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Going viral: COVID-19 and your custody order

March 18, 2020 · by Pittsburgh Family Law Services, P.C.

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“Grown-ups never understand anything by themselves, and it is tiresome for children to be always and forever explaining things to them.” – Antoine de Saint-Exupéry

Over the last several days, families throughout Pennsylvania, many already too familiar with struggling, have begun facing the new challenge of suddenly being required to work from home. Thanks to closed schools, many children are either at home while their harried parents try to care for them while also focusing on their work, or they are in hastily-arranged extended childcare for a premium price. Restaurants and other public spaces are closed, supermarkets are bare-shelved madhouses, and money is tighter than ever. Confusion and fear are everywhere. Last week, we were reading about this in the news… but today, we are the news.

If you are a separated parent of young children in Pennsylvania, you have even more to handle. You may have a court order for custody, but the court that would enforce it is probably already in emergency shutdown. We are constantly being told to travel only when we must, to limit person-to-person contacts and to stay home as much as possible. Your co-parent may already have decided, for no reason you can understand, that you are so badly infected that your child will disintegrate the moment you say hello. I have spoken with parents and fellow attorneys about how COVID-19 affects custody orders. While there is no single answer or piece of guidance that will apply to every situation, there are some points that I will encourage all parents with custody concerns to consider.

First, unless you receive an official court order with a judge’s signature on it stating otherwise, your custody order remains valid and enforceable, and you will be held accountable for violations. I always tell my clients that if they are physically able to follow the court order, they must do so. While there may be many reasons to do otherwise that feel valid (or even compelling) in the moment, the safest and best course of action almost every time is to follow it as written and to address the deeper issues later. Even now, in circumstances which are unpredictable and subject to sudden changes that are out of any person’s control, child custody issues are best handled directly by the parents themselves, outside of court. The more you and your co-parent can communicate respectfully and find ways to work together effectively for your child’s benefit, the more likely that even if you cannot avoid court involvement altogether, you will have avoided making a bad situation worse. Judges do not view it favorably when parents substitute their own judgment for that of the court.

You can start avoiding trouble right now, by opening up a dialogue with your co-parent to discuss your respective concerns. If you are ill or fear you might have been exposed to the virus, tell your co-parent. The same goes for your child. If you are not ill or at any known risk of illness, assure your co-parent that you are not ill, and that you will observe all reasonable precautions to keep your child healthy and safe. Contact your child’s pediatrician or your family doctor as needed to learn what precautions to take and what to look for, and where to go for testing or help if your child shows symptoms. Inquire whether there are any additional recommended precautions for scheduled custody exchanges. Either involve your co-parent in this discussion so that his or her own concerns might be addressed to minimize argument later on, or share freely with him or her what you learned. Even if you have sole legal custody, you must keep the other parent fully informed. It will be much easier to make any necessary adjustments to your custody schedule if both of you know that a medical professional has recommended it.

After gaining understanding of the medical risks and concerns, the two of you should discuss the current custody arrangement, and whether changes should be made at least on a temporary basis. Maybe a different exchange time would work better for one parent’s work schedule, or perhaps alternative (or back-up) child-care arrangements need to be made because your usual provider either is ill, or is immune-compromised and cannot risk exposure to COVID-19. Perhaps instead of meeting at a public halfway-point for scheduled exchanges, each parent drives the full distance to the other party’s residence to pick up the children. Perhaps a temporary week on/week off arrangement is preferable over your usual schedule that requires two or three exchanges each week.

It may be that you and the other parent will decide that custody exchanges of any kind are too much of a risk for the time being. This could be the case if you, your co-parent, your child or someone else who resides with one of you is considered high-risk. If you decide this – together, that is – make sure that you agree to keep each other informed and involved as much as possible, including more flexible with phone calls or Facetime chats. At all times, treat your child’s relationship with his or her other parent as something valuable and important.

These suggestions are harder to implement if you and your co-parent have a history of mistrust, hostility or other challenges communicating and working together. If you find that you are not able to reach agreement with your co-parent, you should contact your Pennsylvania family law attorney immediately to discuss your concerns and get advice. There is plenty of information available online, but no article can give you everything you need. Your child custody lawyer, in Pittsburgh or elsewhere, can review your situation and offer you personalized insight and options that you may never have seen for yourself. Your lawyer can also help you understand what court options may still remain available during the course of the shutdown.

