FAQ - CHILD CUSTODY

What is the difference between physical and legal custody?

Physical custody: This just denotes who has physical control over the child at the time.

Legal custody: This is the right to make and partake in major decisions (such as educational, medical, religious) on behalf of the child.

The vast majority of parents have shared legal custody; meaning that they have to talk and work with the other parent in deciding these issue. Sole legal custody is when only one parent makes all the decisions for the child.

What kind of physical custody could I get?

A parent can have either shared custody, i.e, 50/50; primary custody – the parent whom the child resides with most of the time; partial custody – the parent who has 12 overnights or less with the child each month, - supervised custody – this parent cannot be left unattended while with the child or sole custody – when the other parent has no physical custodial right – very uncommon.

What is an Expedited Custody Petition?

This is where a matter needs immediate court attention but is not an emergency. Thee time-sensitive situations for which you may get an expedited hearing include: when you believe the other party has been charged with a crime and is a risk to the child's safety, the child needs urgent medical or educational attention, you are being denied access to the child, or the other party has changed the terms of the custody arrangement without your agreement. You may only file expedited petitions on a Monday, or if the court is closed on Monday, then on Tuesday. You must also file one of the following petitions with you expedited filing: Complaint for Custody, Petition to Modify, or Petition for Contempt

What is the criteria for filing an Emergency Petition?

These filings are reserved for cases that must be addressed the same day, such as those involving extreme danger to the child. To file a Petition for Emergency Relief, you must already have one of the following petitions pending or you may file one at the same time the Emergency Petition is filed: Complaint for Custody, Petition to Modify, or a Petition for Contempt.

If you need help preparing your custody petition, go to the Intake Unit of Philadelphia Family Court, Room M-6 at 34 S. 11th Street, Philadelphia, PA and the staff will help you. Bring any papers or evidence that you may have to substantiate your belief that there is an emergency. Otherwise if you prepared your own petition, file it with the Clerk of Court of Family Court at 1133 Chestnut Street.

After filing the petition, A Master will decide that day whether to grant your emergency petition. Be prepared to wait most of the day for a decisions. If you get emergency custody, the court will schedule a hearing, usually within 10 days. At this hearing the Master will determine if the emergency custody order shall remain in place, modify it or dismiss it. Testimony will be taken from both parties.

How long will a custody trial take from the date the complaint is filed?

Due to the backlog of cases in the Philadelphia system, I would say it would take about 9-12 months before your trial is completed.

What is the possibility of a father getting primary or shared custody?

A few years ago I would say it was an uphill battle. Today, these is no gender bias or presumption that the child belongs with the mother. Many of my men clients have primary or shared custody. However, each case is fact specific and cannot be judged or compared against another case. I don't want to hear, "Well my neighbor has " I don't care. You have no idea what goes on behind closed doors or what evidence the judge heard to award that parent primary or shared custody.

If you are both good parents, live pretty close together, have the ability to maintain a minimal degree of communication with the other parent, and if you were also integral in seeing that your child's daily needs were met while the parties were together, you certainly have a change. No promises though – a consult is needed to determine the facts of each case.

I fled a custody complaint what happens next?

All custody petitions and modification of custody are sent to the Custody Master's Unit. Your first court appearance will be before a Master. Depending on what you are seeking, it will be set for a conference or a hearing. The Master's role is to try to have the parties reach an agreement. If the parties are able to come to a final agreement, the case is over and an order is prepared. Many times the parties can only reach a temporary agreement. In this case, an interim order is entered pending the outcome of the custody trial.

Should the parties fail to reach any kind of an agreement, the case will be given a trial date if the matter was scheduled for a conference. If the matter was schedule for a hearing, testimony will be taken and the Master will render a proposed order. Upon receiving the Master's recommendations in the mail, you have 20 days to file Exceptions if you disagree with the provisions. Upon filing the Exceptions, you will receive a trial date before a judge.

What happens at a custody trial?

Each parent testifies as to what type of custody schedule they believe is best and "in the best interest of the child". If one parent is trying to remove the child into another school district or if they are asking for overnight visits during the week, this is usually be very difficult to accomplish. The judges require the parents to bring the child's school records to court and also speaks with the child behind closed doors without the parents present. If the child is doing well in school, it is very unlikely that the judge will disrupt the child's weekday schedule. A summer and holiday schedule is also implemented.

It is fair to say that most judges do not want to disrupt a child's schedule. However, each family is different with a different set of problems and issues. Some facts that are presented to the judge may require a change in custody or an increase or decrease in the custodial schedule. Only after a consultation and learning all the facts of your case can a more tailored prediction be offered.

What age does a child have to be to testify in court?

There is no strict age requirement and certain judges have their own criteria. If a child is relatively young, age 6, 7, 8, many judges will speak to them just to see if all is ok. Their preference is generally not given any real weight unless there is a significant problem which they can articulate. The older the child, the more weight that child's preference will have. I have found that at the age of 14 and on, the judge will seriously consider what the child wants as long as he can express a reasonable basis for his or her desires.

Can I request Mother to be drug tested?

Yes, but if you are requesting it of her, they will order you to go as well. You will be required to go to 1801 Vine Street forthwith (immediately).

Can I order a Home Investigation on the other parent?

Yes, but it's usually a waste of time and money. A home investigation will cost you $200. The other party usually is given advance notice when the home investigator will be arriving. By the time the investigator gets there, the home is clean and refrigerator is full. The only time a home investigation is helpful is if the other party is living in squaller and the conditions are deplorable.

Should I request a Mental Health Assessment to be performed on Father?

If you are requesting a mental health assessment of a party, there is a $200 fee that must be paid in advance. More than likely the judge will order that you get one too. There is some benefit to having an assessment complete when a party exhibits some sign of mental health issues or is trying to alienate the children. Mental Health Assessments are not done in all cases. Before you ask for one, think twice. Although you may think that you are the more stable parent, you may be dismayed when you see the results of your report.

Mother is brainwashing the kids and saying nasty things about me what do I do?

Unfortunately these allegations occur far too frequently. Many times this will be a violation of the custody order. You can file for contempt in the hopes that the judge will yell at her to stop behaving this way; or you can file for modification of custody, either asking for more time, or for primary custody.

By filing a modification of custody you are heading into a battle, but if it can be proved that the Mother is trying to turn the child against you, you stand in a much better position to have custody modified or changed.

My kids do not want to see their father Do I have to send them?

Yes. Your role as the mother is to promote the visit. I do not care how old the children are, they need to see their father. If there are issues that needs to be resolved between a child and the father, then seek counseling. But the children are to go with father on father's custodial days. You need to tell the kids they must go; otherwise a contempt may be filed against you.

Many times the children do not want to go with their father because they are hearing bad things about him at home. If this is done intentionally or not, the end result is that the children are becoming semi brainwashed and/or alienated. They will not want to go and see their father because they won't want to upset their mother. If this is your situation, you need to stop badmouthing and rectify the situation. Judges do not look kindly on this type of behavior and parents who attempt to alienate the other parent, run the risk of losing custody.

Father is not picking up the kids when he is supposed to. What can I do?

Sorry to say, nothing much. You cannot force father to take the kids on his days. If this becomes an ongoing issue, you can move to modify the custody order to have those days removed. You can also file for contempt, but I find that to be a waste of time. What would a contempt solve? A court will not lock him up for contempt for not utilizing his days – at best, move to modify to have the days removed.