, legal fees for both sides may be reduced.

9. What are the grounds for divorce?

There are two grounds for divorce in Pennsylvania fault and no fault.  Most divorces these days are generally no fault divorces, however the fault grounds still exist, those grounds are (1) willful and malicious desertion for one or more years; (2) adultery; (3) cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse; (4) bigamy; (5) sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime; or (6) offered such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome.

10. Will marital fault impact on my rights to a property settlement?

No, not really, however support and alimony may be impacted by marital misconduct.

11. Will the Court papers in my divorce become public records which anyone can read?

Yes, generally all civil court filings are public record.

12. How will the marital property be distributed?

Property is distributed according the following factors contained in the divorce code:

(1) The length of the marriage

(2) Any prior marriage of either party

(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties

(4) The contribution by one party to the education, training or increased earning power of the other party

(5) The opportunity of each party for future acquisitions of capital assets and income

(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits

(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker

(8) The value of the property set apart to each party

(9) The standard of living of the parties established during the marriage

(10) The economic circumstances of each party at the time the division of property is to become effective

(10.1) The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain

(10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain

13. What property is subject to equitable distribution?      

All marital property may be equitably distributed. Generally, martial property is broadly defined as all property acquired by either party during the marriage and the increase in value of any nonmarital property.

14. What property is not subject to equitable distribution?

Separate property is not equitably distributed. Separate property is broadly defined as:

(1) Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.
 
(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
 
(3) Property acquired by gift, except between spouses, bequest, devise or descent or property acquired in exchange for such property.
 
(4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.

(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the date of final separation.

(6) Veterans' benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958, as amended, except for those benefits received by a veteran where the veteran has waived a portion of his military retirement pay in order to receive veterans' compensation.
 
(7) Property to the extent to which the property has been mortgaged or otherwise encumbered in good faith for value prior to the date of final separation.
 
(8) Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

15. What about child care, medical care and other costs?

Reasonable child care expenses paid by either parent, if necessary to maintain employment or appropriate education in pursuit of income, shall be allocated between the parties in proportion to their net incomes and added to his and her basic support obligation. When a parent is receiving a child care subsidy through the Department of Public Welfare, the expenses to be allocated between the parties shall be the full unsubsidized cost of the child care, not just the amount actually paid by the parent receiving the subsidy. However, if allocation of the unsubsidized amount would result in a support order that is overly burdensome to the obligor, deviation pursuant to Rule 1910.16-5 may be warranted.

A party's payment of a premium to provide health insurance coverage on behalf of the other party or the children shall be allocated between the parties in proportion to their net incomes, including the portion of the premium attributable to the party who is paying it, as long as a statutory duty of support is owed to the party who is paying the premium. If the obligor is paying the premium, then the obligee's share is deducted from the obligor's basic support obligation. If the obligee is paying the premium, then the obligor's share is added to his or her basic support obligation. Employer-paid premiums are not subject to allocation.

When the health insurance covers a party to whom no statutory duty of support is owed or other persons who are not parties to the support action or children who are not the subjects of the support action, the portion of the premium attributable to them must be excluded from allocation. In the event this portion is not known or cannot be verified, it shall be calculated as follows. First, determine the cost per person by dividing the total cost of the premium by the number of persons covered under the policy. Second, multiply the cost per person by the number of persons who are not owed a statutory duty of support, or are not parties to, or the subject of the support action. The resulting amount is excluded from allocation.

16. What are unreimbursed medical expenses?

Unreimbursed medical expenses are those expenses not covered by insurance such as insurance co-payments and deductibles and all expenses incurred for reasonably necessary medical services and supplies, including but not limited to surgical, dental and optical services, and orthodontia. They do not include cosmetic, chiropractic, psychiatric, psychological or other services unless specifically directed in the order of court.

17. Are Private School and Mortgage payments compensable?

Since support schedule is general and does not take into consideration the Private School Tuition, Summer Camp, and Other Needs, then the court may determine that one or more such needs are reasonable, the expense thereof shall be allocated between the parties in proportion to their net incomes. The obligor's share may be added to his or her basic support obligation.

The guidelines assume that the spouse occupying the marital residence will be solely responsible for the mortgage payment, real estate taxes, and homeowners' insurance. If the obligee is living in the marital residence and the mortgage payment exceeds 25% of the obligee's net income (including amounts of spousal support, alimony pendente lite and child support), the court may direct the obligor to assume up to 50% of the excess amount as part of the total support award. If the obligor is occupying the marital residence and the mortgage payment exceeds 25% of the obligor's monthly net income (less any amount of spousal support, alimony pendente lite or child support the obligor is paying), the court may make an appropriate downward adjustment in the obligor's support obligation. For purposes of this subdivision, the term "mortgage" shall include first mortgages, real estate taxes and homeowners' insurance and may include any subsequent mortgages, home equity loans and any other obligations incurred during the marriage which are secured by the marital residence.