The sudden spread of COVID-19, and the resulting closures and additional burdens, have forced families throughout Pennsylvania to make immediate decisions and difficult changes. In this moment characterized by anxiety and chaos, you will make things easier both for yourself and for your children, to take the time to talk openly and sincerely with your co-parent to find ways to be flexible and cooperative with each other, for the sake of your children.

UPDATE 3/23/20: Governor Wolf has issued a stay-at-home order for multiple counties including Allegheny County, that will take effect at 8:00 p.m. today. You can read the official announcement here. One exception to the restriction is “Travel required by… court order.” Subject to further developments and governmental determinations, we believe that the stay-at-home order for the greater Pittsburgh area due to the COVID-19 Coronavirus pandemic does NOT supersede court-ordered child custody exchanges. A parent traveling for a custody transfer during the pandemic should have a copy of the child custody Order of Court ready to show to a police officer, if he or she is stopped. Please note that this is general information only, and that you should direct specific questions to your local child custody lawyer.

UPDATE 3/24/20: Allegheny County Family Division has issued an Administrative Order that Allegheny County Orders of Court for custody of children remain in effect, and are unaffected by the stay-at-home order “with due consideration for the safety of the child.”

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If you need the help of an experienced family law attorney for your shared legal custody case in Penn Hills, Edgewood or Monroeville, call our office to set up a personal consultation with an experienced Pittsburgh area child custody enforcement lawyer and to learn how to get the most out of your child best interests dispute. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

School choice disputes: where will your child go to school?

February 9, 2020 · by Pittsburgh Family Law Services, P.C.

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“Children learn more from what you are than what you teach.” – W.E.B. Dubois

Back to School… but which one?

Deciding where your child will go to school can be a very personal and oftentimes emotional decision, even for two-parent households. You might have a personal history with a specific school, and might even want your children to learn from some of your own former teachers. Perhaps you chose your current neighborhood for the sake of its school system. No matter the reason, many parents have very strong and specific educational preferences for their children. In custody disputes between parents of school-age children, issues of school choice often need to be addressed. If you face a dispute over who gets to pick your children’s school, here are a few points to keep in mind.

If you can, discuss the subject with your co-parent. Describe the outcome you would prefer and why you think it is the right decision, and ask what your co-parent thinks. Listen to the answer, and consider it seriously. Consider whether there is an alternative way to address each parent’s concerns outside of a court battle, and also whether one possible outcome might put an unsustainable burden on the other parent or the children, when compared to the other outcome.

You should also discuss this issue with your local child custody attorney, just as soon as you have reason to know that you and your co-parent might disagree about it. Courts seldom move quickly, and too many parents wait to raise the issue until the summertime, joining the crowd of other last-minute parents who need quick decisions from hard-pressed judges over where their children will go to school in the fall. When that happens, it is more likely that your family court judge will have to make a snap decision about which school your child will attend, at least temporarily, simply because the school year is about to start and there is no time for more thorough consideration. Given an opportunity, Judges prefer helping parents reach agreement, or (if that is not possible) to give both parents a fair and full hearing before making such an important decision. Discussing the matter as early as possible with an experienced family law attorney will help ensure your best opportunity to make your case to the court.

A common misconception is that a Pennsylvania judge will choose to send your child to the “better” school district, or will favor private school over a public education. This is very much a myth; it is seldom that simple. Judges understand that you and your co-parent know your children far better than they ever can. They also know that while some children perform better in a large district with many resources, others might flourish best in a smaller school with fewer students and more individualized attention from teachers. Some private schools offer top-level academic programs which help some children, whereas others may have institutional issues such as falling enrollment or insufficient funding. Your children’s friends might attend one of the two schools. There are other considerations that relate to the parents rather than to the schools, such as their relative economic means, their own respective educational backgrounds, how involved each of them has been up to now in the children’s education, whether one parent is more accommodating or informative toward the other parent in educational matters, and what agreements they have made in the past about their children’s education. The logistics of each possible outcome also matters; perhaps one outcome will allow the current custody arrangement to remain in place, whereas the other outcome might require a disruptive change to your children’s schedule. The focus of the court is always upon the best interest of the child, viewed holistically.

