Child Custody
Custody is the most emotional issue in family law for obvious reasons. The best advice: Do everything possible to work with your spouse/ex-spouse to reach an agreement that everyone (including the children, if they are old enough) can tolerate and accept. Remember, your children need BOTH parents.
There are a few vocabulary words you will need to familiarize yourself with in order to understand custody:
Shared (or joint) legal custody: Both parents make the decisions (jointly) regarding education, religious training, medical treatment, and issues that effect the general welfare of the children. Shared legal custody has nothing to do with how much time each parent has with the child. Note: In most cases, the parties have shared legal custody, despite who has primary physical custody.
Custodial Parent: The parent having custody of the children the majority of the time.
Non-custodial parent: A parent who has physical custody of his/her children less than fifty-percent (50%) of the time.
Shared (or joint) physical custody: Each parent has a time of physical custody of the child away from the resident of the other parent (as opposed to visitation as defined below). "Shared" does not necessarily mean that the parties share the child an equal amount of time.
Primary physical custody: The parent having physical custody of the children the majority of the time.
Partial Physical Custody: The parent having physical custody of the children less than fifty-percent of the time.
Visitation: One parent has full physical custody of the child and the other parent is limited to visits at the home of the custodial parent or with some neutral third party. The parent having only visitation privileges with a child is not permitted to remove the child from the premises. Visitation orders are usually seen where the parent has abused the child or has a drug/alcohol problem. A parent having only visitation privileges may not have shared legal custody.
Keep in mind, the term visitation as used in this definition is fairly new. For many years, visitation meant the time a parent had custody of his/her children. The language has changed and it has led to some confusion. It is not uncommon to hear someone claim to want visitation when what is really desired is partial custody.
In most cases, parties will have shared physical and shared legal custody of the children with one parent having primary physical custody. In some cases, the parties may have an equal sharing of physical custody of the children. In these cases, the children may go back and forth between mom and dad's as often as every few days, or less frequently, depending on the ages of the children
A word about the children's right to choose. The primary obligation is to focus on what is best for the children in determining custody. When children express a preference, the court may take that request into consideration but only as one factor among others in considering the best interests of the children. There is no set age which child's preference is considered. It is considered on a case-by-case basis.
If the parties are unable to reach an agreement regarding custody of the children, a complaint for custody is filed, and a custody conciliator is appointed to the case. As part of the custody procedure, both parents are required, by court order, to attend a "parenting class" presented at the courthouse. This is not to teach parenting skills. This class is to impress upon the parents the adverse effects of custody litigation on the children. The hope is that the class will encourage parents to consider the children's best interest (and not their own) when determining custody. The parties are also assigned to a mediator and directed to attend a mediation session. If the parties can reach an agreement, the mediator may draft the custody order for the parties. If the parties are unable to agree at the mediation then the parties will attend a custody conciliation conference with a custody conciliator.
A custody conciliator is an attorney appointed by the court. It is the conciliator's job to hold a conference and to set a custody schedule. The conciliator will talk to the attorneys (sometimes without the parents present), the parents, and occasionally the children.
Every effort is made to minimize the children's participation in the custody conference. Children do not attend the custody conference, unless requested by one of the parents. The conference is informal- no sworn testimony, no court reporter, and usually no other parties are permitted to participate. (This is not the place to bring your witnesses about what a wonderful parent you have been, as they will not be permitted to "testify" at this stage.
If a party is dissatisfied with the recommendation regarding custody after the conference, psychological evaluations may be ordered. Psychological evaluations are time-consuming and costly. It involves the use of a psychologist to evaluate all the members of the immediate family and may include the boyfriend/girlfriend of a parent. The psychologist will base his/her recommendation on psychological tests and interviews with the parents and the children. Sometimes the psychologist will conduct a home visit.
It is rare to have a custody trial in Chester County. Fortunately, most of the custody cases are settled through the use of the conciliators. Custody trials and their effects are emotionally trying to children. Parents are strongly advised to give serious considerations to the effect a trial will have on their children and weigh that against the recommendation of the conciliator.