This is why, when a judge makes a decision in a school choice dispute, the order is often framed as awarding “sole legal custody for the purpose of school choice” to the selected parent (or similar phrasing). Judges prefer to maintain parents in equal provisions of authority over their children, limiting one parent’s leverage over another to ‘either/or’ situations such as school choice. Even then, both parents remain equally-entitled (and expected) to participate fully in the children’s education at the school selected by the choosing parent, and each will retain full access to academic records.

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If you need the help of an experienced family law attorney for your shared legal custody case in Southside, Lawrenceville or Homestead, call our office to set up a personal consultation with an experienced Pittsburgh area child custody lawyer and to learn how to get the most out of your parental litigation dispute. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

Navigating extracurricular activities in your custody case

November 25, 2019 · by Pittsburgh Family Law Services, P.C.

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“We are apt to forget that children watch examples better than they listen to preaching.” – Roy L. Smith

Separated parents often find themselves fighting over their children’s extra-curricular activities. Disagreements can become heartaches: which activities and programs to choose, how many are too many, whether children may be signed up for activities during the other parent’s custodial time, and what happens when one parent declares an activity too dangerous, too time-consuming, or too expensive. Making decisions about extra-curricular activities is a legal custody issue, and usually that means the court expects parents to work together to figure these things out. When the “together” part turns out to be easier said than done, disagreements can be brought to court.

Often, children will be permitted to continue participating in activities they were already involved in before the court became involved. There are always exceptions, such as if a child no longer wants to participate, if the costs go up drastically, or if the activity itself has changed in a way that makes it objectionable to a parent. Most activity disputes that end up in court have to do with new activities, especially if one parent’s decision to enroll the child commits the other parent to supporting the child’s involvement in the activity during his or her own custody time.

When parental disputes like this do end up in court, judges tend to favor children being permitted to participate in extracurricular activities that appeal to them, and if that is the court’s decision both parents will be expected to ensure that the child is able to participate fully. However, judges know they are poor substitutes for parents when making these decisions, and they will still expect parents to coordinate together directly for the benefit of their children. Coordinating and consulting with your co-parent is not just about checking in and asking permission, but also is about making sure that if you are not inadvertently scheduling a commitment that occurs at the same time as something else your child is already scheduled to attend. Many parental disagreements happen because one parent chose not to check in with the other to confirm there were no timing issues with the activity.

Parents often can more effectively resolve issues arising from extra-curricular activities (and many others) by participating in a program of co-parenting counseling. Having a structured, refereed forum in which each parent is able to raise address his or her concerns is often far more effective – and far less expensive – than going to a judge and letting the court tell you both how you must raise your children. The vast majority of disagreements can be resolved by this type of dialogue in a way that litigation can never do.

Of course, it is not always possible to resolve parental disagreements without court intervention. This is often true when one parent views an activity as being particularly dangerous or morally objectionable, if one parent schedules activities to interfere with the other parent’s time without advance agreement, or if the activity will require substantial travel or a large commitment of money or time. In these situations, the court has the power to give one parent the overriding authority to make such decisions.

If you and your child’s other parent disagree about extra-curricular activities and you are considering taking the matter to court, it is important that you speak with an attorney before you take any action. An experienced attorney can help you to identify whether the disagreement is one that is better addressed in co-parenting counseling or by other means, or whether it is worth the effort to bring it in front of the judge.

If you need legal assistance with your physical custody case in Pittsburgh’s Southside, Upper St. Clair or Mt. Lebanon, call our office to set up a personal consultation with an experienced Allegheny County child custody attorney and to learn how to get the most out of your co-parent dispute. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

Pennsylvania child custody law is changing: can grandparents and non-parents still file?

May 11, 2018 · by Pittsburgh Family Law Services, P.C.

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“Remember that children, marriages, and flower gardens reflect the kind of care they get.” – H. Jackson Brown, Jr.

The most fortunate children grow up being loved by many adults besides their parents, but loving a child cannot by itself confer the right to claim custody of that child in Pennsylvania. Only people who have “standing” under the law may ask a Pennsylvania family court to grant them an award of custody.

On May 4, 2018 Pennsylvania Governor Tom Wolf signed into law Senate Bill 844, which makes some major changes to who can petition a PA family court for child custody. It affects grandparents’ rights to ask for custody of their grandchildren; and under certain circumstances, it grants standing for the very first time to third-parties such as aunts, uncles and other close relatives to sue for custody. The new law takes effect on July 3, 2018, sixty days after being adopted.

What is “standing” in a Pennsylvania child custody case?
Standing, for purposes of the law, has to do with who has the right to make a claim before the court, and to have that claim heard. Going to court in Pennsylvania was never meant to be a free-for-all; you must have a reasonable basis to ask for what you want the court to grant. If you are a parent, you always have standing to request a PA court to determine your custody rights toward your own children… but probably not to ask that same court to make decisions about my children.

Having standing to file for custody of kids does not mean that you will win, of course. It just means that you have the right to make the request. You still will have to back up your claim according to the standards set under PA child custody law, and to convince a judge that the custody arrangement you want to establish is the right outcome.

No matter how much you love a child nor how committed you may be to that child’s well-being, the courtroom door will be closed and barred against you if you lack standing to make the claim.

Who can sue for any form of physical and legal custody of a child in Pennsylvania?
Pennsylvania child custody law makes a distinction between physical custody (the right to obtain the physical presence of a child) and legal custody (the right to participate in the parental decision-making process over that child). Likewise, there is a difference between the kind of standing that will let the claimant ask for any form of physical or legal custody over a child, and the kind that sets a lower standard, and that is limited to claims for partial physical custody or supervised partial physical custody.

You can make any claim for physical and legal custody of a child if (and only if) you fit into one of these categories:

Parents. That’s no surprise. If you are a child’s parent whose parental rights have not been terminated by a court (for example, by adoption), you can make your claim and be heard.

A person who stands in loco parentis to the child. “In loco parentis” standing applies to an adult who is not a parent to a particular child either by blood or by adoption, but whose relationship with the child was begun by a blood (or adoptive) parent in anticipation that it would become indistinguishable from a parental relationship. In practice, this means that the child has resided with the adult who claims in loco parentis standing Step-parents often can claim this kind of relationship, as can grandparents who have, in effect, become parents to their grandchildren due to the absence, incapacity or disinterest of the actual parents.

Grandparents not in loco parentis, who meet a strict and narrow standard. To meet the standard, the claimant must be a natural grandparent to the child (step-grandparents don’t make the cut), and the relationship with the child must have begun with the consent of a parent (or by court order). The grandparent must have assumed, or be willing to assume, responsibility for the child. Additionally, one of three things must be true: (1) the child must have been found “dependent” by a juvenile court; (2) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity; (3) less than six months before the grandparent files the custody claim, the child had been living with that grandparent for at least twelve consecutive months before the child was removed from the home by a parent.

The above three categories were already in place under the old law. The 2018 change to PA child custody law establishes a fourth category of child custody claimant:

Any person who is able to establish by clear and convincing evidence: (1) that he or she has assumed or is willing to assume responsibility for the child; (2) that he or she has a sustained, substantial and sincere interest in the child’s welfare ; and (3) neither parent has any form of care and control of the child. The person who meets this standard need not be a grandparent, or even a blood relative. Please note that this category does not apply where there is a current dependency proceeding involving the child, or where the child has been adjudicated dependent and the court has made an award of permanent legal custody.

Who can sue for partial physical custody of a child in Pennsylvania?
People seeking custody under this form of standing are subject to strict limitations in the kind of relationship they can ask the child custody court to support. These people may claim time to spend with a child, but without the authority to make parent-level decisions:

The parent of a deceased parent. Grandparents can claim access to a grandchild if their own child, a parent to their grandchild, has died.

A grandparent with whom the child has resided for at least a full twelve months, if the grandparent files the custody claim within six months after the child was removed from the grandparent’s home by a parent.

The 2018 change to the Pennsylvania custody code also grants standing to file for custody to:

A grandparent whose relationship with the child began either by a parent’s consent or by court order, when the parents have commenced a custody proceeding and when the parents cannot agree over whether the grandparent should have custody.

Who lost standing when the law changed?
Grandparents are no longer able to file for partial physical custody simply because the parents of their grandchild have been separated for six months or longer, or because the parents are parties to a divorce proceeding.

If you need legal assistance with your grandparents’ rights case or otherwise protecting children you are caring for, call our office to set up a personal consultation with a Pittsburgh child custody law attorney. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

Child custody in Pennsylvania

November 8, 2013 · by Pittsburgh Family Law Services, P.C.

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Generally
Before a couple separates, there is no established “custody” of the children, and neither parent has more rights toward the children than the other. It is important for parents to realize that even if their romantic relationship is ending, their relationship as parents will continue as long as they live; they are stuck with each other, for good or ill. It can be extremely difficult to avoid letting the problems between the adults spill over into the parenting, but insulating children from those disputes is ultimately the best and most constructive thing to do. There is simply no substitute for two parents working together in the best interest of their children, and letting the children see their parents continuing to cooperate after they separate can ease their transition into the new situation, however it works out. Remember that no lawyer or judge can love your children the way you do, and no one is more qualified to decide what is best for children than their parents. Finding themselves in the middle of disputes between their parents is traumatic for children, even if it is sometimes unavoidable. Never forget that for children, particularly young children, you and the other parent are their world.

No matter how willing you are to keep adult issues between the adults, however, sometimes a parent is forced into dispute by the actions of the other parent. In that instance, the court is available to address the dispute and attempt to bring stability to the situation. Bear in mind, however, that not only can custody litigation be very expensive and personally difficult if matters do not resolve through settlement, it places the decision-making power into the hands of a judge who is likely to presume until proven otherwise that both of you are competent, capable parents who simply cannot agree about the welfare of your children. It is also true that custody litigation can sometimes be a necessary “wake up call” to an over-controlling parent whose actions are interfering with the other parent’s relationship with the children.

Custody rights are viewed in Pennsylvania as belonging to your children, rather than either to you or to the other parent. Should a custody matter be brought before a family court, that court will have only one consideration: the best interest of your children. It is important to realize that no court will care how hurt you might be over the situation, or how outraged you might be, or how much you miss your children; a judge will be deaf to all arguments based on those concerns, and will focus only on your children’s welfare.

Because the welfare of your children is at stake, it is often a good idea to be proactive about custody issues; that does not always mean using a court as a first resort, but it does mean trying to stabilize the situation and reach agreements, if possible, while getting as much information as you can to help you decide what to do in the event that no agreement can be reached. Your divorce and family law attorney can advise you not only about your options in court, but also about possible approaches to the situation (and to your co-parent) that may allow you to resolve your situation without litigation.

Court-ordered programs
Courts recognize that a judge makes a poor substitute for a child’s parents. When a parent files a custody dispute in most counties in Pennsylvania, both parents (and sometimes the children) will have to attend court-mandated dispute resolution programs. In Allegheny County, for example, the parents will have to participate in the Generations Program, consisting of an educational seminar, age-appropriate programs for children between the ages of 6 and 15, and a two-hour mediation session. Parents will sometimes also be ordered to participate in a “co-parenting counseling” program, in an effort to improve communication between them and to give them an opportunity to air and discuss grievances in a protected environment. These programs often do lead to settlements, so it is a good idea to go into them with an open mind, even if you are skeptical about how useful they are likely to be.

Physical custody and legal custody
There is a distinction in Pennsylvania between “physical” and “legal” custody of your children. Physical custody identifies which parent has the right to take the children from the other parent at a particular time. Legal custody identifies who has the right to be notified about matters affecting the children, who has access to information and records about them, who has the right to be consulted before decisions are made about them, etc. “Visitation,” as opposed to physical custody, is a much weaker relationship. There are rare occasions (usually involving violent behavior) in which a parent is limited to supervised visitation.

Many custody relationships between separated parents are based on one parent having primary physical custody, with the other parent having partial physical custody (such as every other weekend with time during weekday evenings, with arrangements for holidays and vacations), although the trend in Pennsylvania appears to be to maximize each parent’s involvement with the children in a shared physical custody arrangement, to the extent possible. Whatever the physical custody arrangement, both parents usually share joint legal custody in recognition that neither of them should be forced to become a part-time parent. Only in rare circumstances does a parent get an award of sole custody of a child.

There is no ‘magic age’ at which children get to decide for themselves between their parents. Judges often will talk to the children in a disputed custody situation, but will not automatically allow a child to select his or her own custody arrangement; instead, judges will take the entire situation into account, and will decide accordingly.

If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call me to set up a personal consultation. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.